that the consignment was subject to the conditions of the railroad company's bill of lading. There was no bill of lading, except that given by the plaintiff in error; and all the freight charges, including the extra charge for the use of the refrigerator cars, were paid to the plaintiff in error. It was necessary that these cars should be properly refrigerated, and kept in that condition until the fruit reached its destination, and it clearly appears that the damage sustained by the defendant in error resulted from a failure to perform that duty.

dence, which is hereby made a part of bill of exceptions, is all that was introduced upon the trial of this cause. And the court further certifies that after the jury had retired they returned into court, and the foreman asked the court whether the jury could find against one of the defendants, and not against the other. Before the judge had responded to said inquiry, one of the counsel who was engaged in the trial-all the counsel for all parties being then present-stated that, by agreement of counsel, they could find either against both or one of the defendants, or against the plaintiff; and thereupon In the case of Pennsylvania Co. v. Roy, the judge stated to the jury that, by consent 102 U. S. 451, 26 L. ed. 141, a passenger ocof counsel for all parties, they could find cupying a Pullman car was injured by a against both or either defendant, or against berth falling and striking him on the head. the plaintiff." He instituted suit against the railroad comAfter the jury were informed of this agree-pany, and recovered judgment for $10,000 ment of counsel, they brought in a verdict for the injuries sustained. The defense rein the following words: "We, the jury, find lied on was that the sleeping car in which for the plaintiff against the New York, Phil- | the accident occurred was owned by adelphia, & Norfolk Railroad Company, and the Pullman Palace-Car Company, a corassess his damages against said defendant poration of the state of Illinois; that holdat $816.64. And we find for the defendant ers of railroad tickets were entitled to ride the California Fruit Transportation Com- in said sleeping cars, provided they also held pany." The court refused to set this ver- sleeping-car tickets; that the Pullman Paldict aside, and gave judgment in accordance ace-Car Company, and it only, issued tickets therewith. for sale, entitling passengers to ride in its sleeping cars, and that such tickets were sold at offices established by the Pullman Car Company; that the Pullman Car Company employed persons to take charge of its cars, and the latter, while in use, were in the immediate charge of a conductor and a porter employed by that company; and that such conductor and porter were the only persons who had authority to manage and control the interior of said cars, and the berths and seats and appurtenances thereto. The lower court instructed, as part of the law of the case, that if the car in which the accident occurred composed a part of the train in which the plaintiff and other passengers were to be transported upon their journey, and the plaintiff was injured while in that car, without any fault of his own, and by reason either of the defective construction of the car, or by some negligence on the part of those having charge of the car, then the defendant was liable. This view of the law was upheld by the Supreme Court Justice Harlan saying in part:

While insisting that neither is liable, the plaintiff in error relies chiefly upon the contention that, as between itself and the California Fruit Transportation Company, the latter is liable. The judgment in favor of the California Fruit Transportation Company has been allowed to pass unchallenged. No writ of error has been asked for or obtained to the judgment in its favor. The plaintiff in error having agreed that the jury might find against either defendant, and the California Fruit Transportation Company not being a party before this court, we are not at liberty to enter upon a consideration of the controversy as to which of the two defendants is primarily liable..

The only question preesnted by the record before us it is as to the liability of the plaintiff in error to the defendant in error; in other words, Would the plaintiff in the court below have been entitled to the judgment complained of, if the plaintiff in error had been sued alone?

The California Fruit Transportation Company is an Illinois corporation that furnishes what are known as "refrigerator cars." These cars are constructed with ice tanks holding several tons of ice, and are specially used in the transportation of fruits, vegetables, and other perishable articles. The plaintiff in error, doubtless in order that it might compete with other railroads similarly equipped, employed these refrigerator cars for the use of shippers of perishable freight over its line. The strawberries in question were delivered to and put in two of these refrigerator cars, which were then transferred to the road of the plaintiff in error, where they formed a part of its train. As the strawberries were delivered to the refrigerator cars, the receipt of that company would be given for the number of crates delivered; each receipt showing on its face

"As between the parties now before us, it is not material that the sleeping car in question was owned by the Pullman Palace-Car Company, or that such company provided at its own expense a conductor and porter for such car, to whom was committed the immediate control of its interior arrangements. The duty of the railroad company was to convey the passenger over its line. In performing that duty, it could not, consistently with the law and the obligations arising out of the nature of its business, use cars or vehicles whose inadequacy or insufficiency for safe conveyance was discoverable upon the most careful and thorough examination. If it chose to make no such examination, or to cause it to be made; if it elected to reservo or exercise no such control or right of inspec tion, from time to time, of the sleeping cars

the duty he owes as such is a public duty, calling for the exercise of a high degree of care, which should not be lightly or negligently performed.

