dence the ordinances of the city prohibiting posts, obstructions, etc. But it was proper to show that the action of those who erected these structures in the street was unlawful, and therefore negligent, for the purpose of charging the city with a duty in reference to such improper use of its streets in permitting such erections to be made in a way calculated to cause injury to persons using the streets."

Richmond v. Smith (Va.) supra, was an action to recover for injuries incurred when the plaintiff fell from a platform erected by a carnival association in the streets of Richmond, authority having been granted to the association by the city, in so far as it had power to do so, to erect structures in certain streets for about twelve days, for the giving of performances and spectacles. The court said: "The ordinance of the city authorizing the erection of the structure in question is relied on to defeat the claim of the plaintiff. The city had no power or authority, in the absence of a grant from the general assembly, to confer upon the carnival association the right to erect this structure in the public streets. No such authority is found in its charter, or the general law. On the contrary, the charter only gives the city authority to remove structures, obstructions, and impediments from the streets, and to prevent them from being encumbered or obstructed. The power and authority of the city is contained in its charter, and bounded thereby. It has no other or different control of the streets than is prescribed in the charter of the general statutes of the state. Having no legislative authority to grant the use of the streets for such purpose, the ordinance was a nullity, and in no way affects the plaintiff's right to recover in this case."

And in some instances, in denying the existence of power to permit the closing or obstructing of the streets for the purposes of sport or entertainment, the court has also laid emphasis on the fact that a private purpose was intended to be served. Augusta v. Reynolds (1905) 122 Ga. 754, 69 L.R.A. 564, 106 Am. St. Rep.

In

147, 50 S. E. 998, an injunction was requested restraining the erection of structures for a street fair along four blocks of a street, and obstructing it, to the extent of 75 feet in width, the street ordinarily being 180 feet wide. The court said: "The question to be determined in the present case is whether a street fair of the character described in the petition would be such an obstruction of a public street as would make it a public nuisance. It would not be a permanent obstruction, for it is only to continue one week. Being a temporary obstruction only, it is to be determined whether it results from a lawful purpose. The obstruction is purely for private gain. The fact that the promoter of the enterprise is a military company which is a part of the state Militia does not make it one inaugurated for a public purpose. It is to occupy not more than one half of the street. But the public is entitled to the whole of every street, as against anyone who places. obstructions therein for other than a lawful purpose. Com. v. Ruggles (1863) 6 Allen (Mass.) 588; 1 Wood, Nuisances, 3d ed. § 250. The power over streets given to municipal corporations under the ordinary grants in municipal charters does not authorize the municipal authorities, even by express ordinances, to permit the erection in streets of temporary "obstructions for purely private gain." An act amending the charter of the city declared that when the whole or any part of a street had ceased to be of general utility, it might be abandoned and donated to a use prescribed by the council. The court held that the vacation of the street under such statute was dependent on a termination of the street's utility, whereas the street in question was the principal business thoroughfare of the city, its use for the fair being limited to one week, and that there was nothing in the act in question, or elsewhere in the charter of the city, authorizing the city to permit such use of the streets.

And in Augusta v. Jackson (1917) 20 Ga. App. 710, 93 S. E. 304, wherein it appeared from the plaintiff's peti

tion that the city council had granted a license to a fraternal order to maintain a street carnival in certain public streets, the court said in a syllabus: "In the charter of the city of Augusta there is nothing that permits the city authorities to grant the use of its streets for the operation of an enterprise of the nature indicated by the plaintiff's petition. Especially are they powerless to grant to a carnival association the right to erect in a public street, and maintain during the period of a week's carnival, a shooting gallery which is to be operated for the amusement of the public and for profit to the owners, and in which revelers at the carnival are permitted to discharge deadly firearms, thereby endangering persons lawfully upon and using other streets, or other parts of such obstructed street. Augusta v. Reynolds (Ga.) supra."

In State v. Stoner (1906) 39 Ind. App. 104, 79 N. E. 399, a suit to enjoin the conducting of a street fair and carnival by a fraternal order, the court said: "But a town would have no authority to obstruct a street so as materially to interfere with its free use by the public, nor could it authorize another to do so, unless it could be shown that some necessity existed for such action. The authority to license a public exhibition does not necessarily carry with it the authority to give over gratuitously to such exhibition the exclusive use of the public streets." Judgment for the defendant was affirmed, however, the findings showing that while certain streets were partially occupied by the exhibitions, the occupancy was temporary and the ordinary use of the streets was not interfered with.

