center of the river. "It is never thought," said the court, "that monuments mentioned in such a deed as occupying the bank of the river are meant by the parties to stand on the precise water line at its high or low mark. They are used rather to fix the termini of the line, which is described as following the sinuosities of the stream, leaving the law to say, as the line happens to be above or below tide water, whether the one half of the river shall be included, with the islands which lie on the side of the channel nearest to the line described. Where the grant is so framed as to touch the water of the river, and the parties do not expressly except the river, if it be above tide, one half of the bed of the stream is included by construction of law. If the parties mean to exclude it, they should do so by express exception. Without adhering rigidly to such construction, water gores would be multiplied by thousands along our inland streams, small and great, the intention of parties would be continually violated, and litigation become interminable."

The concluding observation of the court in this citation. would be applicable to innumerable cases in this State were any other construction adopted than the one approved.

The surveyors who were produced by the plaintiff had had great experience in the survey for the government of lands confirmed to claimants under Mexican grants, and they stated that the measurement in such cases, where a stream not navigable was the boundary, was always made by lines run from station to station, or monument to monument, selected or fixed on the bank, and that an approximation to the entire quantity embraced by a line running in the center of the stream was thus obtained: Cockrell v. McQuinn, 4 B. Monroe, 61; Bruce v. Taylor, 2 Marsh, 61; Cold Spring Iron Works v. Inhabitants of Tolland, 9 Cush. 492.

We are clearly of opinion that the Capitancillos creek is the true boundary between the land of the respective parties, each owning to the center of the stream. We therefore find for the plaintiff, and judgment must go in its favor accordingly.

1. Agreement so construed as to give exclusive right to occupy land for the excavation of coprolites: Roads v. Trumpington, L. R. 6 Q. B. 56.

2. Occupation under an agreement for a lease amounts to more than the possession of mere licensee: Jones v. Reynolds, 4 Ad. & El. 805. The same as to oil lessee: Kitchen v. Smith, 101 Pa. St. 452.

3. But prospecting does not amount to occupation: Jones v. Reynolds, 7 Car. & P. 335.

See POSSESSION.

HAIL ET AL. V. REED ET AL.

(15 Ben. Monroe, 479. Court of Appeals of Kentucky, 1854.)

Recovery of oil taken by trespasser. The severance of oil from the freehold does not divest the title of the owner nor deprive him of his right of immediate possession, nor prevent his recovery of the oil so taken by action of replevin, or of its value from the one who took it from the well.

2 Property in oil as a fiuid. Oil discovered in a well sunk by the owner of the land is his exclusive property, whether drawn from an underground current of oil or found standing; and the case is not analogous to the surface owner's right in running streams of water.

Oil extracted by a wrongdoer out of the owner's well remains the property of the owner.

The facts of the case are stated in the opinion of the court.

J. S. GOLDER, for appellants.

J. F. BELL and THOMAS E. BRAMLETTE, for appellee.

Chief Justice MARSHALL delivered the opinion of the court.

This action was brought by Hail and two others to recover from Reed and Alexander three barrels of American oil, each containing forty gallóns, worth $1.25 per gallon, of which the petition states that the plaintiffs are the owners, and entitled to the possession, and that they are in the possession of the defendants without right, and illegally detained by them. By a proper affidavit filed with the petition, the plaintiffs obtained a writ or order for the delivery of the property, under which the three barrels of oil were delivered to them on their executing the required bond to return them, etc., according to the result of the action.

The defendants in answer state: 1, That the oil was, by their labor and at their expense, taken from a well which was part of a freehold, and which oil was attached to the freehold and constituted part of it till drawn and severed therefrom by the defendants, who placed it in their own barrels, being the

'See Green v. Ashland Co., 13 M. R. Co., 12 Cush. 114, Post TROVER; Golden Rep. 32.

2 Dark v. Johnston, 9 M. R. 283.

-; Briggs Co. v. North Adams

v. Glock, 57 Wis. 118; 46 Am.

same oil claimed by the plaintiffs; and, 2, they say they had possession of three barrels of American oil, which, by their labor and at their expense, had been drawn from a well, bored down to a running stream of oil, which the plaintiff had never reduced to possession, but was a vague and fugitive stream, not confined or in the possession of the plaintiffs, and the defendants took, at their own expense, from the stream, the oil in the petition mentioned, and barreled it in their own barrels, and had it in their own possession without wrong, and as of their own property, etc. The first of these defenses seems to be founded upon the idea that as the oil was once a part of the freehold, though it became personalty by being severed, an action could not be brought for it in that condition, even by the owner of the freehold. The reason for such conclusion is not stated. But it may be presumed to have been either because the oil was supposed not to continue to be the property of the freeholder after severance by a stranger, or because the stranger by severing it and placing it in his own barrels, became the owner. In this defense the peculiar nature of the oil, and the question whether there is or can be any peculiar and individual property in it until severed, and confined or appropriated, are not brought into view. The defense rests upon the fact that the oil was a part of the freehold, and was taken therefrom by the labor and cost of the defendants, and placed in their own barrels. The simple question upon this ground of defense seems to be, whether the owner of the freehold may recover specifically that which was once a part of his freehold, but which has been wrongfully severed, or whether the substance thus severed becomes the property of the wrongdoer, because he has been at the trouble and expense of severing it and carrying it away in his own vessels or vehicles. In such case the labor and expense are not bestowed upon the thing itself, but in acquiring the possession of it and in committing the wrong. And there can be no pretense that on this ground the right or property in the thing is changed. It is stated by Chitty (1 Pl. 147) that the action of trover is confined to the conversion of personal chattels, and does not lie for fixtures eo nomine, or for injuries to land. But if after severance from the freehold, as in case of trees or fixtures, or earth, the property severed be taken away,

or if coals, dug in a pit, be afterward taken away, trover may be supported. And in p. 148 it is laid down that to support this action the plaintiff must have a complete property, general or special, in the chattel, and also the actual possession, or the right of immediate possession of it; which right of immediate possession is presumed to be with the general owner, and as matter of law is drawn to the ownership, unless the owner has otherwise disposed of it, and which therefore exists in ful force against the wrongful taker, until barred by time or contract. This is too well settled to require a citation of authority. The principles which have been stated show that although the severance of a part of the freehold changes that part from realty to personalty, it does not divest the freeholder of his right of property and ownership, nor of the consequent right of immediate possession. And this ownership and right of immediate possession, which will sustain an action of trover, will also sustain an action of detinue. (1 Chitty's Pl. 122.) Or if the taking be wrongful, an action of replevin. (Ib. 163.) And they will therefore sustain the present action, whether it be regarded as in the nature of detinue or of replevin. The second ground of defense relies upon the fact that the oil was taken from a well bored down to a running stream of oil, which was vague and fugitive, and had not been confined nor ever reduced to possession, nor even in possession of plaintiffs. And in support of this ground we are presented with a very ingenious argument, founded on the principles laid down by elementary authors with respect to water, which Blackstone. (Vol. 2 of Com. side p. 14) says must unavoidably remain in common, susceptible only of a usufructuary property, belonging to the first occupant during the time he holds possession of them, and no longer. Whence it is argued that this oil, being a liquid like water, and flowing, as alleged, in a stream at the bottom of this well, was common to all, susceptible only of a usufructuary property, and that the particular portion of it now in contest belonged to the defendants as the first occupants and appropriators of it.

But it is to be observed that the portion of Blackstone to which reference is made is a treatise upon property in general; that is upon the principles on which the right of property in external things depends, and which he states