The California Fruit Transportation Company, for a consideration, furnished its cars to the plaintiff in error. These cars were agencies or means employed by the plaintiff in error for carrying on its business and performing its duty to the public as a common carrier, one of which was to provide suitable cars for the safe and expeditious carriage and preservation of the freight it

which it used in conveying passengers, as it should exercise over its own cars,-it was chargeable with negligence or failure of duty. The law will conclusively presume that the conductor and porter assigned by the Pullman Palace-Car Company to the control of the interior arrangements of the sleeping car in which Roy was riding when injured exercised such control with the assent of the railroad company. For the purposes of the contract under which the railroad company undertook to carry Roy over its line, and in view of its obligation to use only cars that were adequate for safe conveyance, the sleep-undertook to carry. A railway company ing-car company, its conductor and porter, were, in law, the servants and employees of the railroad company. Their negligence, or the negligence of either of them, as to any matters involving the safety or security of passengers while being conveyed, was the negligence of the railroad company. The law will not permit a railroad company, engaged in the business of carrying persons for hire, through any device or arrangement with a sleeping car company whose cars are used by the railroad company, and constitute a part of its train, to evade the duty of providing proper means for the safe convey. ance of those whom it has agreed to convey." Recognizing the higher duty due by common carriers to passengers, we are of opinion that the principles announced by the Supreme Court in this case are applicable to the case at bar. The employment of a common carrier, whether it be to carry passengers or freight, is a public employment; and

cannot escape responsibility for its failure to provide cars reasonably fit for the conveyance of the particular class of goods it undertakes to carry by alleging that the cars used for the purposes of its own transit were the property of another. The undertaking of the plaintiff in error was to properly care for and safely carry the fruit of the defendant in error, and it is immaterial that the cars in which they were carried were owned by the California Fruit Transportation Company, or that such company undertook to ice said cars or to pay for the ice. As between the plaintiff in error and defendant in error, the California Fruit Transportation Company and its employees were the agents of the plaintiff in error. So far as the defendant in error was concerned. the plaintiff in error was under the same obligations to care for the fruit that it would have been had the refrigerator cars belonged to it. For these reasons, the judgment is affirmed.

W. V. VERNON et al.

(........W. Va.........)

*Partition of oil and gas owned by co-owners separate from the surface cannot be decreed, except by sale and division of the proceeds. A judicial partition thereof by assignment of the oil and gas under sections of the surface is void.

(Brannon, J., dissents.)

(December 2, 1899.)

APPEAL by plaintiff from a decree of the
Circuit Court for Wirt County in chan-
cery in a suit brought to annul a decree
partitioning certain real estate as having
been procured by fraud. Reversed.

The facts are stated in the opinions.
Mr. V. B. Archer, for appellant:
Fraud in procuring a decree of partition
will be relieved against in equity.

*Headnote by the COURT.

NOTE. For partition of mineral property under surface of land, see also Byers v. Byers (Pa.) 39 L. R. A. 537.

DeLouis v. Meck, 2 G. Greene, 55, 50 Am. Dec. 491.

an

A defendant may, without filing an swer, have an injunction dissolved where there is no equity in the bill.

Zoll v. Campbell, 3 W. Va. 226; Ludington v. Tiffany, 6 W. Va. 11.

Upon a motion to dissolve an injunction before answer of the defendant, all the alle gations of the bill must be taken as true.

Peatross v. M'Laughlin, 6 Gratt. 64; Baltimore & O. R. Co. v. Wheeling, 13 Gratt. 41: Shirley v. Long, 6 Rand. (Va.) 764.

The practice in partition by bill in equity requires notice to be given by the commissioners to all parties of the time and place

of meeting for the purpose of executing the decree, and it would be a travesty on justice to allow commissioners without notice to execute a decree of partition.

17 Am. & Eng. Enc. Law, p. 769, title Partition-Commissioners-Their powers and duties; Doubleday v. Newton, 9 How. Pr. 71; Simpson v. Simpson, 59 Mich. 71, 26 N. W. 285; Corliss v. Corliss, 8 Vt. 373: Brokaw v. McDougall, 20 Fla. 212; Row v. Row, 4 How. Pr. 133; Ware v. Hunnewell, 20 Me. 291; Freeman, Co-tenancy & Partition, 2d ed. § 525; Gooch v. Green, 102 Ill. 507; Carter v. Carter, 5 Munf. 108.

2 Beach, Modern Eq. Jur. § 880, and foot-them. notes; Fisher v. McNulty, 30 W. Va. 187, 3

from which it was procured, without the necessity of resort to an appeal. It was not only voidable, but void, because it undertook to accomplish the impossible. Equity never undertakes to divide the unseen or invisible, but only that which it can see and measure so as to produce equality. Air, gas, water, and oil are not susceptible of partition in kind, independent of land, either when hidden beneath the surface or floating above it, but only when reduced to actual possession and control. Neither are the rights and privileges to acquire possession of these fugitive substances susceptible of partition in kind, but they may be sold, and the proceeds thereof divided. The land under which the oil and gas is supposed to exist may be partitioned in such manner among the coowners of the surface as to effect a division of the gas and oil privileges, but not in the manner attempted in the present decree. Boston Franklinite Co. v. Condit, 19 N. J. Eq. 394.

