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concurrent jurisdiction, equity follows the law, and a court of equity will consider itself bound by the same rules that would apply in a court of law. Godden v. Kimmell, 99 U. S. 201, 25 L. Ed. 431; Metropolitan Nat. Bank v. St. Louis Dispatch Co., 149 U. S. 448, 13 Sup. Ct. 944, 37 L. Ed. 799; Reugan v. Sabin, 3 C. C. A. 578, 53 Fed. 420; 11 Am. & Eng. Enc. Law, 476.

The contention that the complainant was bound by the judgment rendered in the suit against Cleveland, when she was not a party to it, cannot be sustained. The fact that her co-tenants might have recovered for her in their names does not alter the matter. Stovall v. Carmichael, 52 Tex. 383; Walker v. Read, 59 Tex. 187; Bass v. Sevier, 58 Tex. 567; Jeffus v. Allen, 56 Tex. 195; 1 Black, Judgm. 554. Nor can it be said that she was a party by representation. Williamson v. Jones (W. Va.) 19 S. E. 444, 25 L. R. A. 222; 15 Enc. Pl. & Prac. 627.

Coming to the next point, the proof offered on the hearing fails. of showing that the complainant received from the estate of Andrew A. Veatch in California any more than she was entitled to as her part thereof, so that it becomes unnecessary to say what would have been the effect if she had appropriated more than her share. But it is urged that she estopped herself from asserting her life estatewhen she accepted as a gift, and used a part of the money realized by her children from the sale of their interests. There is no element of estoppel in it. They had not attempted to sell her interest, or the land itself; but if they had, and she had used the money, she would not have been estopped, because she was a married woman. Johnson v. Bryan, 62 Tex. 623; Owens v. Land Co. (Tex. Civ. App.) 32 S. W. 189, 1057.

A difficult question arises in regard to the rights of a life tenant,. as respects petroleum oil obtained from the land. There seems to be no decision in Texas on the point, and but very few by the federal courts; in fact, none directly in point. The statute under which the complainant acquired her life estate appears under the head, "Descent and Distribution," and reads as follows:

"When any person having title to any estate of inheritance, real, personal or mixed, shall die intestate as to such estate, and shall leave a surviving husband or wife, the estate of such intestate shall descend and pass as follows: (1) If the deceased have a child or children or their descendants, the surviving husband or wife shall take one-third of the personal estate, and the balance of such personal estate shall go to the child or children of the deceased and the'r descendants. The surviving husband or wife shall also be entitled to an estate for life in one-third of the land of the intestate, with remainder to the child or children of the intestate and their descendants." Rev. St. Tex. art. 1689.

It is noticeable that all property is classified, and its mode of descent regulated under two heads: First, "personal property," and, second, "land." The latter term is therefore employed in its most comprehensive sense, and is nomen generalissimum. A life estate. is given the survivor in one-third of the land of a deceased husband or wife, in this sense necessarily, because all property of inheritance that is not land is classified as personal property, and if the mineral rights that belonged to Andrew A. Veatch by virtue of his fee simple

ownership of one-sixth of this land did not pass, one-third to his widow for life, as land, it passed as personal property, one-third to her absolutely. The life estate is given, not in the surface of the land, but in the land as land, and it is elementary that the land itself in legal contemplation extends from the sky to the depths. Coke says: "The term 'land' includes, not only the ground or soil, but everything which is attached to the earth, whether by the course of nature, as trees, herbage, and water, or by the hand of man, as houses and other buildings; and it has an indefinite extent upwards as well as downwards, so as to include everything terrestrial under or over it." Co. Litt. 4a.

Blackstone says:

"Land comprehends all things of a permanent and substantial nature, being a word of very extensive signification; also, if a man grants all his lands, he grants all his mines of metals and his fossils, his woods, his waters, and his houses, as well as his fields and meadows." 2 Bl. Comm. 16-18.

Washburn says:

"Land is always regarded as real property, and ordinarily whatever is erected or growing upon it, as well as whatever is contained within it or beneath its surface, such as minerals and the like, upon the principle that 'cujus est solum, ejus est usque ad cælam' in one direction, and 'usque ad orcum' in the other." 1 Washb. Real Prop. 3.

The American and English Encyclopedia of Law (old edition) defines it as follows:

"Land is the surface of the earth, whatever is attached to it by nature or by the hand of man, and all that is contained within or below it." Vol. 19, p. 1032.

In Koen v. Bartlett, 23 S. E. 665, 31 L. R. A. 130, 56 Am. St. Rep. 887, the court discussed this question of whether a life estate in land is a mere interest in the surface, and said:

"It must be conceded that the life tenant is vested with the ownership thereof as land, as being seised of the immediate freehold of possession, which possession extends from top to bottom, to the subsurface as much as the surface, in other words, to the land as a whole, or the tenant for life has a freehold, as well as a tenant in fee, and that the owners of the inheritance have no more right to approach by a tunnel, and break and enter his superficial close, than they have to break and enter his close on the surface."

