to cases where the selection of the tools used in the work devolves upon the employees engaged in the work generally, one of whom is the person injured, and not where it devolves exclusively upon the foreman of the work." In the case at bar the selection of the pike pole devolved upon the employees generally. It was not the duty of the foreman to go from one squad of men to another, simply for the purpose of picking up a pike pole from the ground and handing it to the man about to use it. The men using the pike poles were fully as competent as the foreman to select and use proper ones. Defendant performed its duty when it furnished the usual proper and safe appliances. Respondent places much stress upon Silveira v. Iversen, 128 Cal. 187, 60 Pac. 687. In that case the contention of plaintiff was that "the reefing pennant was rotten, and that it broke, to his injury; and that in this respect defendants failed in their duty, as his employers, to provide safe appliances with which to do his work." the question as to the selection of a defective implement by a fellow servant where proper ones are furnished and on hand is not discussed. We have found no case that sustains the plaintiff's contention here. The judgment and order should be reversed. were kept in a place apart from the place of use, and were selected by the foreman, and it was his particular duty to select the sort of clamp best adapted for the work in hand. The other employees were under no duty in respect of such selection. Angellotti, J., dissenting: I dissent. This case is clearly distinguishable from Helling v. Schindler and kindred cases cited in the opinion. Those were cases where the implement became defective during the use thereof by certain employees, and the defect was incident to and caused by the use thereof by them, and was of such a nature that the employees actually using the implement were bound to contemplate and take notice thereof. Such cases are not applicable where, as here, the tools and implements used by the men were delivered by the employer to his employees on the morning of the accident, and, at the time of such delivery by the employer, one of them was defective and unfit for use. The trial court found this to be the condition of affairs here, and that the accident was due to such defective condition. It further appears from the findings that the defect was of such a nature that it would be observed only on a careful examination. We have thus simply a case where the employer furnished to his employees an appliance defective and unfit for use, and the defect was not We concur: Harrison, C.; Chipman, C. obvious. The fact that other appliances of a similar character in good condition were furnished at the same time cannot affect the question here presented. The employees had the right to assume that all the tools and implements delivered to them by their employer for immediate use by them were, at the time of such delivery, in a reasonably Van Dyke, Henshaw, McFarland, and safe condition for such use, unless the deLorigan, JJ., concur. Shaw, J., concurring: I concur. The case of Wall v. Marshutz may be further distinguished. In the case at bar the employer did actually furnish to the employees a number of pike poles to be used when required. The points of the pikes would gradually become blunt by use, and it was manifestly the duty of the employees generally, and an implied condition of the contract of each, first, to observe when one became too blunt to be safely used, and either to repair them in that respect or return them to the employer for that purpose; and, secondly, when selecting one for use, to examine their condition and select one that was fit. In these respects the case is similar to Helling v. Schindler, cited in the principal opinion. In Wall v. Marshutz the different kinds of clamps for use were not furnished to the employees generally, but fect was obvious. To hold otherwise appears to me to seriously encroach upon the rule as to the duty of the employer to furnish implements reasonably sufficient for the purposes intended. Beatty, Ch. J., dissenting: I dissent. According to the findings of the superior court, Bevans was not simply the foreman of the gang of men engaged in removing the pole which fell; he was foreman of defendant's construction and repair department, and "all of said pikes and poles were under the charge and care of said Beyans whose duty it was, among other things to see that the same were kept in repair." As I understand the other findings, the two or three pike poles furnished this gang of men were issued by Bevans as being all of them fit for use as braces. There is no evidence and no finding that any one of them was in better condition than the one used, and the fact that is was dull could only have been ascertained by a careful examination. By