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30 Sup. Ct. 330, 54 L. Ed. 472; Missouri, | 674, 679, 82 N. E. 787, 85 N. E. 362, 20 L. R. etc., R. Co. v. Haber, 169 U. S. 113, 18 Sup. A. (N. S.) 461; State of Indiana v. L. & H. Ct. 488, 42 L. Ed. 878; Reid v. Colorado, 187 U. S. 137, 23 Sup. Ct. 92, 47 L. Ed. 108; 2 Elliott on Railroads, 690; 4 Elliott on Railroads, 1671.

The adjudication on this subject by the Supreme Court of the United States, with respect to the power of the state over the general subject of commerce, are divisible into three clauses, viz.: First, those in which the power of the state is exclusive; second, those in which the state may act in the absence of legislation by Congress; third, those in which the action of Congress is exclusive, and the state cannot interfere at all. Western Union Telegraph Co. v. James, 162 U. S. 650, 16 Sup. Ct. 934, 40 L. Ed. 1105.

[3] We are of the opinion that this act of the Legislature holds good under the second clause, supra, because the Railroad Commission is the agent to carry out the wishes of the Legislature, and the Legislature, in passing the act of March 6, 1999, intended the Railroad Commission should investigate the use of headlights, and if found necessary to order, and enforce the order, that better and safer headlights be put into use not only to protect the lives of travelers upon one train, but to protect the lives and property of travelers on any other train, running over the same road; and, as there is no legislation by Congress regulating headlights, this act is authorized until an act of Congress displaces or suspends its operation.

The Supreme Court of the United States, in numerous decisions, has said that a statute enacted by the state, by virtue of its police power, is not inconsistent with an act of Congress, unless the conflict is so direct and positive that the two acts cannot stand together. Savage v. Jones, 225 U. S. 501, 32 Sup. Ct. 715, 56 L. Ed. 1182, and cases cited. The last case involved the constitutionality of an act of the General Assembly of the state of Indiana. Acts 1907, c. 206. This same tribunal has declared that, where there has been no direct legislation upon the precise subject-matter, it is to be regarded as equivalent to a declaration by Congress that, until it sees proper to legislate thereon, the matter may be regulated by the state. County of Mobile v. Kimball, 102 U. S. 691-698, 26 L. Ed. 238; Pittsburgh, etc., R. Co. v. State, 172 Ind. 147-165, 87 N. E. 1034; Pittsburgh, etc., R. Co. v. Indiana, 223 U. S. 713, 32 Sup. Ct. 520, 56 L. Ed. 626; Chicago, etc., R. Co. v. Arkansas, 219 U. S. 453, 461, 31 Sup. Ct. 275, 55 L. Ed. 290; Chicago, etc., R. Co. v. State, 86 Ark. 412, 111 S. W. 456; Mondou v. New York, etc., R. Co., 223 U. S. 1, 54, 55, 32 Sup. Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44; Missouri, etc., R. Co. v. Larbee, etc., Co., 211 U. S. 612, 623, 29 Sup. Ct. 214, 53 L. Ed. 352. The decisions of our state are all to the same effect. Southern R. Co. v. Railroad Co. (January 3, 1913) 100 N. E. 337; Pitts

R. Co., 96 N. E. 340, and cases cited. There being no legislation by Congress relating to headlights on locomotives, this statute is within the power of the state to enact.

