Dunham and Shortt v. Kirkpatrick
| Decision Date | 02 October 1882 |
| Citation | 101 Pa. 36 |
| Parties | Dunham and Shortt <I>versus</I> Kirkpatrick. |
| Court | Pennsylvania Supreme Court |
Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ.
ERROR to the Court of Common Pleas of Warren county: Of January Term 1882, No. 462.
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COPYRIGHT MATERIAL OMITTED
Wm. M. Lindsey and R. Brown (with them Johnson and Parmlee), for the plaintiff in error.—There can be no doubt of the fact that petroleum oil is a mineral. It is classified as a mineral by mineralogists and geologists (see Hooker's Mineralogy and Geology, Dana's Geology, and other standard works), and is said to be a mineral by this court in the case of Funk v. Haldeman, 3 P. F. Smith, page 229, Appeal of Stoughton et al., 7th Norris, page 198, and other cases. There is nothing in the language of the contract and deed to indicate that the parties used the term in a restricted sense; on the contrary, the word used with the term is one of enlargement — "all minerals" making it as comprehensive as it can be made. The reason given by the learned judge for finding that the parties used the term in a restricted sense is that the term "mineral," in its most comprehensive sense, would include "all the substances which form any part of the solid body of the land," &c. But that is not the form in which it is used. The parties to this contract and deed use the words "all minerals" in the plural, which includes the different species or classes of minerals — those minerals which are the subject of mining operations. If they had used the term "mineral," or "all mineral" there might possibly be some reason for saying they meant all mineral matter, including everything not organic. But when they use the words "all minerals" in the plural, they thus speak of the subject of the reservation in classes, and presumably mean all minerals which are classified as such and are the subject of mining operations. Petroleum is classed as a mineral, and is the subject of mining operations. In the reports of the Geological Survey of the state of Pennsylvania, the mineral products of the state are classified as follows: "Petroleum, coal, natural gas, building stone, flagstone, building brick clay, fire clay, limestone, iron ore, mineral paint, and mineral water:" Book R, page 79. Petroleum is thus placed at the head of the mineral products of the state. On what principle of construction can it be said that the parties used these words "all minerals" in a restricted sense, that would not include one of the most prominent mineral products of the state? If we say the parties used the term in a restricted sense, where shall the line be drawn? To what shall we restrict the exception or reservation? Shall it be to metallic ores? That would be restricting the words "all minerals" to a very narrow limit, and would exclude all the most valuable mineral products of the state except one, to wit, iron ore. It is safe to presume that the parties had in view the minerals common to the locality where they live, and the one most prominent and valuable, which is petroleum. No other mineral of any importance is found in Warren county. Counsel for plaintiff, in the court below, conceded in his argument that the term minerals as used by the people in general would include coal. If it includes coal, then why not petroleum, which is of like origin, and much more extensive in that part of the state? In nearly all the leases throughout the oil region we find the grant of the right to "mine and excavate for petroleum or rock oil," and we find it referred to as "petroleum, carbon or rock oil and other minerals." We talk about "boring and mining for oil," and refer to oil leases as "mining leases." And this court has declared oil to be a mineral: Appeal of Stoughton et al., 7 Norris 198.
The legislature also has treated petroleum oil as a mineral: Act of May 1st 1861, P. L. 438.
If the definition of the word by the standard dictionaries is any indication of the sense in which it is used by the mass of mankind, then the term as used by the people in general includes petroleum, and if we are to take the definition of the legal authors it certainly includes petroleum: Webster; Worcester; Walker; Bouvier Law Dict.; Bainbridge on Mines and Minerals. We think the learned judge erred in coming to the conclusion that "the common or popular sense, that sense in which the mass of mankind use the word," does not include petroleum.
Noyes (Wetmore with him), for the defendant in error.—No definition of the term "minerals" that would include petroleum oil would exclude natural gas, mineral water, brick clay, mineral paint, mineral pitch, &c. Yet in the popular sense none of these are included among "minerals," but only those mineral substances which are solid, permanent, and can be dug or mined for. Petroleum oil, though in one sense a part of the land, in another sense is not, for it is not fixed or located; it flows under the land from and to adjoining lands, and a well on one man's...
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