this I do not understand that it required any prolonged or critical inspection of the point of the pike to discover its actual condition, but rather that it required some nicety of judgment to decide when one of these pikes had reached that degree of dullness to cause it, after being "forced into the pole," to slide along the grain of the wood and splinter out, instead of penetrating further when the weight of the pole was thrown against it. If it did require such nicety of judgment to determine that the appliance was unsafe, it is an unwarranted assumption to say the plaintiff and his fellow servants were bound to take notice of the fact, when the foreman especially charged with the custody and repair of the pikes had issued it for his use. I find no distinction in principle between this case and Wall v. Marshutz. Bevans here, as much as Walsh, in that case, was specially charged with the duty of selecting the proper appliance for the work in hand, and when he delivered three pikes to plaintiff and his fellow servants, to be used in the work to be done, it was an assurance, not that among them they would find one or two fit for use, but that they were all fit for use; and, considering his position and his duties, they were justified in trusting to his judgment, unless his mistake was apparent; and that does not appear. SOUTHERN PACIFIC RAILROAD COMPANY, Appt., v. APPEAL by plaintiff from an order of the Superior Court for Santa Barbara County overruling a motion for new trial after an allowance of damages for the condemnation of a railroad right of way over defendants' land on a theory which plaintiff alleged to be erroneous. Reversed. The facts are stated in the opinion. Messrs. Canfield & Starbuck, for appellant: The easement that may be condemned for a right of way for a railroad across a part of a larger tract of oil-producing land belonging to the same owner as the part taken is a different interest in law from the fee, and may have a substantially different value. Evidence of the value of the surface with the right to take out minerals or oil, i. e., of the fee, is irrelevant to the issue. Evidence of the value of the surface without that right is relevant to the issue, and the value of the surface without that right is the question, and the only question, for the jury to determine. The theoretical distinction remains between the fee and the interest taken, and becomes practical whenever there is any SAN FRANCISCO SAVINGS UNION et al., thing "to rebut the presumption" of their identity in value. Robbins v. St. Paul, S. & T. F. R. Co. 22 Minn. 286; Cummins v. Des Moines & St. L. R. Co. 63 Iowa, 397, 19 N. W. 268; Hollingsworth v. Des Moines & St. L. R. Co. 63 Iowa, 443, 19 N. W. 325; Clayton v. Chicago, I. & D. R. Co. 67 Iowa, 238, 25 N. W. 150; Tyler v. Hudson, 147 Mass. 609, 18 N. E. 582; Perley v. Chandler, 6 Mass. 454, 4 Am. Dec. 159; Woodruff v. Neal, 28 Conn. 165; Makepeace v. Worden, 1 N. H. 16; Winter v. Peterson, 24 N. J. L. 524, 61 Am. Dec. 678; Blake v. Rich, 34 N. H. 282; Tucker v. Eldred, 6 R. I. 404; Phifer v. Cox, 21 Ohio St. 248, 8 Am. Rep. 58; Jackson ex dem. Yates v. Hathaway, 15 Johns. 447, 8 Am. Dec. 263; Gidney v. Earl, 12 Wend. 98; Smith v. Rome, 19 Ga. 89, 63 Am. Dec. 298; Rich v. Minneapolis, 37 Minn. 423, 5 Am. St. Rep. 861, 35 N. W. 2; People ex rel. Van Sickle v. EldMay, 35 Iowa, redge, 3 Hun, 541; Overman v. 89; Fisher v. Rochester, 6 Lans. 225; Dubuque v. Benson, 23 Iowa, 248; West Covington v. Freking, 8 Bush, 121; Penn Gas Of course there may be a substantial benefit accruing to the grantor making a reservation of the fluids in favor of his retained tract, for the common reservoir will not be tapped by wells put down on the land granted; but this advantage amounts simply to this: That fewer wells can be put down to drain the common reservoir. And this benefit the one making the reservation will share with all others drawing upon the common source. Such a reservation, therefore, is simply a possible benefit to the land not sold, and not a reservation of dominion over any part of the land conveyed. Coal Co. v. Versailles Fuel Gas Co. 131 Pa. | to possession upon the land granted, he 532, 19 Atl. 933; McGregor v. Equitable Gas could never acquire dominion over them by Co. 139 Pa. 230, 21 Atl. 13; Beacon v. Pitts- virtue of the reserved right. burgh, Y. & A. R. Co. 1 Pa. Dist. R. 618; Northern P. & M. R. Co. v. Forbis, 15 Mont. 452, 48 Am. St. Rep. 692, 39 Pac. 571; Preston v. Dubuque & P. R. Co. 11 Iowa, 15; Tyler v. Hudson, 147 Mass. 609, 18 N. E. 582; Reading & P. R. Co. v. Balthaser, 119 Pa. 472, 13 Atl. 294; Hail v. Reed, 15 B. Mon. 479; Hughes v. United Pipe Lines, 119 N. Y. 423, 23 N. E. 1042; Bettman v. Harness, 42 W. Va. 433, 36 L. R. A. 566, 26 S. E. 271; Marshall v. Mellon, 179 Pa. 371, 35 L. R. A. 816, 57 Am. St. Rep. 601, 36 