None of the authorities referred to in Judge Brannon's dissenting opinion in this case support the position that the attempted partition is justifiable. On the contrary, they are directly to the reverse. Nor have I been able to find any that do, after the most diligent search. In Freeman Cotenancy & Partition, § 435, it is said: "But where the interest sought to be partitioned is not a distinct right of property in the mines, but a mere license to mine in the lands of another, it is indivisible, because a division of the right would create new rights, and would prejudice the owners of the soil, and because, so long as the minerals and ores which are the subject of the servitude are in place, unwashed and unsevered from the soil, they are incapable of allotment according to quantity and quality, relatively considered." References by the author; Hughes v. Devlin,

will lie. Oil and gas cannot, while | in the ground, like the solid minerals, be the subject of an estate distinct from that in the soil." Barringer & A. Mines & Mining, pp. 30, 31. A grant to the oil and gas passes . nothing for which ejectment will lie. It is a right, not to the oil in the ground, but to the oil the grantee may find. Dark v. Johnston, 55 Pa. 164, 93 Am. Dec. 732. So the reservation of the oil and gas is not of the oil and gas in the ground, but of the oil and gas the grantor or his assigns may find and reduce to possession, with the exclusive right to search therefor. Natural gas is incapable of being absolute property, and is the subject of qualified property only. Wood County Petroleum Co. v. West Virginia Transp. Co. 28 W. Va. 210, 57 Am. Rep. 659. "A grant or reservation of oil or gas in certain land passes an incorporeal right only. This arises, as has been above explained, from the nature of oil and gas, which is such that a corporeal interest in them in place cannot be created." Barringer & A. Mines & Mining, p. 78. "There cannot be any property in rock or mineral oil, nor can title thereto be devested or acquired, until it has been taken from the earth." Shepherd v. McCalmont Oil Co. 38 Hun, 37. Oil and gas grants and reservations are incorporeal hereditaments, which are entire and indivisible at law, though they may be made divisible by the terms of the grant. Funk v. Haldeman, 53 Pa. 229. From these authorities it is plain that a reservation or grant of oil and gas privileges is a mere incorporeal hereditament, which is indivisible, because a division of the right would create new rights, to the prejudice of the owner of the soil, and because, so long as the oil and gas remain in place, they are incapable of allotment according to quantity and quality. Smith v. Cooley, 65 Cal. 46, 2 Pac. 880. In the case of Kemble v. Kemble, 44 N. J. Eq. 454, 1123 Cal. 505; Lenfers v. Henke, 73 Ill. 405, 21 Atl. 733, it was held that "a partition of lands containing mineral deposits cannot be ordered if the location, extent, and value of such deposits cannot be ascertained." Boston Franklinite Co. v. Condit, 19 N. J. Eq. 394; Grubb v. Bayard, 2 Wall. Jr. 81, Cas. No. 5,849. If such is the case with solid minerals, how absurd it is to even talk of partitioning in kind oil or gas of whose existence, quantity, and location the court is in entire ignorance. And, if three owners of such a right can have partition in kind, they can transfer their interests to others without regard to numbers, until they would be of such multitude that an at tempted partition in kind would tirely destroy the use of the surface to the owner of the land, and yet there exist neither oil nor gas to be partitioned. Such a partition as was attempted to be made in this case was a mere nullity, as it partitioned nothing; and yet it operates as a cloud on plaintiff's rights, in fraud of which it was gas. So that, when the court by its anomprocured by the defendant Vernon. It being so plainly in excess of the powers of a court of equity, it was proper to set it aside on motion. petition, or in any other way its illegality could be presented to the court

Am. Rep. 263. In Barringer & A. Mines & Mining, p. 54, it is said that "mining rights are indivisible (that is, nonpartible in kind), but they may be assigned as a whole." The author refers to Rutland Marble Co. v. Ripley, 10 Wall. 339, 19 L. ed. 955, to sustain this position. Where land is leased with the exclusive privilege of boring for oil and gas, the lessee takes a corporeal interest in the land, and a different rule prevails from that where there is a sale of the surface, and a reservation of the oil and gas. The latter is, as heretofore shown, an incorporeal interest, and amounts to the mere grant of a right or privilege nonpartible in kind. en-Plaintiff is a joint owner of the oil and gas, but has no interest in the surface, except with his co-owners, likewise co-tenants in the surface. He has the indivisible right with them to bore wells for the extraction of oil and gas, but has no separate right to enter on the lands at any place to bore for oil or

alous partition undertook to divide the oil and gas by imaginary lines over the surface, it could not confer on plaintiff the right to enter on the divisions assigned to him, for this right he did not possess, nor was he en