Lenfers v. Henke (Ill.) 24 Am. Rep. 263, is to the same effect, and in that case the court said:

"Land comprehends all things of a substantial nature, which includes all ground, soil, or earth whatever, and hath in its legal signification an indefinite extent upwards as well as downwards. Minerals are a part of the land itself, and, if not susceptible of division, the wife is entitled to be endowed of the profits and rents."

According to all the cases and text-books a life estate in land invariably extends to all minerals beneath the surface; but, the right being merely to use and enjoy, and not to dispose of, the land, the difficulty arises in determining what is proper use and enjoyment, and when a life tenant may and when he may not sever and dispose of minerals without being guilty of waste. It is obvious that life tenant, if allowed to mine, might get a much larger proportion of the benefit of the estate than he would ordinarily receive. On the other

hand, if not allowed to mine, he might get much less. The courts have undertaken to draw the line, and it may be stated as a general rule, at common law, that, while a life tenant may continue to work mines that were open when the tenancy commenced, and this even to exhaustion, and may construct new approaches, he cannot open new mines, for to do so would be to commit waste. The rule allowing life tenants to mine, when the operations are commenced before the tenancy is created, is based on the theory that in such cases mining is a mere mode of use and enjoyment, and to extract minerals is but to take the accruing profits of the land. Raynolds v. Hanna (C. C.) 55 Fed. 801; Koen v. Bartlett, 23 S. E. 664, 31 L. R. A. 130, 56 Am. St. Rep. 884; Seager v. McCabe, 52 N. W. 299, 16 L. R. A. 247; Wentz's Appeal, 106 Pa. 301. The matter resolves itself, then, into a question of when and under what circumstances mining may be adopted as a mode of using the land. The authorities all agree that there is no restriction when the land has once been used for mining purposes before the life tenant comes in; and they now go a step further, and hold that mining will be allowed if the owner of the preceding estate has fixed on it the character of mining land by lease or the like, though no mines were opened. Priddy v. Griffith (Ill.) 37 N. E. 999, 41 Am. St. Rep. 397; Koen v. Bartlett, supra; Seager v. McCabe, supra.

In the case at bar, the remainder-men, being also the owners of seventeen-eighteenths absolutely, have taken possession of the entire property to the exclusion of the life tenant, and have converted it into an oil field. The latter has committed no waste, and the point to be decided is, not whether she might drill for oil herself, but whether she may elect to acquiesce in the changing in the mode of use. The estates were joint when the change was made, and no partition was demanded. Consequently, any advantage that ensues must inure to the benefit of all the co-tenants in proportion to their interests. Lenfers v. Henke, 73 Ill. 405, 24 Am. Rep. 263, is an applicable authority, in principle at least. The case involved two questions: (1) Whether a widow is entitled to dower in mines not open when her right of dower attached, but opened by the reversioner before assignment; and (2) whether a certain verbal agreement was valid as an assignment of dower. Both were decided in the affirmAfter announcing that the first question presented was one of first impression, the court proceeds with a review of the authorities. Speaking of the rule that a life tenant or dowress may not open new mines, the court observes:

"In many of the later cases, as well as the earlier cases, no reason whatever is assigned for the adoption of the rule; but, where any is assigned, it is, the dowress cannot open new mines when discovered, because she would be committing waste, which she is not permitted to do. On principle, why may she not be endowed of mines opened by the heir or owner of the fee, after the dower attaches and before there has been any assignment? By all the decisions, it is not waste for her to work mines opened, although the same had been abandoned before the death of the husband. She may construct new approaches, and not be guilty of waste. The reason for the rule adopted that bars dower in all mines not opened during the lifetime of the husband failing, the rule ought not to be extended to cases not strictly within its meaning."

51 C.C.A.-18

And finally:

"The heir, by opening the mines, has destroyed all other profits of the land. There is no mode of enjoying mines, excepting by working them. If this cannot be done, they are profitless to the dowress. As we have seen, it is not waste in her to work mines opened by her husband, and, by a parity of reasoning, we reach the conclusion it is not waste for her to work mines opened by the heirs before assignment of dower."

Priddy v. Griffith (Ill.) 37 N. E. 999, 41 Am. St. Rep. 397 was decided by the same court, and language to the same effect used.