Atl. 201; Blakley v. Marshall, 174 Pa. 425, 34 Atl. 564; Williamson v. Jones, 39 W. Va. 231, 25 L. R. A. 222, 19 S. E. 436, 43 W. Va. 562, 38 L. R. A. 694, 64 Am. St. Rep. 891, 27 S. E. 411; Stoughton's Appeal, 88 Pa. 198; Wilson v. Youst (Wilson v. Hughes) 43 W. Va. 826, 39 L. R. A. 292, 28 S. E. 781; Ohio Oil Co. v. Indiana, 177 U. S. 190, 209, 44 L. ed. 729, 739, 20 Sup. Ct. Rep. 576; Townsend v. State, 147 Ind. 624, 37 L. R. A. 294, 62 Am. St. Rep. 477, 47 N. E. 19; Manufacturers' Gas & Oil Co. v. Indiana Natural Gas & Oil Co. 155 Ind. 461, 50 L. R. A. 768, 57 N. E. 912; Katz v. Walkinshaw, 141 Cal. 116, 64 L. R. A. 236, 99 Am. St. Rep. 35, 74 Pac. 766, 70 Pac. 663; Westmoreland & C. Natural Gas Co. v. DeWitt, 130 Pa. 235, 5 L. R. A. 731, 18 Atl. 724; Kelley v. Ohio Oil Co. 57 Ohio St. 317, 39 L. R. A. 765, 63 Am. St. Rep. 721, 49 N. E. 399. The court should have stricken out the testimony of the witness who testified as "market value" to what could probably be made out of the land by using it for a period of five years for oil production. Stockton & C. R. Co. v. Galgiani, 49 Cal. 139; San Diego Land & Town Co. v. Neale, 88 Cal. 50, 11 L. R. A. 604, 25 Pac. 977; Spring Valley Waterworks v. Drinkhouse, 92 Cal. 528, 28 Pac. 681. The court below erred in refusing to receive testimony as to the existence of a progressive increase or decrease in the pro ductiveness of the field. San Diego Land & Town Co. Neale, 88 Cal. 50, 11 L. R. A. 604, 25 Pac. 977; Spring Valley Waterworks v. Drinkhouse, 92 Cal. 528, 28 Pac. 681. Messrs. Richards & Carrier, for respondents: A grant of a tract of land with the reservation of the fluids in the soil, without a right reserved in the grantor to enter upon the land to extract the fluids, would be nothing more than a grant of the soil with a prohibition against reducing these fugitive substances to possession. Since the grantor could not reduce these reserved substances Ohio Oil Co. v. Indiana, 177 U. S. 190, 44 L. ed. 729, 20 Sup. Ct. Rep. 576; Townsend v. State, 147 Ind. 624, 37 L. R. A. 294, 62 Am. St. Rep. 477, 47 N. E. 19; People's Gas Co. v. Tyner, 131 Ind. 277, 16 L. R. A. 443, 31 Am. St. Rep. 433, 31 N. E. 59; Westmoreland & C. Natural Gas Co. v. DeWitt, 130 Pa. 235, 5 L. R. A. 731, 18 Atl. 724; Gould, Waters, § 291; 2 Bl. Com. p. 395. The property of the owner of lands in oil and gas is not absolute until it is actually in his grasp and brought to the surface. Brown v. Vandergrift, 80 Pa. 147. If the control over the surface is taken away, the right is extinguished. A witness as to property values must have some basis for his opinion, and that basis is not necessarily sales of like property. San Diego Land & Town Co. v. Neale, 88 Cal. 50, 11 L. R. A. 604, 25 Pac. 977; Spring Valley Waterworks v. Drinkhouse, 92 Cal. 528, 28 Pac. 681; Russell v. St. Paul, M. & M. R. Co. 33 Minn. 213, 22 N. W. 379; Santa Ana v. Harlin, 99 Cal. 538, 34 Pac. 224. Lorigan, J., delivered the opinion of the court: This action was brought to condemn a right of way for a relocated railroad of The strip sought to be condemned consisted plaintiff in the county of Santa Barbara. of about two thirds of an acre of land bestrip lay along the southern boundary of a longing to the defendant corporation. This larger tract, several acres in extent, belonging to the same owner, and located within the exterior limits of the Summerland oil field, or district, in which the oil flows naturally from higher or shallower to lower or deeper wells. The defendant Becker has an interest in both pieces of property under a contract with the defendant corporation. The case was tried before a jury, and, all issues having been waived except as to the value of the property taken, the evidence in the case was limited solely to that ques tion, and, being submitted to the jury a verdict was rendered in favor of defendants. The plaintiff moved for a new trial, and from the order denying it appeals. The main point on this appeal relates to the proper measure of value which should be applied in a suit to condemn land of the character involved here, namely, oil land,-whether an easement acquired over a strip of oil-bearing land, part of a larger tract of the same character owned by the same person, is equivalent to taking the fee, and must be paid for as of the value of the fee; or may it, when applied to such land, be an interest different in law from the fee, having a substantially different value, and to prove which the plaintiff should be permitted to introduce evidence? The lower court held, as a matter of law, that, in condemning a right of way over this strip of land, part of a larger tract of oil-bearing land, there could be no difference in value between the easement and the fee; and, not only, over plaintiff's objections, permitted defendants to address their evidence solely to the