United States v. Fixico, 2038

Citation115 F.2d 389
Decision Date12 November 1940
Docket Number2039,No. 2038,2046.,2045,2038
PartiesUNITED STATES v. FIXICO et al. SAME v. LUCAS et al. SAME v. RICE, Judge (two cases).
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

COPYRIGHT MATERIAL OMITTED

Charles N. Champion, Asst. U. S. Atty., of Muskogee, Okl., and Marvin J. Sonosky, Atty., Department of Justice, of Washington, D. C. (John J. O'Brien, Acting Asst. Atty. Gen., Cleon A. Summers, U. S. Atty., of Muskogee, Okl., and Charles R. Denny, John F. Cotter, Frank J. Dugan, and Roger P. Marquis, Attys., Department of Justice, all of Washington, D. C., on the brief), for appellant-petitioner.

W. W. Pryor, Hugh M. Sandlin, Don Wilbanks, and Marvin Balch, all of Holdenville, Okl., and Omar M. Hudson, of Stigler, Okl., for appellees Amon Fixico, Frank Lucas and Betsy Lucas.

I. L. Lockewitz, of Tulsa, Okl. (J. C. Denton, R. H. Wills, J. H. Crocker, and J. P. Greve, all of Tulsa, Okl., on the brief), for appellee Mid-Continent Petroleum Corporation.

James B. Diggs and Redmond S. Cole, both of Tulsa, Okl., for appellee Gulf Oil Corporation.

Chas. L. Orr and Angus M. Woodford, both of Holdenville, Okl., for appellee Boettcher Oil & Gas Co.

Julian B. Fite, R. M. Mountcastle, and Bower Broaddus, all of Muskogee, Okl., for respondent.

Orel Busby, L. H. Harrell, and A. W. Trice, all of Ada, Okl., for Carter Oil Co. and Continental Oil Co.

Before PHILLIPS, BRATTON, and MURRAH, Circuit Judges.

BRATTON, Circuit Judge.

The questions presented in these four cases are (1) whether an action to recover damages for injury by pollution to restricted land in Oklahoma allotted to a member of the Five Civilized Tribes of Indians may be removed from the state court to the United States court under section 3 of the Act of April 12, 1926, 44 Stat. 239, 240, and (2) whether an order of the United States court remanding such a case may be re-examined in this court, either by appeal or mandamus.

Amon Fixico, an enrolled full-blood Creek Indian, instituted No. 2038 in the District Court of Hughes County, Oklahoma, to recover from three oil companies damages for permanent injury by pollution to a tract of land which had been allotted to him and was restricted against alienation. The defendants caused written notice of the pendency of the suit to be served upon the Superintendent of the Five Civilized Tribes. The United States filed in the state court its petition for removal of the action to the United States court for Eastern Oklahoma, and the court entered an order of removal. Plaintiff filed in the United States court a motion to remand the action on the ground that it was not removable under section 3, supra. The court entered an order remanding the case, from which the United States appealed. The United States subsequently instituted No. 2045 in this court, and seeks by mandamus to compel the trial court to recall its order of remand in No. 2038, and to retain jurisdiction of the cause.

Betsy Lucas, an enrolled full-blood Choctaw Indian, and Frank Lucas, her husband, likewise a full-blood Choctaw Indian, instituted No. 2039 in the District Court of Haskell County, Oklahoma, to recover from the Town of Stigler compensatory and exemplary damages for injury by pollution to a tract of land which had been allotted to her and was restricted against alienation; and they also sought a mandatory injunction requiring and compelling the town to change the place or manner of the discharge of its sewage so that the pollution would be discontinued. Plaintiffs caused written notice of the pendency of the suit to be served upon the Superintendent of the Five Civilized Tribes. The United States filed in the state court a petition for removal of the action to the United States court for Eastern Oklahoma, and an order of removal was entered. The defendant filed in the United States court a motion to remand the cause on the ground that it was not removable under section 3, supra. The court entered an order of remand, and the United States appealed from it. The United States thereafter filed No. 2046 in this court, and seeks by mandamus to compel the trial court to recall its order of remand in No. 2039, and to retain jurisdiction of the cause.

Section 2 of the Act of April 12, 1926, supra, relates exclusively to limitations, and applies only to suits in which the issues involve title to land. It has no application to other suits. Board of Commissioners of Tulsa County, Okl. v. United States, 10 Cir., 94 F.2d 450; McGugin v. United States, 10 Cir., 109 F.2d 94.

Section 3 is substantially broader in scope. It provides, among other things, that where notice is served upon the Superintendent of the Five Civilized Tribes, the United States may, in the manner there outlined, remove from the state court in Oklahoma to the United States court any suit to which a restricted member of the Five Civilized Tribes is a party, and claims or is entitled to claim title to or an interest in lands allotted to a citizen of the Five Civilized Tribes, or the proceeds, issues, rents, and profits derived therefrom. It is not confined to cases in which title to land is involved. It extends to any case in which any other interest in restricted land is in issue. It must be presumed that the Congress chose that broad language with deliberation and studied purpose. And any cause coming fairly within the reach of the section may be removed under its provisions. Caesar v. Burgess, 10 Cir., 103 F. 2d 503.

