in the year 1890, and has been operated since that time. That the production of the wells has largely decreased, and at this time the field is almost exhausted.

"Conclusions of Law.

In

"The question for determination in this case is a new one. Counsel have not referred us to any case in which this question was involved; nor have we, in our examination of the case, found any. The question here is to what extent an owner of oil wells may use mechanical devices for bringing the oil to the surface. operating his own wells, may he use appliances which diminish the production of his neighbor's wells? It is not denied that a gas pump will to some extent affect the production of oil wells located in the immediate neighborhood of the well to which the pump is attached, if the sand from which the oil is obtained is of a porous, pebbly nature, as is the case in the McCurdy field. To some extent, the law governing the use of subterranean waters by the owner of the surface is applicable to the production of oil. In regard to wells and springs, the law is well settled that the owner of land is not entitled to recover for injuries to his wells and springs caused by the acts of an adjoining owner, if the injury results from a lawful exercise of the rights of the adjoining owner, on his own property, and without malice or negligence. An owner of land may dig a well upon his property, and if, in so doing, he taps the hidden flow of water which supplies his neighbor's spring, it is a loss to the neighbor for which the law provides no remedy. Lybe's Appeal, 106 Pa. St. 626. In Coal Co. v. Sanderson, 113 Pa. St. 145, 6 Atl. 456, it is said: 'It must be conceded, we think, that every man is entitled to the ordinary and natural use and enjoyment of his property. He may cut down the forest trees, clear and cultivate his land, although in so doing he may dry up the sources of his neighbor's springs, or remove the natural barriers against wind and storm. In sinking his well he may intercept and appropriate the water which supplies his neighbor's well.' In this case the defendant has the exclusive right to bore for oil on the farm of the Boyce heirs adjoining a farm owned by plaintiff. The right being a lawful one, the defendant is at liberty to use all lawful means to obtain ‘all the gas and oil contained in, or obtainable through, the land.' Gas Co. v. De Witt, 130 Pa. St. 249, 18 Atl. 725, 5 L. R. A. 732. And to that end it may resort to the use of all known lawful modern machinery and appliances.

"The plaintiff's claim is that the use of a gas pump in the production of oil is unlawful, because, as he alleges, by its powerful suction the oil and gas are drawn from his adjoining farm, thereby decreasing his production. Plaintiff assumes that there is a certain fixed

which he has an absolute property. True, they belong to him while they are part of his land; but when they migrate to the lands of his neighbor, or become under his control, they belong to the neighbor. On this point, in Brown v. Vandergrift, 80 Pa. St. 147, Judge Agnew, in referring to the production of petroleum, says: 'Its fugitive and wandering existence within the limits of a particular tract is uncertain.' And in Gas Co. v. De Witt, supra, Justice Mitchell says: 'Water and oil, and still more strongly gas, may be classed by themselves, if the analogy be not too fanciful, as minerals feræ naturæ. In common with animals, and unlike other minerals, they have the power and the tendency to escape without the volition of the owner. They belong to the owner of the land, and are a part of it, so long as they are on or in it, and are subject to his control; but when they escape and go into other land, or come under others' control, the title of the former owner is gone. Possession of the land, therefore, is not necessarily possession of the gas. If an adjoining or even a distant owner drills his own land and taps your gas, so that it comes into his well and under his control, it is no longer yours, but his.' From these cases we conclude that the property of the owner of lands in oil and gas is not absolute until it is actually within his grasp, and brought to the surface. If possession of the land is not necessarily possession of the oil and gas, is there any reason why an oil and gas operator should not be permitted to adopt any and all appliances known to the trade to make the production of his wells as large as possible? If If one may lawfully use a steam pump, may he not lawfully use a gas pump? In Ballard v. Tomlinson, 29 Ch. Div. 115, it was held that a landowner has the right to all of the percolating stream under his land, the court saying: "This percolating water below the surface of the earth is therefore a common reservoir or course, to which nobody has an, property, but of which everybody has the right, so far as he can, of appropriating the whole. The principle of natural use does not apply at all. The plaintiff, if he has a right to use anything in nature, has a right to exercise that user by all the skill and invention of which a man is capable; and it seems to me that as long as the plaintiff uses only lawful means as against his neighbor, however injurious or however artificial those means may be, his right to appropriate the common source is not diminished because he uses the most artificial or most injurious methods.' If it is lawful to take water from a substrata by the 'exercise of all the skill and invention of which man is capable,' we see no reason why it is not lawful to produce oil by those means, especially as the possession of the soil for purposes of tillage gives the owner no actual possession of the oil and gas

underlying it. The evidence shows that the gas pump has been in constant use in all fields, except one, to a greater or less extent, since the discovery of oil; that its use has been generally recognized by all operators; and that it is only used on wells in territory which is almost exhausted. Gas pumps have been used in this field for almost a year past, within 1,500 feet of the wells of both plaintiff and defendant, without objection. Their cost is within the reach of all operators, and, when used by all, none are injured.

