Chief Justice Marshall
delivered the opinion of the • Court—
This action was brought by Hail and two others, to recover from Reed and Alexander three barrels of American oil, each containing forty gallons, worth $1 25 per gallon, of which the petition states that the plaintiffs are the owners, and entitled to the possession, and that they are in possession of the defendants, without right, and illegally detained by them. By a proper affidavit filed with the petition, the plaintiffs obtained a writ or order for the delivery of the property, under which the three barrels of oil were delivered to them, on their executing the required bond, to return them, &c., according to the result of the action.
The defendants in answer state, 1st. That the oil was, by their labor and at their expense, taken from a well which was part of a freehold, and which oil was attached to the freehold and constituted part of it until drawn and severed therefrom by the defendants, who placed it in their own barrels, being the - same oil claimed by the plaintiffs; and 2. They say they [had possession of three barrels of American oil which, by their labor and at their expense had been drawn from a well, bored down to a running stream of oil, which the plaintiffs had never reduced to possession, but was a vague and fugitive stream, not confined or in possession of the plaintiffs, and the defendants took, at their own expense, from the stream, the oil in the petition mentioned, and barrelled it in their own barrels, and had it in their own possession without wrong, and as and of their own property, &c.
The first of these defenses seems to be founded upon the idea, that, as the oil was once a part of the [487]*487freehold, though it became personalty by being severed, an action could not be brought for it in that condition, even by the owner of the freehold. The reason for such conclusion is not stated. But it may be presumed to have been either because the oil was supposed not to continue to be the property of the ■ freeholder after severance by a stranger, or because the stranger, by severing it and placing it in his own barrels, became the owner. In this defense, the peculiar nature of the oil, and the question whether there is or can be any peculiar and individual property in it until severed and confined or appropriated, are not brought into view. The defense rests upon the fact that the oil was a part of the freehold, and was taken therefrom by the labor and cost of the defendants, and placed in their own barrels. The simple question upon this ground of defense seems to be, whether the owner of the freehold may recover specifically that which was once a part of his freehold, but which has been wrongfully severed, or whether the substance thus severed becomes the property of the wrong-doer, because he has been at the trouble and expense of severing it and carrying it away in his own vessels or vehicles. In such case the labor and expense are not bestowed upon the thing itself, but in acquiring the possession of it and in committing the wrong. And there can be no pretense that on this ground the right or property in the thing is changed. It is stated by Chitty in the 1st volume on Pleading, page 147, that the action of trover is confined to the conversion of personal chattels, and does not lie for fixtures eo nomine, or for injuries to land. But if, after severance from the freehold, as in case of trees, or fixtures, or earth, the property severed be taken away, or if coals, dug in a pit, be after-wards taken away, trover may be supported. And in page 148, it is laid down that to support this action the plaintiff must have a complete property, general or special, in the chattel, and also the actual possession, or the right of immediate possession of it. [488]*488Which right of immediate possession is presumed to be with the general owner, and as matter of law is drawn to the ownership, unless the owner has otherwise disposed of it, and which therefore exists in full force against the wrongful taker, until barred by time or contract. This is too well settled to require a citation of authority.
The principles which have been stated show that although the severance of a part of the freehold changes that part from realty to personalty, it does not divest the owner of the freehold of his right of property and ownership, nor of the consequent right of immediate possession. And this ownership and right of immediate possession, which will sustain an action of trover, will also sustain an action of detinue. (1 Chitty's Pl. 122.) Or if the taking be wrongful, an action of replevin. (Ib. 163.) And they will therefore sustain the present action, whether it be regarded as in the nature of detinue or of replevin.
The second ground of defense relies upon the fact that the oil was taken from a well bored down to a running stream of oil, which was vague and fugitive, and had not been confined, nor ever reduced to possession, nor ever in possession of plaintiffs. And in support of this ground we are presented with a very ingenious argument, founded on the principles laid down by elementary authors with respect to water, which Blackstone, 2 Book of Com. side page, 14, says must unavoidably remain in common, susceptible only of a usufructuary property, belonging to the first occupant during the time he holds possession of them, and no longer. Whence it is argued that this oi), being a liquid like water, and flowing, as alleged, in a stream at the bottom of this well, was common to all, susceptible only of a usufructuary property, and that the particular portion of it now in contest belonged to the defendants, as the first occupants and appropriators of it.
