by implication, he might forfeit his rights by failure to perform, but the question becomes then one of. forfeiture of a conditional grant, rather than of the validity of an optional or unilateral contract. This distinction may not always have been kept in mind in the language of the decisions above reviewed. Compare: Presidio Mining Co. vs. Bullis, 68 Texas, 581, 4 S. W., 860; Emery vs. League, 31 Texas Civ. App., 474, 72 S. W., 603; Roberts & Corley vs. McFadden, Weiss & Kyle, 32 Texas Civ. App., 47, 74 S. W., 105; National Oil & P. L. Co. vs. Teel, 95 Texas, 586, 68 S. W., 979; S. C., 67, S. W., 545; Witherspoon vs. Staley, 156 S. W., 557; Great Western Oil Co. vs. Carpenter, 43 Texas Civ. App., 229, 95 S. W., 57; Owens vs. Corsicana Pet. Co., 169 S. W., 192.

The suggestion may be ventured that the fact that the purchaser is not bound to complete the performance which would give him title, does not render his contract either void or voidable, if there is a consideration to support it other than such performance. And this would be true although the performance was the main consideration moving the seller or lessor to enter into the contract. The fact that it was the main consideration would, however, have an important bearing upon the time and circumstances under which the grantor would be entitled to treat the grantee's contract as forfeited by his non-compliance with the conditions. Though the existence of a valuable independent consideration might suffice to support an optional contract, that is a grant conditioned on subsequent performance by the grantee of things which he is left free to perform or not, the time for exercising an option, as has already appeared, must be fixed and reasonable, and its reasonableness might depend on the subject matter dealt with and the attendant circumstances. This consideration might have some bearing on a case like that of Owens vs. Corsicana Pet. Co., above mentioned, where the lessee postpones development by paying the alternative rental, and meanwhile draws off the oil into his wells on adjoining land.

This subject has recently been considered by the Su

preme Court of the United States in Guffey vs. Smith, (April 5, 1915) 35 Sup. Ct. Reporter, 526, 237 U. S., 101, reversing Smith vs. Guffey, 120 C. C. A., 436, 202 Fed., 106. The court hold the lease (similar to that in the Owens case, supra) not voidable by the lessor, though a right to terminate it was reserved to the lessee,-following the rule of property established by the decisions in Illinois, where the case originated. The lessee was held entitled to injunction against mining operations by the lessor or a subsequent lessee from him, and to an accounting for the profits already accruing therefrom.

The decision turned upon the question whether such an optional right to terminate, reserved to the lessee, though conceded not to create, at law, a tenancy at will terminable by the lessor also, was so inequitable and lacking in mutuality as to preclude the lessee from maintaining the action for equitable relief by injunction. The court held that it was not, and awarded the lessee such relief, refusing, in this, to follow rulings of the Supreme Court of Illinois to the contrary.

This decision and the numerous cases cited therein and in briefs of counsel afford a good starting point for investigating the result of the rulings in other states upon this and related questions growing out of such leases. They are numerous and not harmonious; and a review of them is beyond the scope of this work, which is not designed to go beyond a statement of the law as adjudged in Texas.

CONTRACTS FOR OPERATION.

Concerning contracts other than those between the owner of the soil and his grantee or lessee, a few decisions may be noted:

An oil company has been held entitled to lease to another its real property, though it has itself begun mining thereon, to be operated for it by the lessee for a royalty. Stark vs. Guffey Pet. Co., 80 S. W., 1080.

A contract by one oil company to operate the well of another, and to take out and pay for a fixed amount

monthly, was for the protection of the owning company from loss by exahustion of the supply by others. Its offer to take out and pay for the same amount subsequently did not cover this. And an agreement for the cancellation of the lease did not relieve it from the liability previously incurred in operating under it. Alabama Oil, Etc., Co. vs. Sun Co., 99 Texas, 606, 92 S. W., 253, reversing

90 S. W., 202.

An oil company contracted to supply fuel oil to certain industries, but it was to be relieved from its undertaking in case of "failure of oil wells." Under the circumstances shown this was construed to mean failure of their own wells to flow by natural pressure. They were not bound to continue the supply, at the terms named, when they could obtain it from their wells only by pumping. San Jacinto Oil Co. vs. Ft. Worth, Etc., Power Co., 41 Texas Civ. App., 293, 93 S. W., 173.