"It seems to me that if it is unlawful to use a gas pump, because its use may perhaps lessen the supply of gas in the well of an adjoining owner, and thereby diminish his production of oil, for the same reason it is unlawful to use a steam pump; and, if neither gas nor steam can lawfully be used in pumping, very few wells at this day will pay drilling and operating expenses.

"In view of the testimony and authorities above cited, we conclude that the use of a gas pump by defendant, under the circumstances of this case, is not an unlawful act that should be restrained by injunction; that the plaintiff is not entitled to the relief prayed for; and that the bill should be dismissed. And now, July, 1899, the preliminary injunction heretofore granted in this case is dissolved, and the bill dismissed, at costs of plaintiff."

A. M. Brown and John D. Brown, for appellant. R. W. Cummins and J. McF. Carpenter, for appellee.

PER CURIAM. Though this particular question is somewhat of a novelty, the principles which control it are very familiar, and perfectly well settled. They are well expressed in the opinion of the learned court below, and, on the findings of fact and conclusions of law there contained, we affirm the decree.

In re BRYCE'S ESTATE. Appeal of KEVAN et al. (Supreme Court of Pennsylvania. Dec. 30, 1899.)

WILLS-REFUSAL OF GIFT-ELECTION.

Where testator devised land to his son J., and directed that a house be erected thereon of

the value of one devised to another son, but J. declined to have the house built, saying he never wanted a house on the land, and there is nothing to show an election to take the value of the house in money, the heirs of J. on his death are not entitled to an award from testator's estate of the value of the house.

Appeal from orphans' court, Allegheny county.

In the matter of the estate of John Bryce, deceased. From a decree in distribution, John Kevan, administrator of John P. Bryce, and another, appeal. Affirmed.

Joseph Forsythe, for appellants. George J. Wolf, for appellee.

FELL, J. The testator devised to his son John P. Bryce three lots of land, and directed by his will that a house should be erected on the lots equal in value to a house which he had erected on other lots, devised to another son. John P. Bryce had, before his father's death, lived with his mother, who was executor of her husband's will; and he continued to live with her until his death, which occurred eight years later. The house was not built, because he did not want it built. The appellants claimed to have awarded to them from his father's estate the value of the house in money. This claim was resisted on the ground that he had declined to accept his father's gift. Because of the implied benefit the assent of a donee will be presumed, and the burden of proof is upon those who allege a refusal to accept. Tarr v. Robinson, 158 Pa. St. 60, 27 Atl. 859. But a mere refusal to accept does not raise a presumption of an election to take something else. An election must be affirmatively shown, either by proof or declarations or of unequivocal acts from which an election may be inferred. The testimony presented at the audit was exceedingly meager, but it was clear, distinct, and unimpeached, and it fully warranted the con clusion reached by the learned judge of the orphans' court that John P. Bryce had declined to have a house built. The refusal was definite. He said he never wanted a house built on the lots. And there was nothing to show an intention to postpone the right, or to show an election to take the value of the house in money. The decree is affirmed, at the costs of the appellants.

EXECUTION-SALE-DISTRIBUTION OF PROCEEDS-PRIOR LIENS.

A judgment creditor who sells the land of the debtor on execution sale, against which there are apparent prior liens of record, should rule the sheriff to return his writ, and pay the money into court, for distribution by the court, as required by the acts of June 16, 1836, and June 28, 1871; but after the sheriff has paid the money over to prior lienholders, and has taken their receipt, it is too late for the judgment creditor to petition the court for the appointment of an auditor to make distribution, on the ground that the prior liens were fraudulent and void, since the money was never within the grasp of the court for distribution.

Appeal from court of common pleas, Beaver county.

On petition by Kate H. Semple for the appointment of an auditor to make distribution of a fund raised by sheriff's sale on an execution in her favor against James M. Semple. From an order discharging a rule to show cause why an auditor should not be appointed, petitioner appeals. Affirmed.

Edwin L. Mattern, for appellant. A. S. & W. S. Moore, for appellees Strassburger & Joseph. Frank H. Laird, for appellee Marion Stevens.

DEAN, J. The appellant held a judgment against James M. Semple (No. 64, September term, 1896, common pleas of Beaver county), on which she issued execution, and sold the interest of defendant in certain land in said county for the sum of $1,530. This sum the sheriff, by schedule duly returned, distributed to two prior liens of record, one of Straussburger & Joseph, and one of Marion Semple, which, with costs, exhausted the fund in his hands. The appellant, in petition to the court, averred that these judgment liens were collusive between plaintiff and defendant, and therefore void; further, that the irregularities incident to their entry of record were flagrant that they could not be treated as record liens entitled to distribution. Therefore she prayed the court to appoint an auditor to make distribution of the fund raised by the sheriff's sale. The court awarded a rule to show cause why an auditor should not be appointed, and, after hearing on petition, answer, and evidence, found that neither of the averments in the petition was sustained. Therefore the rule was discharged, and we

have this appeal assigning for error the judgment of the court.