In Johnson v. New York (1906) 186 N. Y. 139, 116 Am. St. Rep. 545, 78 N. E. 715, 9 Ann. Cas. 824, 20 Am. Neg. Rep. 694, it appeared that a resolution had been passed by the board of aldermen of New York, authorizing the conduct of speed trials on a certain boulevard at a specified time. It was said: "The action of the defendants was al54 illegal in other respects than those relating to the rate of speed. It as34 A.L.R.-18.

sumed to grant to individuals the right to appropriate the highway for a private purpose, to wit, that of a race course, to the exclusion of the public. Authority reposed in the common council by the charter (§ 50), 'to regulate the use of streets and sidewalks by foot passengers, animals, and vehicles, to regulate the speed at which vehicles are propelled in the streets,' etc., gave no power to divert the highway from public to private The authority was to regulate public travel, not to exclude the public. . The occupation or the highway was to be exclusive in the parties to whom the permission was granted. Therefore, the race or speed contest held by the defendant was an unlawful use and obstruction of the highway, and per se nuisance.

use.

Where public benefit appears.

It has been held, however, that a street may be closed temporarily to permit its use for purposes of sport or entertainment, where such use is to be exercised for the public welfare or benefit. Simon v. Atlanta (1881) 67 Ga. 618, 44 Am. Rep. 739; White v. State (1896) 99 Ga. 16, 37 L.R.A. 642, 26 S. E. 742. And see the reported case (OWENS v. ATKINS, ante, 267). See also Wheeler v. Ft. Dodge (1906) 131 Iowa, 566, 9 L.R.A. (N.S.) 146, 108 N. W. 1057.

In Simon v. Atlanta (1881) 67 Ga. 618, 44 Am. Rep. 739, an action to recover for injuries incurred. when the plaintiff was thrown from his wagon by a rope obstructing a street crossing during the progress of a fire department drill, the court said: "An efficient fire department in a city like Atlanta is absolutely essential to the safety of life and property. Its efficiency depends upon its. drill, discipline, and the proper condition of its implements used in extinguishing fires. These are best subserved by drills, parades, and the practical use of their engines. These drills, parades, and use of their machinery can only be had in the public thoroughfares, and if it be necessary temporarily to keep these thoroughfares open rope by obstructions, or otherwise, temporarily stretched, and

thus closing certain streets leading to them, it is one of those limitations upon the use of public streets and the right of transit thereon to which the public must yield, since the public at large are, in the results, its beneficiaries. It was but a temporary and reasonable obstruction under the evidence, erected for the convenience and safety of the public, for the promotion of a system in which the public interest was vitally concerned."

In White v. State (1896) 99 Ga. 16, 37 L.R.A. 642, 26 S. E. 742, it appeared that the defendant had arrested the prosecutor, who was seated in his buggy on one of the streets being traversed by a military parade, for refusing to make way therefor. A statute provided for a certain number of parades yearly by the military, at times appointed by the rules of the organization, or by its commanding officer. The officer commanding any unit parading was given authority to arrest any disturber. The court said: "In times of peace the public highways in this country belong to the public, and are to be used by the public in a proper way in the prosecution of peaceful pursuits. Without express legislative authority no man or body of men can appropriate to their own exclusive use any of the public highways. It is competent, however, for the legislature to withdraw temporarily from the general public use any public highway, and devote it for the time being to a public use of a special character; and in the exercise of this power the legislature adopted the provisions of the Code above referred to, stating the conditions upon which public ways might be temporarily appropriated to military operations. They provide that parades shall be held four times in each year, and that while such parades are in progress, any person who wilfully disturbs or interrupts the military procession shall be liable to indictment. The times at which such parades are to be held are not fixed by law, but it is expressly provided that they may be held at times which are to be appointed by the rules adopted by the military company or battalion thus parading,

or, in the absence of such rules, by its commanding officer. The rule adopted by the company fixing the time at which such parades are to be held, and, in the absence of a rule to that effect, an order by the commanding officer fixing such time, becomes the law unto the general public, and makes a parade held under such circumstances a lawful parade, the obstruction of which is prohibited by law. In the present case the evidence was silent as to whether the company had fixed the time and place of its annual parade by rule, and the authority of the commanding officer being dependent upon the nonexistence of such rule, it does not appear that the parade in question was one of those authorized to be held under the provisions of the Code to which reference is hereinabove made."

And in the reported case (OWENS v. ATKINS, ante, 267), wherein it appears that certain streets were closed about 1 hours, two days a week, to allow the playing of baseball on the school baseball ground, it is held that the town council, in granting the school board permission to inclose the streets, was acting within its power to make such temporary obstruction thereof as became necessary to the public welfare. The court says that the sport for the exercise of which the streets were closed, was essential to the physical development of the youth of the town, and afforded entertainment to the townspeople, tended to promote the public welfare, and justified the action of the town council. As a consequence the defendants were offenders in refusing to pay admission or withdraw from the inclosure.