A contract for drilling an oil well, with provision for the proprietor continuing the work after the contractor abandoned it, was construed in Hammond vs. Decker, 102 S. W., 453.

4. MINERAL RIGHTS IN PUBLIC LANDS.

The United States acquired no title to the public lands of Texas by its admission to the Union. Articles of Annexation, Sayle's Early Laws, Vol. 1, Art. 1531. Consequently the mining laws of the Federal Government, applicable only to its own lands, are not in effect here. The acquisition of mineral lands and mining rights in Texas is regulated by its own laws. Revised Statutes, Articles 5904-5922, ante. The ownership of minerals in the soil underlying bays and navigable streams has been considered under paragraph 2 above.

The early policy of the State reserved the minerals in its grants of lands. Cowan vs. Hardeman, 26 Texas, 217. But these mineral rights were later released to the owners of patented land. Const. 1866, Art. 7, Sec. 39; State vs. Parker, 61 Texas, 265.

The Act of April 4, 1883, which reserved the minerals in school land to the State, did not provide for the sale of the minerals separately, but for mining claims to be worked for a royalty to the State. The Act of March 29, 1889, authorized the sale of mineral bearing lands with the minerals, but not sale of the minerals separately. Where land was sold as grazing land in December, 1887, though the minerals should be held not to have passed by the sale, there was no law in 1900 authorizing another to enter a mining claim upon it or to buy the minerals from the State separate from the land. Heil & Schuster vs. Martin, 96 Texas, 209, 71 S. W., 814.

These regulations were succeeded by the present law, the Act of 1895, permitting prospecting and the sale of the land with the minerals. Decisions as to the right to purchase under this Act are collected in the note to Article 5912, Rev. Stats., ante.

5. EMPLOYER'S LIABILITY.

Oil and gas companies, in their relations to their employes, come under the provisions of the Act of April 16, 1913, commonly known as the Employer's Liability Law. Laws 1913, pp. 429-438. By Section 1 of this Act, contributory negligence of an employe injured or killed is no longer a full defense to actions therefor, but merely a ground for abatement in the amount of damages. It is no longer a defense that the injury was caused by the negligence of a fellow servant. Nor is the defense of assumed risk allowable except when the injury was intentionally incurred by the employe.

Companies or individuals employing more than five employes may become members of the "Texas Employers' Insurance Association", and in this case, by the payment of premiums for insurance of their employes against accident, recourse of the latter for injury, or of their heirs in case of death from injury, may be had only against such insurance fund, the right thereto being determined by the "Industrial Accident Board", or by action against such Board.

TAXATION.

STATE AND COUNTY.

The recent important ruling on the liability of the estate conveyed by an oil lease to taxation as an interest in real property has already been noted. Texas Co. vs. Daugherty, Sup. Ct., May 21, 1915; 176 S. W., 717. In that case the Texas Oil Co. had been taxed as owner of interests in various tracts of land in which it held oil and gas rights by leases, all substantially to the same effect. These instruments, for a valuable consideration, "granted, bargained, sold and conveyed all the oil, gas, coal, and other minerals in and under" the respective tracts of land. They gave the usual drilling and mining rights, conditioned on the beginning of drilling operations by the grantee within one year, with the alternative of continuing the contract in force for three years by payment of an annual rental. On development of a paying well, grantee's rights were made absolute, subject to payment of royalties on the oil and gas produced, for the period of twenty years, and so much longer as oil or gas continued to be produced in paying quantities. Each instrument concluded with the following clause:

"This lease is not intended as a mere franchise, but is intended as a conveyance of the property and privileges above described, for the purposes herein mentioned and it is so understood by all parties hereto."

The owners of the fee had rendered these lands for taxation at their fair market value, subject to the rights conferred on the lessees by the contracts, and considering their value as oil bearing lands, present or prospective, as limited to the royalties reserved in the leases. rights of the lessee were taxed separately as interests held by it in the land.

The

The oil company claimed that oil and gas, owing to their fugitive character, were not capable of being conveyed in situ, the owner of the soil having himself no absolute title to them, but merely a right to acquire