It is not necessary to review the findings of fact and conclusions of the court. On the settled law, her method of proceeding is incurably irregular, and cannot be sustained. The purchase money of the land never was within the grasp of the court for distribution by the court or by an auditor acting for the court. The sheriff undertook to distribute it at his own risk, did distribute it, and pay it over to apparently prior lien creditors of record, and took their receipts. The appellant could have ruled the sheriff to return his writ, and pay the money into court, for distribution by the court. She did not do this, but seeks to attain the same end by inducing the court to review a distribution made by the sheriff. The acts of June 16, 1836, and June 28, 1871 (the general acts on the subject), gave to the courts no power to revise the sheriff's distribution made out of court before the return of his writ. The special act of April 10, 1862, for Allegheny county, afterwards extended to Schuylkill and Lehigh counties, did confer a power of revision of the sheriff's schedule of distribution on the courts of common pleas of those counties. But, as to counties under the general acts, the law is as announced in Williams' Appeal, 9 Pa. St. 270: "The practice of making orders for the distribution of money not paid in is erroneous, and ought not to be pursued, except where sanctioned by act of assembly. What gives the court authority is a grasp upon the proceeds of sale. Without this, they are powerless for its distribution, and much less so to determine conflicting rights in a summary way." Then, in Atkins' Appeal, 58 Pa. St. 92, we said: "It is supposed that there is a general practice to make distribution while the money is not paid into court. If there be such a bad practice, the sooner it is abandoned the better. It is directly in the face of what this court said in Williams' Appeal, 9 Pa. St. 270, recognized in Masser v. Dewart (1864) 46 Pa. St. 536, 537." Then, in Kauffman's Appeal, 70 Pa. St. 264, we again said: "Courts have no authority to decree distribution of a fund not within their grasp without the assent of the parties in interest." So, without regard to the questions of collusion and defectiveness of the exemplification of record of the judgments, this appeal cannot be sustained; for as appellant permitted the sheriff to schedule a distribution, and pay out the money, without asking that it be paid into court, the court had not power to disturb the schedule, or appoint an auditor to distribute a fund out of its possession. The decree is affirmed.

BOYD et al. v. WEBER.

(Supreme Court of Pennsylvania. Dec. 30, 1899.)

ESTATE TAIL-INSANE PERSONS-CONVEYANCES-STATUTE OF LIMITATIONS.

1. A devise to "Y., and such heirs of her body or children such as she shall leave living at the time of her death," is an estate tail.

2. When a deed is voidable for insanity of the grantor, a right of action to avoid it accrues to such grantor immediately, which right, and that of the persons claiming under her, are barred, after 30 years from such date, by Act April 22, 1856 (P. L. p. 532, § 1), declaring that no exception in any act of assembly respecting the limitation of actions in favor of persons non compos mentis shall stand, so as to permit any person to maintain any action for the recovery of land after 30 years shall have elapsed since the right of entry thereto accrued to any person within the exception aforesaid.

3. The one whose right of entry is referred to in Act April 22, 1856 (P. L. p. 532, § 1), which provides that no exception in any act of assembly respecting the limitation of actions in favor of persons non compos mentis shall stand, so as to permit any person to maintain any action for the recovery of land after "30 years shall have elapsed since the right of entry thereto accrued to any person within the exception aforesaid,' is that of the person under disability.

Appeal from court of common pleas, Greene county.

Action by one Boyd and others against one Weber. Judgment for defendant, and plaintiffs appeal. Affirmed.

William F. King, Andrew A. Purman, and James J. Purman, or appellants. E. E. Robbins, W. A. Hook, J. B. Donley, and Buchanan & Walton, for appellee.

MITCHELL, J. The devise to Elizabeth Yeater was clearly in tail. To Elizabeth, "and the heirs of her body," would be the usual form of an estate tail, and the addition "or children" is merely a cumulative description.

The phrase, "such heirs of her body, or children such as she shall leave living at the time of her death," is not materially different. It adds a qualification as to the second takers, but does not alter the words of limitation of the devise. Hiester v. Yerger, 166 Pa. St. 445, 31 Atl. 122.