In the case of Atlantic Coast Line Railroad v. State of Georgia, 135 Ga. 545, 69 S. E. 725, 32 L. R. A. (N. S.) 20, the court holds an act of the Georgia Legislature, which provides that railroad companies are required to equip and maintain headlights on locomotives used by such companies on their main lines after dark, which shall consume not less than 300 watts at the arc, with a reflector of not less than 23 inches in diameter, and to keep it in good condition, and providing a penalty for its violation, does not violate the due process clauses of the state and federal Constitutions, because its enforcement will require a loss of property to the defendant in doing away with the headlight now in use, and cause the defendant to incur expense in equipping its locomotives with headlights required by this act. "The act was passed in the legitimate exercise of the police power of the state, and is not void on the ground that its requirements are unreasonable." "Statutes regulating other closely related subjects have been under discussion, however, and seem to establish, as fundamental propositions, that state legislation does not necessarily regulate interstate commerce because incidentally or remotely affecting it—or, in other words, state legislation is not deemed a regulation, strictly speaking, simply because it may to some extent, or under some circumstances, affect such commerce-that the state may, in the reasonable exercise of its police power, impose burdens upon interstate commerce, which occasion both inconvenience and hardship to the railroads, providing Congress has not directly regulated the same subject; but that, when Congress has acted with reference to a particular subject, its statutes displace, or at least suspend, all state regulation touching the matter; and finally that laws not so unreasonable as to be declared arbitrary, passed under the police power of the state, which regulate the equipment of railroad rolling stock with reference to the safety of employés and passengers, are not regulations of interstate commerce, in the objectional sense of the Constitution." Atlantic Coast Line R. Co. v. State, 135 Ga. 545, 69 S. E. 725, 32 L. R. A. (N. S.) 20. See other cases to the same effect: Chicago, M. & St. P. R. Co. v. Solan, 169 U. S. 133, 18 Sup. Ct. 289, 42 L. Ed. 688; Richmond & A. R. Co. v. R. A. Patterson Tobacco Co., 169 U. S. 311, 18 Sup. Ct. 335, 42 L. Ed. 759; Missouri, K. & T. R. Co. v. Haber, 169 U. S. 613, 18 Sup. Ct. 488, 42 L. Ed. 878; Lake Shore & M. S. R. Co. v. Ohio, 173 U. S. 285, 19 Sup. Ct. 465, 43 L. Ed. 702; C., C., C. & St. L. R. Co. v. Illinois, 177 U. S. 514, 20 Sup. Ct. 722, 44 L. Ed. 868; Chicago, R. I. Co. v. Arkansas, 219

[4, 5] The appellant presents the further in exact terms; it is sufficient if the subject question by its brief that the act in question is fairly deducible from the language emdelegates legislative powers to the Railroad Commission in violation of section 1, art. 4, of the state Constitution, and makes the taking effect of the law to depend on the order of the Railroad Commission in violation of section 25, art. 1, of the state Constitution, and is therefore void.

ployed. The proper test in all questions of this sort is, Does the body of the particular legislation embrace more than one general subject, and such matters as are calculated to assist in reaching the single object intended, and is that subject disclosed by the title? If thus tested, it appeared that an act emThe decisions of this court and the courts braces but one subject and matters properly of other states in this regard are clearly connected therewith, and that that subject is against appellant's contention. McPherson v. shown by the title, it must be held constituState, 174 Ind. 60, and cases cited on page tional; otherwise not. Isenhour v. State, 73, 90 N. E. 610, 31 L. R. A. (N. S.) 188; 157 Ind. 517-524, 62 N. E. 40, 87 Am. St. Rep. Isenhour v. State, 157 Ind. 517, 62 N. E. 40, 228; Gustavel v. State, 153 Ind. 613, 54 N. E. 87 Am. St. Rep. 228; Pittsburgh, C., C. & St. 123; Central Union Telegraph Co. v. Fehring, L. R. Co. v. State, 172 Ind. 147, 87 N. E. 146 Ind. 189, 45 N. E. 64; State v. Gerhardt, 1034; Detroit, T. & I. R. Co. v. State, 82 Ohio | 145 Ind. 439, 458, 44 N. E. 469, 33 L. R. A. St. 60, 91 N. E. 869, 137 Am. St. Rep. 758; 313; Henderson v. State ex rel., 137 Ind. Wabash R. Co. v. Railroad Commission, 95 552, 558, 36 N. E. 257, 24 L. R. A. 469; Booth N. E. 673. v. State, 100 N. E. 563.

[6] It is the contention that the title of the act in question is not sufficient; that it does not contain the subject of the act.

Does the act violate section 25, art. 1, providing that no law shall be passed the taking effect of which shall be made to depend upon any authority, except as provided in the Constitution? The decisions of this state are decisive of the question adverse to appellant's contention. Isenhour v. State, 157 Ind. 517, 523, 62 N. E. 40, 87 Am. St. Rep. 228, and cases cited; Booth v. State, 100 N. E. 563. The title is sufficient to cover the purview of the act, and is not in conflict with section 19, art. 4, of the Constitution of the state. The title relates to headlights on engines; and the act itself relates only to this one subject.