In one of the cases which was removed plaintiff seeks past and future damages for permanent injury to his restricted allotted land by pollution arising out of the operation of oil wells, it being alleged, among other things, that the fertility of the soil has been permanently impaired; and in the other case plaintiffs seek damage for the depositing of sewage at such place and in such manner that it ran and runs upon and across the restricted allotted land, it being alleged, among other things, that the land has become impregnated with the sewage, that a water course traversing the land has become infected and polluted so that it will poison livestock drinking the water, that a well on the land has become polluted, that if a new well were dug it would be likewise polluted, that offensive, noxious and poisonous gases are generated, that a stench arises which renders their home unfit for habitation, and that such conditions prevent the use of the land as a farm. Ordinarily in a case where the source or cause of the pollution is not abatable the measure of recovery is the difference in value of the land immediately before and immediately after the injury occurs. Sinclair Oil & Gas Co. v. Allen, 143 Okl. 290, 288 P. 981; Mid-Continent Petroleum Corporation v. Fisher, 183 Okl. 638, 84 P.2d 22. And where the injury is permanent in nature, plaintiff may recover judgment for such damages as he has already suffered, and in addition such further damages as he will sustain in the future. Comar Oil Co. v. Hackney, 119 Okl. 285, 250 P. 93; H. F. Wilcox Oil & Gas Co. v. Murphy, 186 Okl. 188, 97 P.2d 84. The rendition and discharge of such a judgment creates or recognizes the existence of a right somewhat difficult to define with precision but which is measurably akin to that of an easement. Luama v. Bunker Hill & Sullivan Mining & Concentrating Co., 9 Cir., 41 F.2d 358. And in Oklahoma an easement granting certain rights over land is an interest in the land. Missouri State Life Ins. Co. v. Whisman, 181 Okl. 168, 73 P.2d 130.

It seems manifest that a case for the recovery of damages for permanent injury by pollution to restricted land of a member of the Five Civilized Tribes involves a diminution of estate in the land — a lessening of the estate in the restricted res. It involves an alienation pro tanto of the estate in the restricted land. And that is such an interest as to bring the case fairly within the broad scope of section 3, and to make it subject to removal under the statute.

But both of the cases which were removed have been remanded to the state court. Prior to the enactment of the Judiciary Act of March 3, 1875, 18 Stat. 470, an appeal or writ of error did not lie to review an order of remand for the reason that such an order was not a final judgment or decree. Knickerbocker Ins. Co. v. Comstock, 16 Wall. 258, 21...

To continue reading

Request your trial
17 cases
  • State of Utah, By and Through Division of State Lands v. Kleppe
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 6 Diciembre 1978
    ...U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973); Missouri, K & T Ry. Co. v. Jackson, 174 F.2d 297 (10th Cir. 1949); United States v. Fixico, 115 F.2d 389 (10th Cir. 1940); Sutherland Statutory Construction, 4th Ed., Vol. 2A § 51.05. The latter authority summarized the general-special acts Ge......
  • Fulmer v. United States
    • United States
    • U.S. District Court — Northern District of Alabama
    • 7 Marzo 1949
    ...310 U.S. 534, 544, 60 S.Ct. 1059, 84 L.Ed. 1345; Townsend v. Little, 109 U.S. 504, 512, 3 S.Ct. 357, 27 L. Ed. 1012; United States v. Fixico, 10 Cir., 115 F.2d 389, 393; Iriarte et al. v. United States, 1 Cir., 157 F.2d 105, 108, 167 A.L.R. 494; Cook County Nat. Bank v. United States, 107 U......
  • United States v. Anglin & Stevenson
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 6 Octubre 1944
    ...States courts. United States v. House, 10 Cir., 144 F.2d 555; Town of Okemah v. United States, 10 Cir., 140 F.2d 963; United States v. Fixico, 10 Cir., 115 F.2d 389; Caesar v. Burgess, 10 Cir., 103 F.2d 503; Fish v. Kennamer, 10 Cir., 37 F.2d 243. It is also the manifest intent of the Act t......
  • United States v. Rice
    • United States
    • United States Supreme Court
    • 22 Abril 1946
    ...v. Bryant, supra, 299 U.S. 380, 381, 57 S.Ct. 276, 277, 81 L.Ed. 289. It was so held with respect to the Act of 1926 in United States v. Fixico, 10 Cir., 115 F.2d 389. Nothing in the Act of 1926 purports to impair or restrict the application of § 2 of the 1887 Act, thus construed, to orders......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT