been induced by fraud to release her inchoate right of dower. And in certain cases of judicial sales the court determines the value of such right by accepted standards, and either sets aside a sum for the use of the wife or decrees a payment in gross in lieu thereof.

But I am unable to find any case in which waste has been enjoined, during the lifetime of the husband, upon the suit of the wife. As her right of dower in the lands of her husband depends upon her survival, she cannot interfere with her husband's occupancy and use thereof. Her right is always inchoate and subject to the changes, improvements, dilapidation or depreciation which may occur during his lifetime. Any other rule would occasion great confusion and much uncertainty as to what a man may or may not do with his own property. A husband, owning lands, may cut the timber, dig wells, mine ores and pump the oil or gas thereon in any manner he sees fit, so long as he does not thereby create a nuisance or infringe upon the rights of the general public. Whatever right and title he has he may convey to another, and even if the premises do contain mines, minerals, oil or gas which may in time be exhausted, the right of his wife therein is still inchoate, and she cannot enjoin their development and use during her husband's lifetime.

It has been held that oil in the earth belongs to the owner of the soil. (Hughes v. United Pipe Lines, 119 N. Y. 423.)

It resembles water as it exists in the earth, its original source is uncertain, and even the exact location thereof may not be known, but like salt or mineral waters, it has a market value, and the owner of the fee has a right to pump, use and sell it even if his wells are so located on his premises as to lessen the flow of his neighbor's wells dug prior to his. And in such case the courts will not enjoin their use at the suit of the neighbor. (Wagner v. Mallory, 169 N. Y. 501.)1

In the case at bar plaintiff desires to restrain defendants from using the wells of oil and gas which they have dug. She wishes to preserve the oil and gas until some future period when she may be entitled to enjoy these new rights which she has acquired by reason of the defendants' diligence in opening the wells, and thus deprive them, for the present at least, of the fruits of their industry. Ordinarily a zealous life tenant or owner is of benefit to the remainderman or one having an inchoate right of dower in the lands. So in this case the defendants' enterprise in first opening the wells gave plaintiff her claim of an inchoate right to benefit by them. But now having, as she thinks, gained such a right, she seeks to curb the activities of the defendants to the end that all such benefits may be preserved in full for her common enjoyment in case she ever has dower in the lands. The defendants are rightfully in possession of the premises, and their present operations cannot be said to constitute waste as against the plaintiff.

The complaint, therefore, does not state facts sufficient to con1 Cf. State v. Ohio Oil Co., 150 Ind. 21 (1898); 27 W. Va. L. Q. 74.

stitute a cause of action, and it is clear that the judgment appealed from should be affirmed.1

KRUSE, P. J. (dissenting): I dissent upon the ground that the plaintiff has an inchoate right of dower in the producing oil and gas wells, and that she is entitled to have that right adjusted and protected by a court of equity. The husband can no longer be regarded as representing his wife or protecting her rights therein. He has parted with his title, deserted his wife and refuses to support her.

The principal value of the lands is the oil and gas. For farming purposes the land is worth not to exceed $10,000, while the oil and gas exceeds in value $100,000.

I think it clear that if the wife should survive her husband she would be entitled to dower in the producing oil and gas wells. It was early decided that a widow is entitled to be endowed of mines opened and worked in the lifetime of her husband. While the inchoate right of dower is not an estate in lands, it is a substantial interest and highly favored in equity, and whenever the right has been threatened by destruction or impairment, the courts have protected it.

tenants in common.

Brill for partition of land-held an and injunction HAWLEY v. CLOWES. restraining cutting of times fillylevene

Court of Chancery, NEW YORK, 1816.

[2 Johnson, Chancery, 122.]

iunction grouted excep af timber

It stated that

elitti

-mansory for use of tenont in common ought not t The bill prayed for a partition of land, and for an injunction to stay. waste in cutting down and carrying away the timber. the plaintiff and defendant owned the land as tenants in common, in equal undivided moieties, and that the defendant is in the actual possession of the whole by himself, or his tenant, and is cutting down the timber, and threatening to persevere; but admitted the plaintiff's title as tenant in common.