The title of the act in question reads as follows: "An act giving the Railroad Commission of Indiana specific power to investigate and determine as to the efficiency of headlights now in use on locomotive engines on the railroads in Indiana, and to prescribe efficient and practical headlights now in use on locomotive engines on the railroads in Indiana [sic] and to prescribe efficient and practical headlights and to make and enforce order with reference thereto and declaring an emergency." The section of the act in question reads as follows: "Be it enacted by the [8] It is contended by the appellants that General Assembly of the state of Indiana, the order made is in conflict with the fourthat in addition to the powers heretofore teenth amendment of the Constitution of granted to the Railroad Commission of Indi- the United States, and that it is without due ana, that said Commission be, and it is here- process of law. The act in question is supby, specifically empowered, authorized and di- plemental to the Railroad Commission Act of rected, as soon as practical after the passage 1905, in which provision is made for the of this act, to investigate the condition and method to be pursued by railroad companies efficiency of headlights now in use on loco- dissatisfied with an order of the Commission, motive engines on the railroads in this state, and by which the orders of the Railroad. and if found to be inadequate for the protec- Commission are enforced “by appropriate ac-tion of persons and property, or any other tions at law or suits in equity instituted and purpose, to investigate and determine what prosecuted in some court of competent juriswould be the most practicable and efficient | diction,” and gives appellant its day in court. headlight for all purposes, and when the Sections 5533, 5536, 5541, 5548, 5550, BurnsCommission shall have so determined, to 1908; New York, etc., R. Co. v. New York, make and enforce against the railroad com- 165 U. S. 628, 633, 634, 17 Sup. Ct. 418, 41 panies such order or orders as may be found L. Ed. 853. The order of the Commission to be necessary to require the equipment and was made after notice to the company and installation of such headlights on the locomo- hearing had, covering several months; and tives on the railroads in this state, and to it could not be said to be made "without due this end said Commission is given power in process of law," as required by the foursuch investigation to examine the various teenth amendment to the Constitution of the kinds of lights that may be suitable for loco- United States. motive headlights, and appliances thereto, to consult experts in such matters as to require the attendance of witnesses and the production of papers, documents, and appliances." An emergency is declared.

[7] It is not essential to a good title that the subject of the act shall be expressed

[9] The fact that the appellant would be compelled to make change in their locomotive headlights, and necessarily be to some expense in doing so, would not render the act, nor the order made in pursuance thereof, illegal and void, for the reason that under the police power of the state, which has to do

There being no error in the record, judgment affirmed.

CAMPBELL v. SMITH et al. (No. 21,993.) (Supreme Court of Indiana. March 13, 1913.) 1. MINES AND MINERALS (§§ 76, 81*)-TRESPASS-RELIEF.

Conceding that oil and gas lessees might have enjoined the removal of oil by the owner and subsequent lessees, they were not limited to that remedy, but could sue for the damages to their leasehold interest from such removal. [Ed. Note. For other cases, see Mines and Minerals, Cent. Dig. §§ 203, 211; Dec. Dig. §§ 76, 81.*]

with the health, comfort, safety, happiness, | 89 Ind. 260; Mitchell v. City of Peru, 163 and welfare of its citizens, all property is Ind. 17, 71 N. E. 132. "subservient to the state. P., C., C. & St. L. Ry. Co. v. Brown, 67. Ind. 45, 33 Am. Rep. 73; State v. Richcreek, 167 Ind. 217, 77 N. E. 1085, 5 L. R. A. (N. S.) 874, 119 Am. St. Rep. 491, 10 Ann. Cas. 899; State v. Barrett, 172 Ind. 169, 87 N. E. 7; Inland Steel Co. v. Yedinak, 172 Ind. 423, 87 N. E. 229, 139 Am. St. Rep. 389; Barrett v. State, 175 Ind. 112, 93 N. E. 543; Booth v. State, 100 N. E. 563. The Railroad Commission law of this state was intended by the Legislature to vest in this Commission the power to act for the Legislature in all matters covered by said act, and is a salutary measure for the proper operation of the railroads of the state; and the "Headlight" act of March 6, 1909, being chapter 128, p. 323, of the acts of the Gen- DAMAGES. eral Assembly of 1909, is in further aid to this Commission, each of which were intend ed and were enacted on the supposition that the railroads operating in the state were willing to and would use all proper and available means in their power to secure the safety of the public in general, and their employés in particular. This law was so drafted that, if any order should be made by the Commission that was indefinite or uncertain in its terms, upon the proper application the same could be changed, modified, or altered to meet the inquiry submitted by the complaining company. Section 5537, Burns 1908; Acts 1907, p. 454, § 7; Chicago, etc., R. Co. v. Railroad Commission, 175 Ind. 630, 95 N.

