
    Walter A. Davis, Appellee, v. The Kansas Gas and Cement Company, Appellant.
    
    No. 17,098.
    HEADNOTE BY THE REPORTER.
    
      Damages — Trespasser—Evidence—Judgment—Petition—Amendment — Conclusiveness of Findings. In an action for damages resulting from the frightening of cattle by placing and operating drilling machinery in their pasture, held that consent thereto was not proved, that the evidence supports the judgment, and that if the damages allowed are not within the claims of the petition an amendment will be considered as made.
    Appeal from Lyon district court.
    Opinion filed June 10, 1911.
    Affirmed.
    
      Thomas H. Grisham, and Dennis Madden, for the appellant.
    
      R. M. Hamer, and W. C. Harris, for the appellee.
   Per Curiam:

In its .answer the defendant founded its right to drill for mineral upon consent obtained from the owner of the land. The defense now made, that the right was obtained from the tenant, is an afterthought. It is supported by nothing more substantial than the fact that the tenant did not protest against the erection and operation of the machinery, and it is invalid in any event for lack of authority in the tenant to make a valid grant of the kind claimed. Deposits of oil and gas being a part of the land belong to the owner of the'reversion. • They can not be tapped and explorations for them can not be conducted without authority from him. Since the defendant was a trespasser on the premises rightfully occupied by the plaintiff’s cattle it is liable in damages for the injuries which it inflicted. The damages awarded were sufficiently proved and they are fairly within the claims made in the petition. If they were not the petition would be treated as amended to conform to the proof. The argument that the plaintiff caused his own damage by trying to protect himself from the defendant’s wrongful .acts is hot supported by the. 'findings of fact or by the -evidence. The findings are, of course, controlling. (Shuler v. Lashhorn, 67 Kan. 694.)

The judgment of the district court is affirmed.  