It will be noticed that the extension of April 5, 1893, requires the rental of $150 to be paid each year in advance, and this must prevail over the 'averment in the answer that it' is not required to be paid in advance. Whether the rental was tendered in advance each jrear d refused is not clear from the record, but it will be here regarded as having been so tendered and refused.
The plaintiff in error claims that it was entitled to judgment in its favor except as to the $240 upon the conceded facts found in the pleadings, and which are stated above so far as controlling or material, its claim being that the gas lease entered into by Mr. Taylor was an entirety 'and indivisible, that the rental of $150 was for the whole one hundred acres, that it was evicted from the sixty acres by the leáse of Mr. Shoop to the city of Tiffin, and that in no event can Mr. Ullery, the owner of the forty acres upon which the gas well is situated, recover more than his proportionate share of the yearly rental, $60, out of the $150.
While the lease does not expressly state that the- lands may be subdivided, such subdivision seems to be implied, because it is made *348to extend to heirs, executors and assigns. There might be m'any heirs and many assigns. In this case there are two assigns, and it would seem that each would be entitled to his separate and individual interest in the oil or gas produced on his part of the land. But whether each is so entitled does not depend so much upon the word assigns, as upon the principle of entirety and divisibility in such eases.
We fully concur in the doctrine of the apportionment of rents so ably argued by counsel for plaintiff in error, but that doctrine does not dispose of .the question as to whether the lands may be subdivided nor of the question as to the payment of the rental for each gas well.
In any view that may be taken of this case, the question comes back to the point as to whether the lease is entire and the lands and rental of gas wells indivisible, in short, whether the principle of Wettengel v. Gormley, 160 Pa. St., 559, is applicable, and if so, whether it shall be followed or not. In that ease, the court held as follows:
“Whether three tracts of land, all subject to the same oil and gas lease, are devised respectively to the owner’s three children, the royalties accruing under the lease are divisible among the three devisees, although all of the wells are sunk on only one of the three tracts.
“Owing to the vagrant character of oil and gas, a lease of these substances partakes of the character of a lease for general tillage rather than that of a lease for mining or quarrying the solid minerals.”
:We have several times had occasion to Carefully examine and consider that case and it has always failed to receive the approval of our judgment; and upon a reconsideration here, it again fails to convince us of its soundness. And the reconsideration of the same principle in the same case in Wettengel v. Gormley, 184 Pa. St., 354, fails to strengthen the original case. Those cases were between devisees, and the question as between the lessee and purchasers from the lessor was not involved, and therefore the principle of those eases is not directly applicable here. But even if it were we do not regard it sound.
Oil in the rock adheres to the real estate, and is a part thereof until brought to the surface, when it becomes personalty, just as *349a tree, or stone, co'al or fire clay is a part of the realty until severed, when it becomes personalty.
That which is a part of the land before severance 'belongs to the owner of the land after severance as well as before. The fact that oil and gas are vagrant and transitory in their nature does not prevent than from adhering to and becoming part of the land while passing from one tract to another, and while so in one tract they are a part of that tract and belong to the owner thereof until they escape from snch tract, and if brought to the surface before such escape, they become personal property belonging to the owner of the land.
It, therefore, irresistibly follows that the oil or gas taken from a well on a particular tract of land belongs to the owner of that tract even though the contract under which the well was drilled included other tracts of land. Because the contract of production may have included two or more tracts of land, such contract can not have the force of taking from the owner of one tract the oil or gas adhering to such tract for the time being, and bestowing it upon the owner of another tract where it may never have been. As oil and gas are migratory in character no one can tell from whence they came, or whither they are going, and they must, therefore, belong to him upon whose lands they are captured. hTo one else can have any ownership in them, and a man can bo awarded only that which he owns. Kelley v. Ohio Oil Co., 57 Ohio St., 317. In that Case this court said, on page 328:
“Petroleum oil is a mineral, and while in the earth, it is part of the realty, and should it move from place to place by percolation or otherwise, it forms part of that tract of land in which it tarries for the time being, and if it moves to the next adjoining tract, it becomes part and parcel of that' tract; and it forms part of some tract, until it reaches a well and. is raised to the surface, and then, for the first time, it becomes the subject of distinct ownership separate from the realty, and becomes personal property, the property of the person into whose well it came. And this is so whether the oil rnovesj percolates, or exists in pools or deposits. In either event, it is property of and belongs to the person who reaches it by means of a well, and severs it from the realty and converts it into personalty.”
The same rule applies to all property. Crops grown upon lands belong to the owner of the land, even though they may have been planted under a contract covering two or more tracts, unless the' contract expressly provides otherwise.
*350But it' is urged that the lessee having contracted to deal with but one man, can not he compelled to deal severally with many; and that his rights in this regard must he respected. True he contracted with one only as to two separate tracts of land, but-in the lease he agreed that his contract should extend to heirs and assigns, and as there may he many of these, it is more convenient for him to deal with the owners of the land severally than jointly with all the owners of both tracts. The words heirs and assigns in such cases mean the heirs and 'assigns as to each tract separately, rather than the heirs and assigns as to tooth jointly. This is for the benefit of both parties, and enables the lessee to sell the lease 'as to one tract and retain it as to the other, or to sell both to different parties.
While it is true that up to the time a well was completed the $150 rental was for both tracts, the last evtension expressly provides that: “When well is drilled to draw $150.” It may be that the payment of the rental of $150 for this one well would have had the effect to hold the lease on both tracts as between the original parties, or as to third parties in case the extension had been recorded; but be that as it m'a3, it is clear that the owner of the forty-acre tract upon which the well is situated is entitled under this last extension, to the rental of $150 each year for that well, and that, therefore, the judgments of the courts below are right, and are therefore
Affirmed.