E. 364.

[10] It is evident that the order is not open to the defect of being "uncertain" and "indefinite," as claimed by appellant, for they aver in their petition "that the equipment of plaintiff's said locomotive engine

with the headlight prescribed by said order will cost the plaintiffs more than $100 per engine." This allegation, it seems to us, indicates that appellant was fully advised as to what was required of it. At least it is in no position to complain until it has made an honest effort to comply with the order, with the best information at hand. Chicago, etc., R. Co. v. City of Crawfordsville, 164 Ind. 70-74, 72 N. E. 1025; Booth v. State, 100 N. E. 563, decided by this court January 28, 1913. "Candle power" has a usual and ordinary meaning, and could be ascertained upon due inquiry.

2. MINES AND MINERALS (§ 76*)-TREspass

terminate oil and gas leases, and brought suit Where an owner of land gave notice to to cancel the leases, and thereafter made leases to other parties who, without any objection from the original lessees, removed oil from the land, the owner was not a willful wrongdoer, although in the suit to cancel the leases it was subsequently determined that the original leases were in force, and hence she was only liable for the value of the oil removed, less the cost of extracting it from the soil, and, where such cost exceeded the value, the lessees could not recover.

[Ed. Note.-For other cases, see Mines and

Minerals, Cent. Dig. § 203; Dec. Dig. § 76.*] 3. MINES AND MINERALS (§ 73*)-RIGHTS OF

OIL AND GAS LESSEES.

Oil and gas lessees are not the owners of the oil and gas until reduced to possession, but only have the exclusive right to mine therefor.

[Ed. Note. For other cases, see Mines and Minerals, Cent. Dig. §§ 201, 210; Dec. Dig. § 73.*]

Appeal from. Circuit Court, Delaware County; J. G. Leffler, Judge.

Action by John W. Smith and others.

against Julia E. Campbell and others. From
Reversed, with directions.
the judgment, the defendant named appeals.

Transferred from the Appellate Court under section 1405, Burns' Ann. St. 1908.

Myron H. Gray, of Muncie, and Jesse R. Long, of Chicago, Ill., for appellant. Griffith & Ross, of Detroit, Mich., and Abram Simmons and Frank C. Dailey, both of Bluffton, for appellees.

MYERS, C. J. Appellant was on May 20, 1897, the owner in fee simple of 120 acres of land in Delaware county, Ind. On that date, she and her husband executed a lease We are of the opinion that the complaint on said real estate to the Rock Oil Compain this cause does not show a state of facts ny "for the purpose and with the exclusive which would entitle the appellant to the re- right of drilling and operating for gas and lief sought, and hence the rule is applicable petroleum." The lease, among other things, that a bad answer is good enough for a bad provided that "the party of the second part complaint. State v. Myers, 100 Ind. 487; Ice is to have and to hold the said premises for v. Ball, 102 Ind. 42, 1 N. E. 66; Alkire v. and during the term of five years from the Alkire, 134 Ind. 350, 32 N. E. 571; Grace v. date hereof, and as much longer as oil or Cox, 16 Ind. App. 150, 44 N. E. 813; Alexan- gas are found in paying quantities, or the der v. Spaulding, 160 Ind. 176, 66 N. E. 694; rental paid thereon." It was further proTyler v. State, 83 Ind. 563; State v. Porter,vided that the Rock Oil Company "shall com

plete a well on the above-described premises | patch to operate for oil and gas on said within one year from the date above, or, in premises, under penalty of forfeiture of all default thereof, pay to the parties of the rights and privileges under said instrument⚫ first part, for such delay, a yearly rental of lease." of $60 on the said premises from the time of completing such well, as above specified, until such well shall be completed"; and the Rock Oil Company "agree to drill an oil or gas well within one year from the above date, or forfeit to the parties of the first part $50." The lease also provided for furnishing gas free of cost for household use on the premises, so long as the lease is in force. The lease was recorded in Delaware County June 4, 1897.

