especially with respect to water-the broad principles applicable to the subject in its most general aspect, without reference to any distinction or discriminations by which they might be modified. Then, besides, the fact that water is not oil, and that while nature furnishes the former almost everywhere for the common use of man as being a universal necessity, she furnishes the latter, for the most part, only as the result of arduous labor and intricate processes, and but rarely produces it in its perfect state. It is to be remarked that water itself, though found generally running upon the surface of the earth, where it may be obtained for use by merely taking it, and where, being furnished by nature for the use of all who may conveniently use it, it is only to be appropriated by use and for use, yet it is also frequently found under the surface, and obtained or reached at great expense and labor by means of wells, by which it is intended to be appropriated. This discrimination was not made, nor was it necessary for the purposes of the author that it should be made in the general view which he was taking of property in general. The very title of the chapter and the nature of his observations would lead to the conclusion that he was speaking of water as it is furnished by nature for the ordinary use of man, and as it is commonly found running upon the surface of the earth. The very fact that after illustrating the principle of property being founded on occupancy and on labor, by reference to the well made by one of the ancient patriarchs, he takes no notice of wells when he comes to treat of water as a subject of property, shows that he thought only of water on the surface, or that he considered a well by which it might be obtained from beneath the surface as a means of appropriation.

The other authorities referred to, viz., 3 Kent's Com. 438, and 2 Bouv. Instit. 174, treat especially of water on the surface; the first considering the subject under the title of running waters, and showing that he is considering water running over land, and the other treating the subject under the title of watercourses, and both stating chiefly the rights of riparian owners. The latter, however, (2 Bouv. 173,) treats specially though briefly of springs, as to which he says, the owner of land is entitled to all advantages arising from it, and may use a spring found upon it as he does any other property, without

regard to the convenience or advantage of others, and that this right is very different from the right of the owner of an estate through which water flows. What becomes, then, of the common right of all to the use of water in the spring if it may be thus exclusively claimed and used and owned by the owners of the soil? And if the water in a spring found on his land is thus his exclusive property, there seems to be much more reason to say that the water at the bottom of a well which he has by his labor and expense constructed for the very purpose of retaining water in it for his use, and of facili tating the access to it, is his exclusive property. And still stronger is the reason for considering him as the exclusive owner of oil, a peculiar liquid not necessary nor indeed suitable for the common use of man, and for reaching and obtaining which, for its proper uses and for profit, he has constructed a well with suitable fixtures. It is indeed said in the answer, though it is scarcely to be seen in the evidence, that this well is bored down to a stream of oil. But while there are but slight traces even of a seeping of oil through the well, it is neither alleged nor proved that the well presents no obstructions to the stream or flow of oil, or that it does not hold or retain at least a portion of it, for facility in drawing it out. We know that in wells for drawing water it is usual, and where the supply is small, necessary, to sink the well below the point where the water enters it, so that it may be retained there in sufficient quantities for use, and for drawing it up. There is nothing to show that this was not the case in the present instance, and the jury might have so found. But we are of opinion that whether the water or oil is running through the well in a stream or not, that which is actually in the well is, while it is there and subject to be drawn out, though it be here only in passing from one side of it to the other, appropriated by the owner to his own use, and belongs to him when it is drawn out, unless this is done by his license and for another's use. If, as may be presumed, the well is sunk below the point at which the water or oil enters, or if the water or oil, in any quantity, stands in it until drawn out, the evidence of appropriation is still stronger, and the right of the owner more easily established. And in either case the water or oil, if drawn up by a wrongdoer, is the property of the person

entitled to the well, or its exclusive use, and may be specifically recovered; whether the barrel in which the wrongdoer has placed it may also be recovered with the oil, or other barrels should be furnished by the owner, we need not at present decide.

It follows, from the foregoing views, that the court erred in instructing the jury upon evidence which authorized them to find the facts as above assumed; that upon the whole evidence they should find for the defendants.

Wherefore, the judgment is reversed and the cause remanded for a new trial, on principles in conformity with this opinion.

FRENCH V. BREWER.

(3 Wallace, Jr., 346. U. S. Circuit Court, (Third Circuit,) 1861.) Construction of deeds. In the construction of deeds the technical rules of the English books must be applied-with reference to the ignorance of the American scrivener.

1Construction of oil lease drawn before oil wells were known. An instrument purporting to be a grant or license to take oil, drawn by an ignorant scrivener, and at a time when the nature or value of the mineral was not known, ought to be construed with reference to the subject-matter, and the knowledge of such subject-matter at the time; and as to its inartificial use of technical language the whole scope of the paper is to be considered.