There is a slight difference between the facts of Lenfers v. Henke and the case at bar. In that case the widow's interest was consummate dower, while here it is a vested life estate in an undivided interest. But it is not perceived how this could affect the principle involved. The reasoning of that case is applicable here, and seems unanswerable, and it is certainly in keeping with the tendency of modern decisions. Still, it recognizes the rule that a life tenant may not open new mines, and it is not in conflict with any of the cases cited by counsel for defendants, unless it be Coates v. Cheever, I Cow. 460. It seems to have been there held by one of the courts of New York in 1823 that the widow was not dowable of mines opened by the heir after the husband's death. The land there had been devoted to mining purposes, however, by the husband, in his lifetime, and the decision for that reason was clearly wrong. Billings v. Taylor (Mass.) 20 Am. Dec. 533; Gaines v. Mining Co., 33 N. J. Eq. 603; Priddy v. Griffith, supra; Koen v. Bartlett, supra.

There is another well-established principle that supports the holding of Lenfers v. Henke, and it is this: As against the heir and his vendees, the widow is entitled to dower in her deceased husband's land according to value and condition at the time dower is assigned. A full discussion of this occurs in Allen v. McCoy, 8 Ham. 418. See, also, I Washburn, 238-240; 2 Scribner, 595; 5 Am. & Eng. Enc. Law (old) 929. The same rule applies in partition between cotenants, except that actual improvements are allowed to the one making them, but enhancements from independent causes, such as growth in the population of a town or discovery of mineral deposits, may be shared by all.

Thus far the question has been treated without distinction between conventional life estates and common-law dower on the one hand, and life estates inherited by the law of heirship and succession on the other. In Seager v. McCabe, supra, the supreme court of Michigan, construing a dower statute of that state, reviewed the decisions at considerable length, made the distinction, and announced the following conclusion:

"The rules applicable to a country where landed estates are large and diversified, where the laws of inheritance are exclusive, where the theory of dower is subsistence merely, and where there is a strong disposition to free estates from even that charge, do not obtain in a commonwealth like ours, where estates are small, and the policy of our laws is to distribute them with each generation, where dower is one of the positive institutions of the state, founded in policy, and the provision of the widow is a part of the law of distribution, and the aim of the statute is, not subsistence only, but provision commensurate with the estate. In the present case the grant is by

operation of the statute, giving the use of all the lands of which the husband was seised. The grant must be held to include the use of these lands, irrespective of whether mines are opened upon them before or after the husband's death."

The statute there construed was not as broad as the one of Texas, and was directed at the subject of dower. The Texas statute makes no mention of dower, but defines that which under the civil law would have been a usufruct,—an estate not impeachable for waste. This is specially significant, when it is remembered that the Texas system of land titles and laws of marital rights is devised largely from the civil law. Carroll v. Carroll, 20 Tex. 743. Under the civil law the usufructuary had a right to seek for and open every kind of mines, stone and lime quarries, chalk pits, and gravel banks. I Dom. Civ. Law, 843; 2 Dom. Civ. Law, 945-968; Neel v. Neel, 19 Pa. 323.

Another noticeable feature of the statute is that it gives the surviving husband the same estate in the land of the wife upon her death that it gives her in his land at his demise. This is a complete answer to the argument that the rule shall depend upon whether mines are open or not at the time of the husband's death, because he, by reason of his position as the head of the family, is deemed to fix for the use of his property commensurate with the necessities of his family. I think the complainant' is entitled to one-eighteenth of the oil produced, after deducting all expenses of producing and marketing. If she is not entitled to the net one-eighteenth absolutely, then she is entitled to have such net yield impounded and put at interest, the interest to be paid to her during her life, while the corpus of the fund is preserved for the remainder-men. Blakley v. Marshall (Pa.) 34 Atl. 564; Wilson v. Hughes (W. Va.) 28 S. E. 781, 39 L. R. A. 292; Bryan, Petroleum, 41; Macswinney, Mines, 65. In neither event, however, should a court of equity take from the defendants the control and management of the common property. But a special receiver, more in the nature of an auditor, will be appointed for the purpose of taking and keeping accurate accounts of all oil marketed by the defendants, together with prices obtained and expenses incurred, and to collect, receive, and hold, subject to the orders of the court, one-eighteenth of the net amount of all oil so marketed. Ulman v. Clark (C. C.) 75 Fed. 868, Williamson v. Jones, 19 S. E. 436, 25 L. R. A. 222.

From the evidence introduced it seems at least probable that the lines of the Veatch and Humphreys surveys coincide, and that the Ingalls and Douthett surveys are invalid. This, however, would still leave the location of the line in dispute. The line fixed by the judgment in the case of Pasture Co. v. Cleveland (Tex. Civ. App.) 26 S. W. 93, appears to have been acted upon as an agreed line for some years, and for the purposes of the present order it will be considered as the true line.

F. C. Proctor, Geo. C. Greer, Foster Rose, Gustave Lemle, D. Edw. Greer, A. T. Watts, and Wm. P. Ellison, for appellants. Amos L. Beaty and R. R. Hazlewood, for appellee.

Before PARDEE, MCCORMICK, and SHELBY, Circuit Judges.

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