This action was instituted by the Rock Oll Company and certain individuals, who had, by assignment, acquired a half interest in the first lease to recover alleged damages for the invasion of their alleged exclusive right of a grant to enter and possess the oil in the leased field. The defendants were Mrs. Campbell, the Lily Oil Company, and the Indiana Pipe Line Company. There was judgment against the two former, and ancillary proceedings in attachment were sustained. This appeal is by Mrs. Campbell alone.

No well was drilled for oil or gas by the Rock Oil Company, or any one else, until the middle or latter part of April, 1904, at which time the plaintiff's caused a derrick and drilling machinery to be placed on said real estate, and proceeded to drill a well which was shot with nitroglycerine on the 18th day of May, 1904; and no pipes or pipe lines were placed on said real estate, and no oil or gas was produced or saved therefrom prior to the 18th day of May, 1904; that gas for household purposes was never delivered to Julia E. Campbell or her tenant or tenants on said real estate, and no request was made therefor other than that contained in the notice of March 26, 1904; that no gas was produced from said well which was shot on the 18th day of May, 1904, and the only oil produced therefrom was run into the lines of the Indiana Pipe Line Company, as follows: On June 24, 1904, 158.89 barrels; on August 6, 1904, 167.37 barrels; on the 19th day of May, 1904, the well was cleaned out and tubed, and a small quantity of oil pumped from it on the 20th day of May, 1904: on the 19th day of May, 1904, the well produced only water when pumped, and thereafter, when it produced oil, it produced it in small quantities, and suddenly stopped and produced large quantities of salt water,' with the result that the salt water smothered the oil and prevented the well from produc

The complaint is in two paragraphs; one counting upon an alleged invasion of appellees' common-law rights, without counting on the contract, and the second paragraph counting upon the written contract. The sufficiency of each paragraph was unsuccessfully challenged by demurrers for want of facts to constitute causes of action; and error is here predicated upon those rulings. The facts, upon proper request, were found speing the oil-that, immediately after the well cially by the court, and conclusions of law stated; but as the findings closely follow the allegations of the complaint, and the determination of the question as to the findings and conclusions necessarily determine the sufficiency of the complaint, it will not be necessary to consider the complaint. Marion State Bank v. Gossett, 175 Ind. 211, 213, 93 N. E. 996; Goodwine v. Cadwallader, 158 Ind. 202, 61 N. E. 939.

was completed, shot, and started to pumping, the plaintiffs provided at said well sufficient machinery of proper character for pumping and operating the well, and erected tanks for the reception of oil from the well before the well was completed; after it had started to pump the well, it was continuously pumped night and day, until some time during the month of August, 1904, and that during all the time plaintiffs made a goodThe material findings are the execution and faith effort to procure oil from the well, and recording of the lease; that payments were operated the same in a skillful manner to made as rentals under the lease in the sum endeavor to either make the same a paying of $60 per annum annually up to and includ- well, or ascertain whether the well was a ing April 13, 1903, and a payment of $50 paying well, or not a paying well; that the June 17, 1898, by way of forfeiture under well so drilled was drilled to a depth of the terms of the lease; that on March 26, 1,240.5 feet, and said depth was a proper 1904, appellant served a written notice on depth for finding oil in the deep pay in that the Rock Oil Company to the effect "that the territory, as shown by the successful deep lease for gas and oil, made by the under-pay wells theretofore and thereafter drilled signed to the Rock Oil Company, bearing in that territory; that the plaintiffs paid out date May 20, 1897, on (the described prop- and expended in and about the work of drillerty), will not be extended beyond the peri-ing and completing the well on and before od for which extension has been made, and the 20th day of May, 1904, the sum of $1,assented to, to wit, May 20, 1904, or delay in operation on said premises be delayed beyond such period. Nor will a money consideration be received and accepted for further extension or delay in operation thereon. You are hereby notified and required to proceed with all reasonable promptness and dis

677.25, and after the 20th day of May, 1904, they expended for machinery and other equipment for operating the well, and completing the same, and in operating the same, $3,704.89; but, of the machinery so purchased, they removed from the premises, after the same had been placed on said premises.

machinery of the value of $1,551.22. The defendant the Indiana Pipe Line Company amount expended by the plaintiffs in drilling is and was a corporation organized under the well and equipping the same for opera- the laws of Indiana at the time it received tion and in operating the same was the sum of $3,$30.92.