But it is to be observed that the portion of Blackstone to which reference is made, is a treatise upon [489]*489property in general; that is, upon the principles on which thé right of property in external things depends, and which he states especialty with respect to water, the broad principles applicable to the subject in its most general aspect, without reference to any distinctions or discriminations by which they might be modified. Then, besides the fact that water is not oil, and that while nature furnishes the former almost everywhere, for the common use of man, as being a universal necessity, she furnishes the latter, for the most part, only as the result of arduous labor and intricate processes, and but rarely produces it in its perfect state; it is to be remarked that water itself, though found generally running upon the surface of the earth, where it may be obtained for use by merely taking it, and where, being furnished by nature for the use of all who may conveniently use it, it is only to be appropriated by use and for use, yet it is also frequently found under the surface, and obtained or reached at great expense and labor, by means of Wells by which it is intended to be appropriated. This discrimination is not made, nor was it necessary for the purposes of the author that it should be made in the general view which he was taking of property in general. The very title of the chapter, and the nature of his observations, would lead to the conclusion that he was speaking of water as it is furnished by nature for the ordinary use of man, and as it is commonly found running upon the surface of the earth.
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Chief Justice Marshall
delivered the opinion of the • Court—
This action was brought by Hail and two others, to recover from Reed and Alexander three barrels of American oil, each containing forty gallons, worth $1 25 per gallon, of which the petition states that the plaintiffs are the owners, and entitled to the possession, and that they are in possession of the defendants, without right, and illegally detained by them. By a proper affidavit filed with the petition, the plaintiffs obtained a writ or order for the delivery of the property, under which the three barrels of oil were delivered to them, on their executing the required bond, to return them, &c., according to the result of the action.
The defendants in answer state, 1st. That the oil was, by their labor and at their expense, taken from a well which was part of a freehold, and which oil was attached to the freehold and constituted part of it until drawn and severed therefrom by the defendants, who placed it in their own barrels, being the - same oil claimed by the plaintiffs; and 2. They say they [had possession of three barrels of American oil which, by their labor and at their expense had been drawn from a well, bored down to a running stream of oil, which the plaintiffs had never reduced to possession, but was a vague and fugitive stream, not confined or in possession of the plaintiffs, and the defendants took, at their own expense, from the stream, the oil in the petition mentioned, and barrelled it in their own barrels, and had it in their own possession without wrong, and as and of their own property, &c.
The first of these defenses seems to be founded upon the idea, that, as the oil was once a part of the [487]*487freehold, though it became personalty by being severed, an action could not be brought for it in that condition, even by the owner of the freehold. The reason for such conclusion is not stated. But it may be presumed to have been either because the oil was supposed not to continue to be the property of the ■ freeholder after severance by a stranger, or because the stranger, by severing it and placing it in his own barrels, became the owner. In this defense, the peculiar nature of the oil, and the question whether there is or can be any peculiar and individual property in it until severed and confined or appropriated, are not brought into view. The defense rests upon the fact that the oil was a part of the freehold, and was taken therefrom by the labor and cost of the defendants, and placed in their own barrels. The simple question upon this ground of defense seems to be, whether the owner of the freehold may recover specifically that which was once a part of his freehold, but which has been wrongfully severed, or whether the substance thus severed becomes the property of the wrong-doer, because he has been at the trouble and expense of severing it and carrying it away in his own vessels or vehicles. In such case the labor and expense are not bestowed upon the thing itself, but in acquiring the possession of it and in committing the wrong. And there can be no pretense that on this ground the right or property in the thing is changed. It is stated by Chitty in the 1st volume on Pleading, page 147, that the action of trover is confined to the conversion of personal chattels, and does not lie for fixtures eo nomine, or for injuries to land. But if, after severance from the freehold, as in case of trees, or fixtures, or earth, the property severed be taken away, or if coals, dug in a pit, be after-wards taken away, trover may be supported. And in page 148, it is laid down that to support this action the plaintiff must have a complete property, general or special, in the chattel, and also the actual possession, or the right of immediate possession of it. [488]*488Which right of immediate possession is presumed to be with the general owner, and as matter of law is drawn to the ownership, unless the owner has otherwise disposed of it, and which therefore exists in full force against the wrongful taker, until barred by time or contract. This is too well settled to require a citation of authority.
The principles which have been stated show that although the severance of a part of the freehold changes that part from realty to personalty, it does not divest the owner of the freehold of his right of property and ownership, nor of the consequent right of immediate possession. And this ownership and right of immediate possession, which will sustain an action of trover, will also sustain an action of detinue. (1 Chitty's Pl. 122.) Or if the taking be wrongful, an action of replevin. (Ib. 163.) And they will therefore sustain the present action, whether it be regarded as in the nature of detinue or of replevin.
The second ground of defense relies upon the fact that the oil was taken from a well bored down to a running stream of oil, which was vague and fugitive, and had not been confined, nor ever reduced to possession, nor ever in possession of plaintiffs. And in support of this ground we are presented with a very ingenious argument, founded on the principles laid down by elementary authors with respect to water, which Blackstone, 2 Book of Com. side page, 14, says must unavoidably remain in common, susceptible only of a usufructuary property, belonging to the first occupant during the time he holds possession of them, and no longer. Whence it is argued that this oi), being a liquid like water, and flowing, as alleged, in a stream at the bottom of this well, was common to all, susceptible only of a usufructuary property, and that the particular portion of it now in contest belonged to the defendants, as the first occupants and appropriators of it.