value of the fee, but instructed the jury that defendants were entitled to have an award to that extent. It was insisted by the plaintiff upon the trial that it sought, and under the law was entitled to condemn, only an easement in the property, and endeavored, by cross-examination of defendants' witnesses, and by witnesses produced upon its own part, to show that there was, in fact, a substantial difference in value between the fee in this land and the easement it sought to condemn for a right of way across it. The court refused to permit them to make this showing, and under all these rulings the question whether the court was correct as to the measure of value it applied, is presented. While it is no doubt true that, under the law of this state, a railroad company is only entitled to acquire by condemnation proceedings an easement over the land, and that the fee thereof remains in the owner, yet in most condemnation cases by railroad companies this distinction, as far as it enters into a determination of the damages to be assessed for the right of way acquired thereby, has no practical application. Usually in such cases there is no substantial difference in value between the easement and the fee, of which the law will take notice. Hence, in ordinary cases, where condemnation for a right of way for railroad purposes is sought, evidence is permitted to show, as the damages sustained, the full value of the land taken, upon the theory that the easement will be perpetual; that the right of way acquired, though technically an easement, will be permanent in its nature, and the possibility of aban donment by nonuser so remote and improbable as not to be taken into consideration; that the exercise of the right will require practically the exclusive use of the surface; and that any interest which might be reserved to the owner in the fee would only be a nominal one and of no value. Under such circumstances, as there can be no substantial determinative value in the fee apart from the easement, the law will not consider them separately, but will require the condemning corporation to pay the value of the fee as the measure of damages sustained. To illustrate: Where a right of way is condemned over agricultural land or over building lots, this is in effect to take the entire value of the land. In either case the underlying ground upon which the easement is imposed can be of no value to the owner. The sole value of such lands consists of the use to which the owner could devote the surface,-to cultivation or building, and, when he is deprived of that use, the entire value of the land is taken from him, and hence, for all beneficial purposes to the owner, there can be no difference in value between the easement and the fee. They are substantially identical in value. And to illustrate further: If the whole of a tract of mineral land is to be condemned, whether such mineral has a fixed situs, such as gold, iron, or coal, or the land overlies minerals of a fugitive and wandering nature, such as petroleum oil or natural gas, which may be drawn from it, the same rule for determining the easement taken would apply. As these minerals can only be reached from the surface, when all the surface is taken from him, the owner is deprived of the entire value of his land. A reserved ownership in the minerals would be merely nominal, and of no advantage or benefit to him. So that, in all these cases which we have instanced, it would be idle to endeavor to distinguish, in assessing damages, between the value of the easement and the value of the fee, because, in the nature of things, there is no real difference between them. When the easement is taken, the fee is substantially taken, and for all practical purposes in measuring damages the value of the fee is the only available and proper standard. But, while it is the rule that, where there is practically no substantial difference between the value of the fee and the value of the easement, the court may properly permit the value of the fee to be proved and assessed by the jury as the damages, yet in theory the distinction between the two remains, and in all cases, where it can be shown as a fact that the fee, burdened with the easement, is of some substantial value to the owner, this value is reserved to him, and must be taken into consideration in determining the damages to be awarded for the imposition of an easement upon the land. In condemning for a right of way, no more land and no greater interest in it can be taken by the railroad company than the public use requires, which is ordinari. ly the surface of the land. While it is true, as we have pointed out, that under some circumstances, in assessing damages, the value of the fee of the land taken is awarded, yet this is because in the nature of things there can be no difference in value between