
    First National Bank of Richberg, respondent, v. Charles Dow and another, appellant.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 17, 1886.)
    
    1. Deeds—On- wells—Reservation op right to mine and bore por MINERAL, OILS, ETC., IS AN INTEREST IN REAL ESTATE—ACT OP MAY 10, 1883, IN RELATION TO OILS AND OIL RIGHTS CONSTRUED.
    A reservation in a deed of conveyance of the fee of land, of all oil, gas and other minerals in and beneath the surface of the land, with the exclusive right to dig, mine, bore and operate the same for a period of years, with the right of way over said premises, ingress thereto and egress therefrom, also the right to erect derricks, tanks, engines, etc., creates an interest in land conveyed, and is not personal property within the meaning of the statute (Laws of 1883, chap. 372j, and such interest is bound by the lien of a judgment recovered against the grantor.
    Appeal from, an order of the Allegany special term, •denying motion to vacate an injunction restraining the defendant, French, from operating or producing oil upon the premises in question.
    
      William H. Henderson, for appellant, French.
    
      Charles H. Brown, for respondent.
   Haight, J.

On the 20th day of October, 1883, the plaintiff recovered a judgment against the defendant, Dow, which was duly filed and docketed in the office of the clerk of Allegany county. Execution thereon was issued and delivered to the sheriff of that county, who, on the 31st day of August, 1885, advertised and sold to the plaintiff all the right, title and interest of the defendant, Dow, in a parcel of real estate situate in that county. Prior to the rendition of the judgment, Dow was the owner of the land in fee, and on the 2d day of August, 1882, entered into a contract with one Cornelia Howard to sell and convey to her aE his right, title and interest in the land, except aá hereinafter stated, and subsequently and on the 3d day of January, 1881, in pursuance to the contract, he executed and deEvered to Thomas Jackson, her assignee, a deed of the same. The contract and deed contained the foEowing reservation: “Excepting and reserving all the oil, gas and other minerals in and beneath the surface of the said premises, with the exclusive right to dig, mine, bore and operate for the same on said premises, and with the right of way over said premises, ingress thereto and egress therefrom, as the same may be necessary or convenient for such operations for a period of twelve years from August 2, 1882, and with the right during said period to use so much of said premises as may be convenient or necessary, to erect and place thereon tanks, engines, boüers, derricks and machinery and other structures for the purpose of such operations, and at any time to remove therefrom aE such tanks, structures and machinery, and also reserving the right to take water off said premises, or to use the same as may be required for such operations during said period.” Subsequently, and on the 11th day of April, 1885, the defendant, Dow, executed and deEvered to the defendant, French, a deed of aE the right, title and interest reserved by him in such premises.

The question thus presented is, Whether or not the reservation in the deed from Dow to Jackson was an interest in real estate to which the lien of the plaintiff’s judgment would attach.

Upon the argument it was stated on the part of the appellant, that it would be, were it not for the act of May 10, 1883.

The act is as follows: “All oil wells, and all fixtures connected therewith, situate on lands leased for oil purposes and oil interests, and rights held under and by virtue of any lease or contract, or other right or license to operate for or produce petroleum oil, shall be deemed personal property for all purposes except taxation, but nothing herein contained shall affect the laws now in force relating to taxation.”

It is contended, on the part of the appellant, that the only interest that Dow reserved in the land was a license to enter and put down oil wells, and operate for, and take the oil therefrom during, the term of twelve years, and that consequently it came within the provision of the statute quoted. A careful reading of the reservation will disclose the fact that this claim is not well founded, for he not only reserves the oil, gas and other minerals, but he reserves the exclusive right to dig, mine and bore for the same, wfith the right of way over the premises, egress and ingress to and. from, with the right to use so much of the premises as may be convenient or necessary in his operation. Not only the 011, but every other mineral, iron, coal, lead, or whatever other mineral existed beneath the surface, was reserved. He was the owner in fee; he conveyed the fee, reserving therefrom this interest for a term of years, which, under the statute, is denominated a chattel real. The statute to which we have referred pertains to lands leased for oil purposes and oil interests, and to rights held under and by virtue of a lease or contract, or right or license to operate for oil. It has no reference to an estate carved out of the fee. Such an estate frequently exists.

In the case of Ryckman v. Gillis (57 N. Y. 68-13), Lott, Ch. C., says: “That in the ownership of mineral lands the surface and the sub-jacent mines may be, and often are, owned by different parties and by separate titles, the division being by a horizontal line; that there is a distinct freehold in each of them.”

In the case of Marvin v. Brewster Iron Mining Company (55 N. Y., 538, 548), Folger, J., in delivering the opinion of the court, says: “A reserve of minerals in mining rights is construed as is an actual grant thereof. It differs not whether the right to mine is by exception from a deed of the surface, or by a grant of the mine by the owner of the whole estate, therein reserving to himself the surface. A reservation of minerals and mining rights from a grant of the estate, followed by a grant to another of all that which was first reserved, vests in the second grantee an estate as broad as if the entire estate had first been granted to him, with a reservation of the surface.” See also appeal of Stoughton et al., 88 Pa. St., 198-201; Duke v. Hague, 107 Pa. St., 57-65; Broman v. Young, 35 Hun, 173-181.

The order appealed from should be affirmed with ten dollars costs and disbursements.

Smith, P. J., and Bradley, J., concur; Baker, J., not sitting.  