But it is to be observed that the portion of Blackstone to which reference is made, is a treatise upon [489]*489property in general; that is, upon the principles on which thé right of property in external things depends, and which he states especialty with respect to water, the broad principles applicable to the subject in its most general aspect, without reference to any distinctions or discriminations by which they might be modified. Then, besides the fact that water is not oil, and that while nature furnishes the former almost everywhere, for the common use of man, as being a universal necessity, she furnishes the latter, for the most part, only as the result of arduous labor and intricate processes, and but rarely produces it in its perfect state; it is to be remarked that water itself, though found generally running upon the surface of the earth, where it may be obtained for use by merely taking it, and where, being furnished by nature for the use of all who may conveniently use it, it is only to be appropriated by use and for use, yet it is also frequently found under the surface, and obtained or reached at great expense and labor, by means of Wells by which it is intended to be appropriated. This discrimination is not made, nor was it necessary for the purposes of the author that it should be made in the general view which he was taking of property in general. The very title of the chapter, and the nature of his observations, would lead to the conclusion that he was speaking of water as it is furnished by nature for the ordinary use of man, and as it is commonly found running upon the surface of the earth. The very fact that, after illustrating the principle of property being founded on occupancy and on labor, by reference to the well made by one of the ancient patriarchs, he takes no notice of wells when he comes to treat of wa.er as a subject of property, shows that he thought only of water on the surface, or that he considered a well by which it might be obtained from beneath the surface as a means of appropriation.
The other authorities referred to, viz: 3 Kent's Com. 438, and 2 Bouvier's Institutes, 174, treat espe[490]*490cially of water on the surface; the first considering the subject under the title of running waters, and showing that he is considering water running over land, and the other treating the subject under the title of water courses, and both stating chiefly the rights of riparian owners. The latter, however, (2 Bouvisr, 173,) treats specially, though briefly, of springs, as to which he says, the owner of land is entitled to all advantages arising from it, and may use a spring found upon it, as he does any other property, without regard to the convenience or advantage of others. And that this right is very different from the right of the owner of an estate through which water flows. "What becomes, then, of the common right of all to the use of the water in the spring, if it may be thus exclusively claimed and used and owned by the owner of the soil. And if the water in a spring found on his land is thus his exclusive property, there seems to be much more reason to say that water at the bottom of a well which he has by his labor and expense constructed for the very purpose of retaining water in it for his use, and of facilitating the access to it, is his exclusive property. And still stronger is the reason for considering him as the exclusive owner of oil, a peculiar liquid not necessary nor indeed suitable for the common use of man, and for reaching and obtaining which for its proper uses and for profit, he has constructed a well with suitable fixtures.
If the owner of land sink a well from which oil is taken, the oil thus taken is his property, and he may recover it, by action of detinue, or its value, in an action of trover, from one who takes it from the well.
It is indeed said in the answer, though it is scarcely to be seen in the evidence, that this well is bored down to a stream of oil. But while there are but slight traces even of a seeping of oil through the well, it is neither alleged nor proved that the well presents no obstruction to the stream or flow of oil, or that it does not hold or retain at least a portion of it, for facility in drawing it out. We know that in wells for drawing water it is usual, and, where the supply is small, necessary to sink the well below the point where the water enters it, so that it may be retained there in sufficient quantities for use, and for drawing it up. [491]*491There is nothing to show that this was not the case in the present instance, and the jury might have so found. But we are of opinion that whether the water or oil is running through the well in a stream or not, that which is actually in the well is, while it is there, and subject to be drawn out, though it be there only in passing from one side of it to the other, appropriated by the owner to his own use, and belongs to him when it is drawn out, unless this is done by his license and for another’s use. If, as may be presumed, the well is sunk below the point at which the water or oil enters, or if the water or oil, in any quantity, stands in it until drawn out, the evidence of appropriation is still stronger, and the right of the owner more easily established. And in either case, the water or oil, if drawn up by a wrong-doer, is the property of the person entitled to the well, or its exclusive use, and may be specifically recovered. Whether the barrels in which the wrong-doer has placed it may also be recovered with the oil, or other barrels should be furnished by the owner, we need not at present decide. • _
It follows, from the foregoing views, that the court erred in instructing the jury upon evidence which authorized them to find the facts as above assumed, that upon the whole evidence they should find for the defendants.
Wherefore, the judgment is reversed, and the cause remanded for a new trial, on principles in conformity with this opinion.