them. When, however, such a difference does exist, the rule is different, and the value of the easement taken, as distinguished from the value of the fee, is alone to be ascertained by the jury, and the owner compensated therefor. And this difference in value may, and usually does exist to a greater or less degree in all cases where the underlying estate is valuable for the minerals it contains, and when but a portion of the owner's land which contains them is burdened with the easement. Whatever minerals lie beneath the right of way are reserved to the owner, and wherever such minerals are in situ underlying this right of way, while he may not enter upon it to take them (because the nature of the easement requires exclusive possession of the surface by the company), he can drift from tunnels sunk upon his adjoining land and do so, leaving, however, sufficient support for the easement imposed. Subject to this support, the right of the owner of the land, to take out all the minerals beneath the right of way, is absolute. Under the condemnation the railroad company acquires the permanent and exclusive control of the surface of the land, but it acquires nothing more. It acquires no title to the minerals beneath the surface, and, of course, no right to dig beneath the surface for the purpose of appropriating them, and, if it should undertake to do so could be restrained at the instance of the owner of the underlying fee. While the title to the minerals underneath the right of way is reserved exclusively to the owner of the land across which it is condemned, there is no doubt that, by being restricted from entering upon it, it may be much more difficult and expensive for him to take them out, far more so than if he could operate directly over the land which has been appropriated under the easement; and it may be that much valuable mineral would have to be left to afford surface support, or, if this were taken out, a substituted surface support would have to be provided by the owner. But evidence of all these matters would be submitted to the court and jury, and would enter as substantial factors in determining the value of the easement. They would not affect the reserved right of ownership in the fee. While our attention has not been directed to any decision of this court adopting this as the rule in this state to be applied in assessing damages for the condemnation of a right of way over mineral lands, the authorities seem to be quite uniform upon the point in other jurisdictions, as far, at least, as lands containing mineral in situ are concerned, and the rule seems to be a reasonable and just one. Some of these authorities we cite: Robbins v. St. Paul, S. & T. F. R. Co. 22 Minn. 287; Hollingsworth v. Des Moines & St. L. R. Co. 63 Iowa, 444, 19 N. W. 325; Tyler v. Hudson, 147 Mass. 609, 18 N. E. 582; Blake v. Rich, 34 N. H. 289; Phifer v. Cox, 21 Ohio St. 255, 8 Am. Rep. 58; Penn Gas Coal Co. v. Versailles Fuel Gas Co. 131 Pa. 532, 19 Atl. 933; Northern P. & M. R. Co. v. Forbis, 15 Mont. 459, 48 Am. St. Rep. 692, 39 Pac. 571. But the particular question presented in this case, as to the proper measure of value which should be applied where an easement is sought over oil-bearing land, seems never to have been presented for determination to any court. At least our attention is called to no decision on the subject, and counsel upon both sides have been extremely thorough in the presentation and discussion of the subject. Counsel for appellant, reasoning from analogy, insists that the same rule should apply to oil lands as to other mineral lands, while counsel for respondents claim that there is no room for such application, and that there is such a radical and essential difference, both as to the character of the minerals and the nature of their ownership, as to make the rule inapplicable. But we do not think this difference in ownership, or the character of the minerals, of such a nature as to make it impossible that an owner of adjoining land can derive any benefit from a reservation in his favor of the petroleum oils in place, or which are liable to accumulate, by reason of the physical laws governing such fluids under the land upon which the casement is imposed. Nor can it be said that it is impossible to show, in ascertaining the value of the easement acquired, that this reserved right has no determinative value separate from the easement. These oils lie in reservoirs, and, collectively, the owners of the superincumbent lands have an exclusive ownership in them. The ownership of each, it is true, is only a qualified or partial ownership,-a right to reduce the oil in the common reservoir to possession by sinking wells upon the particular tract of land owned by him overlying it. But, when so being exercised, the owner of the well is not limited to any particular terri |