*166The opinion of the court was delivered by
Porter, J.:Plaintiff in error fails to specify in his brief any errors complained of, as required by rule 10 of this court, and the judgment might be affirmed for this reason. It is a case, however, in which particular specifications are not so material. The main contention is that the judgment is not sustained by sufficient evidence and is contrary to law.
Most of the testimony was in reference to the actual knowledge plaintiff had of the lease and exception referred to in the first deed. The court very properly ruled all of it out of the case. Whether he had actual notice was immaterial. He was bound by the recitals in the former deed. (Knowles v. Williams, 58 Kan. 221, 228, 48 Pac. 856.)
The case turns upon the force and effect of the provision in the deed. Plaintiff argues that it is a reservation instead of an exception. Considerable learning has been expended in refining the distinctions between an exception in a deed and a reservation. Strictly speaking, a reservation is something created or reserved out of the thing granted that was not in existence before, while an exception must be a part of the thing granted. (Winston v. Johnson, 42 Minn. 398, 45 N. W. 958.) A similar provision in a deed was held to be an exception and not a reservation in Barrett v. Coal Co., 70 Kan. 649, 79 Pac. 150. There the provision was as follows:
“This deed is made subject to the following exceptions, reservations, and conditions, to wit: The said party of the first part hereby reserves the coal and all other mineral underlying said land.”
The deed in that case contained both words, “exceptions” and “reservations,” but otherwise the provision is similar to the one here. The modern tendency of the courts has been to brush aside these fine distinctions and look to the character and effect of the provision itself. (Gould v. Howe, 131 Ill. 490, 23 N. E. 602.) While the distinction between an exception and a res*167ervation in a deed is well established, the words are frequently used interchangeably and synonymously. (11 A. & E. Encycl. of L. 555.) In Bainbridge on Mines and Minerals it is said:
“The severance of mines is usually effected by exceptions in deeds of assurance, which transfer the freehold in the surface and reserve the mines. An exception is distinguished from a reservation by its being part of the thing granted and in existence at the time of the grant, while the latter is a right of new creation arising out of the subject of the grant. They are different in legal effect, but in their creation There is no magic in words,’ and if the meaning is clear, either of the above expressions will operate for the purpose designated. They are also construed exactly in the same way as actual grants. In either case the law favors their construction by giving them all proper and necessary incidents.” (Page 34.)
“The owner of land may convey a surface estate in fee in it, and reserve to himself an estate in fee in the minerals or any particular species of them, in which case the vendor holds a distinct and separate estate in the minerals. By this severance each estate is subject to the law of descent, devise and conveyance.” (Kincaid, &c., v. McGowan, &c., 88 Ky. 91, 4 S. W. 802, 13 L. R. A. 289.)
Another case very much in point is Murray v. Allred, 100 Tenn. 100, 43 S. W. 355, 39 L. R. A. 249, 66 Am. St. Rep. 740. There the owner of land made a conveyance reserving “all mines, minerals and metals in and under” the same. His grantee conveyed by general warranty, without any reservation. Allred, who took by regular chain of conveyances, brought an action to determine the ownership of the petroleum oil beneath the lands, claiming that oil is not a mineral, but that, if it should be held to be a mineral, his possession of the surface was adverse to the claim of defendant to the oil. The court in an exhaustive opinion held that oil is a mineral, and recognized the doctrine that the exception in the deed separated the estate in the minerals from the estate in the lands, and that the possession of the surface of the land, without any denial of the mineral rights, was not adverse to the claim of the owner of the minerals.
*168Different estates may be created in the surface and soil'of lands and the underlying strata in which minerals, oils and gas may be found; and this separation of estates may be accomplished by an exception in the deed conveying the lands by which the grantor carves out and retains the right to the minerals in the land. The right retained by the exception is the ownership of the minerals. (Chartiers Block Coal Co., Appellant, v. Mellon, 152 Pa. St. 286, 25 Atl. 597, 18 L. R. A. 702, 34 Am. St. Rep. 645; Koen v. Bartlett, 41 W. Va. 559, 23 S. E. 664, 31 L. R. A. 128, 56 Am. St. Rep. 884.)
Plaintiff contends, however, that the cancelation of the Guffey & Galey lease, mentioned in the exception, operated to extinguish the rights of defendants therein and to vest in the owner of the lands all the rights in the oil and gas. The case of Joseph Farnum v. Abiel Platt, 25 Mass. 338, 19 Am. Dec. 330, is in point. The owner of real estate, having leased a stone-quarry thereon for a term of years, conveyed the land, reserving the use of the quarry until the expiration of the lease. During the continuance of the term the lease was canceled by consent. It was held that this did not extinguish the reservation, but that it would continue until the end of the term. Besides, the rights of defendants in the oil and gas do not depend upon the existence of the lease. The deed excepted and saved to them not only their rights under the lease but “all oil-and-gas privileges in and to said premises.”
The provision in the deed to Mrs. Gore is an exception, as distinguished from a reservation. Its force and effect was to carve out a separate estate in the oil and gas from the estate in the surface and soil. The title to the surface and soil of the lands passed to the grantee; the title to, and ownership of, the oil and gas. in the lands remained with the grantors.
The judgment is affirmed.
All the Justices concurring.