An injunction was granted on filing the bill, which was sworn to. THE CHANCELLOR. [KENT]. The injunction must be modified, so as to confine it to timber then standing and growing on the premises, and not wanted for the necessary use of the farm, The last cited case, Smallman v. Onions, 3 Bro. C. C. 623, admitted the authority of the court to grant the writ between tenants in common, in special cases, as where the defendant was sworn to be insolvent; and Lord Eldon, in the subsequent cases of Hole v. Thomas, 7 Ves. 589, and of Twort v. Twort, 16 Ves. 128, admitted the propriety and necessity of this power in the court, between tenants in common, where the waste was destructive to the estate, and not within the

1 Contra, Brown v. Brown, 94 S. C. 492 (1913); see 28 Harv. L. Rev. 615. See also Webster v. Webster, [1916] 1 K.B. 714; Drake v. Drake, 145 Minn. 388 (1920), noted in 4 Minn. L. Rev. 538.

usual and legitimate exercise of enjoyment. The case, therefore, of the exercise of this power must rest in sound discretion; it is not a case of a want of jurisdiction. Here is a bill for partition, and pending the suit it appears to be extremely fit that the tenant in common in possession should not be permitted to strip the land of its timber. It is destructive, in many cases, of the value of the estate, and not consistent with a prudent enjoyment by the real owner. The statute of Westminster 2, 13 Ed. I., c. 22 (sess. 10, ch. 6), gives an action of waste by one tenant in common against another. It is, therefore, an injury recognized by law, and the remedy by injunction is applicable to every species of waste, it being to prevent a known and certain injury; this remedy is peculiarly proper and appropriate pending a bill for partition of the very land. It comes within the equity of the statute (of sess. 10, ch. 50, s. 29),1 which prohibits a defendant, pending a suit for the land, from making waste, and directs the court, where the suit is pending, to prevent it. The injunction, therefore, under the above modification, must be continued until answer, and further order.2 Injunction continued.

16 Ed. I, c. 13, which creates the action of estrepement, was probably intended. 2 Co-tenant may restrain legal waste, Williamson v. Jones, 43 W. Va. 562 (1897); Murray v. Haverty, 70 Ill. 318 (1873). Contra, he may restrain only equitable waste, McCord v. Oakland Quicksilver Mining Co., 64 Cal. 134 (1883); Mott v. Underwood, 148 N. Y. 463 (1896). Additional authorities are collected in Ames, 485n.; 1 Tiffany, Real Property (2d ed.) § 292; "Rights of co-tenants inter se as to timber," 2 A. L. R. 993, 1002. On bills of account between cotenants, see also 8 Va. L. Rev. 308; 22 Colum. L. Rev. 281 (account of profits from illegal use of common property). A co-owner of a copyright obtained an injunction in Cescinski v. Routledge, [1916]2 K. B. 325,noted in 30 Harv. L. Rev. 91.

SECTION II.

TRESPASS.1

The Early History of Trespass in Chancery. The first case in which Pike found a complete record of Chancery proceedings from the bill to the final decision, Hals v. Hyncley (7 Henry V.),2 restored the possesion of a manor of which the plaintiff had been disseised by the defendant. The remedy at law was inadequate, because the King on going to Normandy had ordained that no assise of novel disseisin should be pursued until he returned to England. Several earlier bills against violent trespasses to land have been reprinted by the Record Commission, e.g., 1 Cal. Ch. i, iii, vi, and by the Selden Society, Select Cases in Chancery, pl. 16, 70, 115. Some at least of these cases are due to the attempts of the mediaeval Chancellors to suppress offenders who were too strong. for the ordinary processes of the criminal law. This criminal jurisdiction became obsolescent with the rise of the Star Chamber, 31 Harv. L. Rev. 857. In 1580, the destruction of a party-wall was enjoined, Bush v. Field, Cary 128; see Wood v. Tirrell, Cary 84 (1577). As late as 1682, Lord Keeper Guilford said, "In some cases even for a trespass a bill is proper enough in this court; as where by the secret contrivance of it a man cannot easily prove it; as for instance, if a man in his own ground digs a way under ground to my mineral." East India Co. v. Sandys, 1 Vern. 130; see same v. Evans, ib. 308 (1684).