In Wheeler v. Ft. Dodge (1906) 131 Iowa, 566, 9 L.R.A. (N.S.) 146, 108 N. W. 1057, set forth supra, under heading, "Where no public benefit appears," it was said: 'Possibly (though we need not here decide) a city may temporarily exclude general travel from a properly designated and guarded portion of a street or streets for the accommodation of a procession, parade, or display having some reasonable relation to the purposes for which streets are created." R. S.

Messrs. Poe & Lundy, George L. Manin, and Stuart, Sharp, & Cruce for plaintiff in error.

Messrs. James B. Diggs, Rush Greenslade, and William C. Liedtke, for defendant in error:

Defendant has not produced oil from the leased premises in the form of gas, and the gasolene content extracted from the casing-head gas produced is not oil, or a part of the oil.

United Natural Gas Co. v. Alum Rock Gas Co. (1917; Pa. C. P.).

The action is of an equitable nature, and in such a case the supreme court will affirm the judgment, unless it is clearly shown that the trial court failed to consider uncontroverted evidence, or that the judgment is against the clear weight of the evidence. Deskins v. Rogers, Okla. 180 Pac. 691; Crump v. Lanham, 67 Okla. 33, 168 Pac. 43; Lehr v. Grennell Farm Loan Co 65 Okla. 144, 165 Pac. 167.

The rule that oil leases are construed in favor of the lessor has no application to this case, for the reason that plaintiff is not a lessor, and the instrument which is the foundation of its right is not a lease; and the rule is a rule adopted in aid of speedy development, and, there being no question of development here, the rule is inapplicable.

Paraffine Oil Co. v. Cruce, 63 Okla. 95, 14 A.L.R. 952, 162 Pac. 716; Parish Fork Oil Co. v. Bridgewater Gas Co. 51 W. Va. 583, 59 L.R.A. 566, 42 S. E. 655, 22 Mor. Min. Rep. 145; Burgan v. South Penn Oil Co. 243 Pa. 128, 89 Atl. 823; Stahl v. Illinois Oil Co. 45 Ind. App. 211, 90 N. E. 632.

Whatever the nature of a casinghead gas and its relation to crude oil may be scientifically, the words "gas" and "oil" were used in the contract in this cause as generic terms to distinguish one from the other, and should be given the meaning given to such words in their ordinary, everyday use.

Thornton, Oil & Gas, 2d ed. § 39; Taylor v. Peerless Ref. Co. 7 Ohio Dec. 368, 14 Ohio C. C. 315; Truby v. Palmer, 3 Sadler, 156, 6 Atl. 74; Prichard v. Freeland Oil Co. 80 W. Va. 787, 93 S. E. 871; Mathes v. Shaw Oil Co. 80 Kan. 181, 101 Pac. 998; Indiana Natural Gas & Oil Co. v. Wilhelm, 44 Ind. App. 100. 86 N. E. 86; Pittsburg-Columbia Oil & Gas Co. v. Broyles, 46 Ind.

App. 3, 91 N. E. 754; Schewalter v. Hamilton Oil Co. 28 Ind. App. 312, 62 N. E. 708; Ohio Oil Co. v. Lane, 59 Ohio St. 307, 52 N. E. 791; Burton v. Forest Oil Co. 204 Pa. 349, 54 Atl. 266, 22 Mor. Min. Rep. 507.

McNeill, J., delivered the opinion of the court:

In October, 1906, the owners of certain land in Creek county executed an oil and gas lease thereon in consideration of a royalty of one eighth of the oil delivered in the pipe line, and $250 for gas wells when the gas was sold off the premises. The lease contained the further provision authorizing the lessee to sublease and release any part of the land. By mesne assignments, the lease was transferred to Mr. Hammett, who executed a sublease, containing a recital that the lease was subject to all the requirements, conditions, and stipulations contained in the original lease, and conveyed all rights, privileges, and benefits in the original lease, subject, however, to the performance of certain conditions, to wit: ment of all royalties due under the original lease according to its terms, and, in addition thereto, to pay and deliver to Hammett in pipe lines on said land 40 per cent of the total production of oil from said land as royalty.

Pay

The plaintiff, the Hammett Oil Company, by mesne assignments, is the owner of two thirds of the interest retained by Hammett by virtue of the sublease. The Gypsy Oil Company is the owner of all other interests in the lease and sublease. These assignments and transfers were executed in 1906 and 1907. Oil was found in paying quantities, and has been divided as follows: To the lessors 12 per cent, Hammett Oil Company 263 per cent, and Gypsy Oil Company 60 per cent.

In 1913 the Gypsy Oil Company entered into a contract with the lessors regarding the manufacture of gasolene from casing-head gas