and transported said oil through its said pipe lines, and the Lily Oil Company and apWhile plaintiffs were drilling the well, de- pellant signed and executed and filed with fendants had full knowledge that plaintiffs the Indiana Pipe Line Company, on Januwere drilling said well and expending money ary 16, 1906, in its office at Lima, Ohio, a therefor, and made no objection to the drill-written division order for the sale of the ing of said well by the plaintiffs, and had knowledge that the plaintiffs were running and operating said well, after it was so completed, for the purpose of procuring oil, and made no objection to plaintiffs' operating said well, and made no objection prior to June 10, 1904, when appellant filed her complaint in the Circuit Court of the United States for the District of Indiana against the plaintiffs to cancel said lease, to quiet title against the plaintiffs, who were claiming an interest by virtue of said lease and the improvements thereon; that the suit so filed by appellant was tried and determined, and a judgment rendered in favor of the plaintiffs in this action, dismissing the bill of complaint so filed by appellant, and rendering judgment against her for costs. Appellant appealed from the judgment which was affirmed by the Circuit Court of Appeals for the Seventh Circuit on the 2d day of January, 1907 (151 Fed. 191, 80 C. C. A. 467). Pending the litigation in the United States courts, appellant on the 7th day of November, 1904, her husband joining her, executed an oil and gas lease on the same land to the defendant Lily Oil Company, a corporation, and on the same day the latter company entered upon the real estate and drilled two oil wells thereon from which it produced between the 30th day of December, 1904, and the 9th day of December, 1905, 7,338.09 barrels of oil; that the oil was run by the Lily Oil Company into the lines of the defendant the Indiana Pipe Line Company, and on January 22, 1906, the Lily Oil Company sold 6,115.08 barrels of said oil, and appellant sold 1,223.01 barrels of said oil; that the value of the oil produced and sold was $5.442.42, less storage charges in the sum of $396.76, leaving a net amount, which the Lily Oil Company received, of $5,045.56; that the appellant received, for the oil sold by her, $1,088.47, less storage charges of $79.35, leaving a net balance, which appellant received from the sale of said oil, of $1,009.12; that on the 30th day of May, 1907, 84.78 barrels of oil, produced from the two wells prior to January 22, 1906, by the Lily Oil Company, was run into the lines of the Indiana Pipe Line Company, 70.65 barrels of which was placed to the credit of the Lily Oil Company, and 14.13 barrels to the credit of appellant, all of which yet remains in the care and custody of the Indiana Pipe Line Company; that the fair market value of all

oil so sold by the Lily Oil Company and appellant; that said oil, when so sold, was transferred to the purchaser by the Indiana Pipe Line Company on the written orders of the Lily Oil Company and appellant, filed in the office of the Indiana Pipe Line Company; that at the time the oil was sold by the Lily Oil Company and appellant, and was transferred by them upon their written order by the Indiana Pipe Line Company, the latter had full knowledge of the pendency of the suit in the United States Circuit Court for the District of Indiana, and had been notified before the sale that plaintiffs claimed the oil, and that the Indiana Pipe Line Company should hold the oil until after the suit was determined in said court; that the plaintiffs operated the well drilled by them, and which was shot on the 18th day of May, 1904, in such manner as to them seemed best for a number of months after the same was shot, and the defendants at no time molested or interfered with them in the operation of the well; that plaintiffs were never at any time notified or warned by defendants or either of them, to quit said premises, stay off the same, or cease operations, except such as was given by the notice of March 26, 1904, and by the suit commenced on June 10, 1904, and that the plaintiffs never enjoined or restrained the defendants, or any of them, from carrying on operations on said premises, or any part thereof; that the fair and reasonable cost of mining the oil from the premises so mined by the Lily Oil Company, including the reasonable value of drilling wells and equipping the same for operation, and the operations carried on in producing and marketing the oil, and the actual cost to the defendant Lily Oil Company in drilling the two wells, equipping the same, producing and marketing the oil, was $8,220.92; that when it entered upon the real estate and constructed the oil and gas wells thereon, and mined and produced the oil therefrom, the Lily Oil Company did so without right, and its actions and conduct in so doing was wrongful and unlawful, and was a trespass against the rights of the plaintiffs herein; that at the time appellant executed the oil and gas lease to the Lily Oil Company, under which it drilled the two wells and produced the oil, she did so without right, and the same was unlawful and wrongful, and she had no right or authority at the time to execute the lease; that the mining, produc

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