Being an estate tail in Elizabeth, it was barred by her deed made for that purpose, in 1848. If, as alleged, that deed was voidable for insanity of the grantor, a right of action to avoid it accrued to her immediately, and after 30 years she, and all persons claiming under her, were barred by Act April 22, 1856 (P. L. p. 532, § 1). That act provides that no exception in any act of assembly respecting the limitation of actions in favor of persons non compotes mentis, etc., shall extend so as to permit any person to maintain any action for the recovery of land, after 30 years shall have elapsed since the right of entry thereto accrued to any person within the exceptions aforesaid.

It is argued that, as Elizabeth did not die until 1892, the right of entry did not accrue to plaintiffs until then. But it is not the right of entry of the plaintiff that must have accrued within 30 years, but that of the person under disability. The language of the statute is that no exception, by reason of the disabilities named, shall permit any person to maintain action after 30 years from the accruing of the right of entry to the person under disability. This excludes, not only the lunatic, but also every other person claiming under or by privity of title with her. This is the settled construction of the act. Hunt v. Wall, 75 Pa. St. 413; Hogg v. Ashman, 83 Pa. St. 80; Updegrove v. Blum, 117 Pa. St. 259, 10 Atl. 785. As the statute of limitations was a complete defense, it is not necessary to consider any of the other questions raised in the learned and ingenious argument of appellants. Judgment affirmed.

TUFTS v. PARK et al.

(Supreme Court of Pennsylvania. Dec. 30, 1899.)

TROVER AND CONVERSION-WHAT CONSTITUTES CONVERSION.

A landlord, who, at the request of a tenant in failing circumstances, and in arrears for rent, gives a supervision over the tenant's business, and takes charge of the cash, without taking possession of either the stock or fixtures, is not guilty of a conversion of the fixtures in the store, owned by a third person, and is not liable to such third person for the value of the fixtures, which were subsequently sold by the landlord, on a landlord's warrant, as the property of the tenant.

Appeal from court of common pleas, Allegheny county.

Action by James W. Tufts against W. G. Park and others for the conversion of a soda fountain. From a judgment in defendants' favor, plaintiff appeals. Affirmed.

Samuel McClay and William J. Barton, for appellant. Chantler, McGill & Cunningham, for appellees.

BROWN, J. The appellant and appellees agree that the sole question to be considered is, "Was there a conversion of this soda fountain by the appellees prior to the issuance of the landlords' warrant?" If the defendants had so converted it to their own use, the verdict in their favor, rendered by direction of the court, and the judgment subsequently entered thereon, cannot be sustained. The material facts in the light of which the question is to be determined can be readily condensed from the evidence. Goldaine, the tenant of the appellees, had become indebted in a large sum for arrearages for rent. Being so indebted, he had in his possession the soda fountain in controversy; and the right of the appellant, under the terms of his contract, to take possession of it before the warrant was issued, cannot be disputed. This right was not exercised. In his embarrassment Goldaine requested the appellees to supervise his business, and to send some one to his store to take charge of the cash received and pay bills to be incurred in running it. Hamilton, acting for Park Bros., and believing that the store could make money, consented to the arrangement proposed by Goldaine, and did take charge of and undertake to supervise the business, Goldaine remaining as tenant of the premises, and having charge of the

goods. Nothing was sold or transferred to the appellees. It nowhere appears that the landlords intended to or did purchase the stock and fixtures, and they could not have surrendered the fountain, to which they made no claim of ownership, and which was still in the possession of Goldaine. They could not have surrendered that over which they had exercised no ownership, and which they had no right to surrender to any one. Goldaine alone could have done this. If he had refused to surrender the fountain upon demand, the plaintiff had an instant remedy for the recovery of his property. The arrangement was simply for the appellees' supervision of the business at the request of the tenant, in the hope that, so supervised, it might yield better returns, and relieve him from his embarrassment. Called as a witness by the appellant, Goldaine testifies: "The arrangement was that Mr. Hamilton was to send a man down there to take a note of the cash that came in, and see how it was spent, and where it went to." The cash received was deposited in the name of Goldaine. The testimony of this witness again was that the arrangement simply amounted to this: That at his request, Mr. Hamilton, who believed that the business could be made to go, was asked to come, and take charge of the cash, "and give a supervision over the business." The goods, fixtures, and everything in the store continued to be the property of the tenant, and he was in possession of them and the premises until after the sale on the landlords' warrant. No agreement had been made that the arrangement with Hamilton was to last for any definite period. Goldaine could at any time have excluded him and his representative from the store. The appellees, neither directly nor through their representative, at any time claimed to be the owners of the fountain by purchase or transfer from Goldaine, but, on the other hand, on the 8th of June, 1897, sold the same as his (the tenant's) property on a landlords' warrant that had been issued after the experiment of their supervision of the business had been tried for several weeks without results anticipated. We can find nothing in the evidence to justify the allegation that the defendants had converted the property to their own use, and there was no error when the court said, "Under the testimony and the law, as we understand it, the defendants are entitled to a verdict in this case." The judgment is affirmed.