2 Facts preventing preliminary injunction. A preliminary injunction ought not to issue to prevent the sinking of an oil well, inflicting certain injury upon the defendants while the benefit to the complainant is not clear and his title also uncertain; nor where the wells sought to be enjoined, if meanwhile sunk, would be a benefit to the complainant instead of an irreparable injury.

Bill for an injunction, the case being thus: In the beginning of the present century, a stream was discovered not far from Meadville, in Crawford county, Pennsylvania, upon the surface of which, as of the smaller rivulets running into it, a species of oil frequently flowed; and to such an extent in some places, that when a candle was applied to the surface the oil would ignite and blaze in a lambent flame on the creek

1 Thompson v. Noble, 11 M. R. 137.

2 Swift v. Jenks, 19 Fed. 641.

itself. The people in the neighborhood of the stream, which was now called "Oil Creek," were aware of this peculiarity of the water; but the population thereabout was sparse in those days, and no great deal of mineralogical science was applied to the subject. The schoolmaster called it a "phenomenon," and this was regarded by the learned as a full and lucid explanation of the matter. The Indians, it is said, had known this peculiarity of the stream, and applied the oil to surgical purposes in the cure of external injuries or sores. The early white settlers used it in the same way, and also for different domestic and farm purposes. It flowed along with the water on its surface-but the descent of the water being rapid, and the stream itself shallow, the only mode in which the people could get the oil separated from the water was by making little ditches or pits alongside of the creek, and drawing off a certain amount of the water of the stream into them. This being left in a state of stagnation the oil would soon collect in a coagulated form on the surface, when the women would go out, and inserting blankets under the water, raise them and secure the oil, the blankets being porous enough to' let the water flow through them, but sufliciently close to retain, till they could empty it, the thicker substance of the oil.

Enough oil was obtained in this way to make it worth while for the farmers and others in the neighborhood occasionally to go through this somewhat laborious process of getting it, but the oil never became in those days a subject of much value or of any commerce. Some time, however, in the spring of 1858-the date is important-a person named Edwin Drake, residing at Titusville, a town on this creek, conceived that the oil must be a mineral substance, some way connected with coal formations, and that it probably came from a great depth below the creek, and through some fissures in the rocky formation from coal strata on the adjoining lands, and therefore that it could be far better got by boring on the lands them. selves. His conjecture proved to be right, and led the way to a branch of industry which in five years has in western Pennsylvania, become an immense one, covering whole regions from Lake Erie to the Ohio, with operations in what is now called "Petroleum" or "Rock oil."

In November, 1855-that is to say, two years or more before the discovery and labors of Drake, as thus recorded, the defendants, being then owners in fee of 160 acres of land on Oil Creek, including a certain island particularly well situated for gathering oil in the old way, while the complainants owned 105 acres on the same creek, adjoining this tract of 160 acres, but lower down on the creek than the defendants', made to the complainants a deed, somewhat peculiar in its expression. It ran thus: "The said parties of the first part," (the now de fendants) "do hereby lease and by this indenture have leased to the said parties of the second part," (the now complainants,) "their heirs and assigns, for the full term of ninety-nine years, all the oil or paint on or being on any of the lands," etc., (of the defendants,) "with the privilege of" -the deed went on rather oddly to say-"of going onto and of taking away all or so much of the oil or paint at any time. and at all times, as is consistent with the pleasure or interest of the said parties of the second part, on the following described lands only, viz.:" [Here followed a description of certain lands of the defendants.] "Reserving to the said parties of the first part," (that is to say, to the now de. fendants, who had large mill works near this land,) "their heirs and assigns, the right and privilege at all times to pass over and repass with teams, wagons, sleighs, carts, sleds, or any other vehicle, to and from their mills, over said ground or lands, together with all ground or land necessary for yard and mill privileges and mechanical purposes: And the said parties of the second part, their heirs and assigns," the deed proceeded, "are not in any case to approach with their work or excavations so as to endanger or obstruct in any manner their mills, races, dams and ponds, or to impair or obstruct their lumbering and mechanical business as they do now or may hereafter exist."

It was made plain enough in behalf of the complainants, that between the date of the deed just mentioned and the time of Mr. Drake's discovery, the defendants never attempted to claim any oil on or about this tract of 105 acres-the tract on the upper part of the creek-but that in May, 1860, finding that Mr. Drake had discovered a new mode of getting at the oil, and of making a great subject of commerce out of