Trespass to chattels also came early into equity, usually in some connection with land. Bills asked the restoration of the title deeds of cottages and of timber detained with a house, Select Cases in Chancery, pl. 88, 89 (circa 1401). In 1461, the defendant was ordered to make an inventory of goods had of J. B., which had been forfeited to the King because of treason, and given to the plaintiff by the King, 4 Vin. Ab. 400, Chancery (X) pl. 4. In 1684, a bill was brought for a horn delivered to the plaintiff's ancestors in ancient time to hold their land by, Pusey v. Pusey, 1 Vern. 273; and Guilford said in East India Co. v. Evans, ib. 308, that a man who ran away with a casket of jewels was ordered to

answer.

1 In accordance with the common usage of equity lawyers, trespass in this section includes not only torts which would support an action of trespass by a plaintiff in possession, but also torts committed by a defendant in possession, but causing a similar damage to the property.

2 Y. B., 12 & 13 Edw. III (Rolls Series) cviii; but Barbour apparently classified this case as on the common law side of Chancery, 31 Harv. L. Rev. 841 n.

The development of the jurisdiction in the eighteenth and the early nineteenth century is shown by the following cases:1

All trespasses are not proced fovinjunct COULSON V. WHITE, 3 Atk. 21 (1743). HARDWICKE, C.: "Every

only permane common trespass is not a foundation for an injunction in this court,

batanly

where it is only contingent and temporary; but if it continues so long as to become a nuisance, in such a case the court will interfere and grant an injunction to restrain the person committing it." This seems the earliest suggestion in the eighteenth century of an injunction against a trespasser.

Personinota porty,

to:

to original wakte is ANON., Dick., 670, cited (ca. 1766-1771). The plaintiff was lord of to nostrorty restrained from a manor in Oxfordshire, upon which the defendants claimed a right to soothing word was "estovers, and under that right they cut down timber in one day to the value of 400.; the plaintiff filed his bill for an injunction to stay waste, and obtained one; upon its being served, their attorney advised the defendants to desist from cutting down any more lumber, but advised other tenants of the manor to cut down timber; upon which Lord Camden granted an injunction to stay waste against persons not parties.

Just refused to groak VLOGG

v. MOGG, Dick. 670 (1786). The plaintiff was a trustee of action certain estates. The defendant had not any right, but persuaded the 2 trespasur to stry boosterbeutenants to cut down timber. On motion for injunction to stay waste, and petion of trisport HURLOW, C., desired counsel to see if he could find an instance where comell likagainst a stranger comes upon lands as a trespasser and cuts down timber or hime. Spnabeths commits waste, in which this court had granted an injunction to stay later the some him. The case before Camden was cited. "The Lord Chancellor said it court granted on did not apply, for in that case there was a right to something in the invention for similar forts.

defendants, though perhaps they carried it beyond what such right went to; and that until such right was determined, it was very proper to stay them from doing an act which, if it turned out they had no right to do, would be irreparable; but in the present case the defendant had no interest; he was a mere trespasser, and being such, an action of trespass would lie against him; and therefore his Lordship would not grant the motion." Eight months later in the same year, upon a motion for an injunction in the similar case of Hamilton v. Worsefold, Lord Thurlow "at first had some difficulty about granting it; Worsefold being a mere trespasser; but at length his Lordship granted the injunction against both Worsefold and the tenants." 10 Ves. 291, n.(88).

MORTIMER V. COTTRELL, 2 Cox 205 (1789). The defendant had been Same coult refures to authorized by the plaintiff to dig earth in a brick-field to a certain Font ingredation quinta mere depth. He dug beyond the limit and his authority was revoked. A strongue who wing tut of bill was filed to enjoin further digging. The plaintiff's counsel urged that as this ground was intended for building, and as it would be nesissionary it rendered unfit for the foundation of a house if the ground was dug deeper from the surface than the limited depth, this was one of that species of irreparable mischief which this court would prevent by injunction. THURLOW, C.: "The defendant was a mere stranger; he had been guilty of a forcible entry, and there was no case where this court would interfere by injunction, when the party was a mere stranger, and might be turned out of possession immediately."

1 Most of these cases are reprinted in full in AMES, 486-499. Only portions are given here.