Henry Gas Co. v. United States

• Decision Date: 03 October 1911
• Docket Number: 3,506.
• Citation: 191 F. 132
• Parties: HENRY GAS CO. v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

191 F. 132

HENRY GAS CO. v. UNITED STATES.

No. 3,506.

United States Court of Appeals, Eighth Circuit.

October 3, 1911

James A. Veasey (Veasey & Rowland, on the brief), for appellant.

William J. Gregg, U.S. Atty.

Before ADAMS and SMITH, Circuit Judges, and REED, District Judge.

REED District Judge.

Appeal from an order granting an interlocutory injunction restraining the appellant from drilling for or removing any natural gas or oil from certain lands described in the bill and from selling or exercising any control over said land.

The bill alleges, in substance, that by virtue of Act Cong. June 28, 1898, c. 517, 30 Stat. 495, and the acts amendatory thereof, and particularly Act July 1, 1902, c. 1375, 32 Stat 716, ratified by the Cherokee Nation August 7, 1902, the complainant assumed and undertook the duty of allotting in severalty to the heirs, members, and enrolled citizens of the Cherokee Nation or Tribe of Indians, the allotable lands belonging to said tribe; that the work of allotting said lands is still in progress, and by virtue of complainant's rights and duty as a sovereign, and governing power of said tribe of Indians and for the purpose of discharging its full duty and obligation to said tribe in relation to the allotment of its lands, it brings this bill in its own behalf and as guardian of the property of said Cherokee Tribe of Indians.

It is then alleged: That on June 14, 1906, there was presented to the Commission to the Five Civilized Tribes for enrollment under the provisions of section 2 of the act of Congress approved April 26, 1906 (Act April 26, 1906, c. 1876, 34 Stat.137), the name of Anna G. McNabb, a minor of Cherokee blood who was born August 9, 1903. That the enrollment of said minor was thereupon made, and on January 24, 1907, approved by the Secretary of the Interior, and her name placed opposite roll No. 2723 of the census roll of the new born members of said Cherokee Nation or Tribe of Indians. That on February 6, 1907, an application was made on behalf of said minor by Mary E. McNabb, her mother, 'for the following described lands' (describing the lands involved in this suit, being 50 acres in Washington county, Okl., formerly Indian Territory) as and for a part of her allotment in severalty of the land of the Cherokee Nation, which said selection was tentatively allowed in behalf of said minor; but that no certificate of allotment or patent was ever issued to her, and that said lands are a part of the public domain of said Cherokee Nation and subject to the control of the complainant in the manner provided by the several acts of Congress. That on May 20, 1910, one Sanford McNabb, representing himself to be the legal guardian of said minor, Anna G. McNabb, presented to the county court of Washington county, Okl., a petition praying for an order authorizing him as such guardian to sell at private sale the lands so selected as part of the allotment of said Anna G. McNabb. That said court entered an order authorizing said sale, and, pursuant to such order, the land was sold by said guardian to the defendant, to whom a deed was made, and the sale and deed afterwards approved by said court.

It is then alleged that said order, sale, and deed were and are void for want of jurisdiction of said county court to authorize the same; that the defendant has entered upon said premises, and is drilling an oil and gas well thereon preparatory to removing the oil and gas from said premises and appropriating the same to its own use, to the great damage and irreparable injury to the complainant and said Cherokee Tribe of Indians. A decree is prayed adjudging said guardian's deed to be void, and restraining the defendant from drilling for or removing any of the oil or gas from said premises, and from selling or otherwise exercising any control over the same.

A demurrer to the bill for want of equity, and lack of capacity of the United States to maintain the suit, was overruled.

The defendant then answered, averring the due enrollment of the minor, Anna G. McNabb, as a citizen and member of the Cherokee Nation, the allotment to her as such of said tract of land, the validity of the guardian's sale and deed, and that it is the full and absolute owner of said property. The answer also alleges that defendant has proposed to complainant to enter into a bond sufficient to protect the complainant and said Cherokee Nation to the extent of the amount it paid for the land, to wit, $4,250, and for such reasonable royalty as would be due the owner of the land during the pendency of the suit for the gas it takes therefrom, in the event that it shall be adjudged that said Anna G. McNabb was not entitled thereto; and it now renews said offer.

The proofs adduced upon the hearing of the application for the preliminary injunction show without dispute:

That Anna G. McNabb, an Indian girl of one-sixteenth Cherokee Indian blood, born August 9, 1903, was on June 14, 1906, enrolled as of March 4, 1906, as a citizen or member of the Cherokee Nation under the provisions of section 2 of the act of Congress, approved April 26, 1906 (34 Stat. 137, c. 1876), entitled: 'An act to provide for the final disposition of the affairs of the Five Civilized Tribes in the Indian Territory,' and for other purposes, which enrollment was duly approved by the Secretary of the Interior January 24, 1907. On February 6th following Mary E. McNabb, the mother of said minor, made formal application (which was accompanied with a certificate showing that said minor had been duly enrolled as a citizen of the Cherokee Nation) to the Commission to the Five Civilized Tribes for an allotment to said minor of the land in question as a part of the allotment in severalty to which she as such member was entitled, designating 20 acres of said land as a homestead. No certificate of the allotment of the tract was issued by the commission, and upon the application or the record thereof appear the words: 'Held pending Dept. instructions of February 21, 1907. ' On October 18, 1907, a contest of this allotment or selection of the land for Anna G. McNabb was filed before the commission by the father and natural guardian of Esther Miller, a minor. This contest was decided by the commission April 30, 1910, as follows:

'The acting commissioner renders his decision herein, holding that the land in controversy be and remain a portion of the allotment selection of Anna G. McNabb the minor contestee, subject to her final enrollment as a citizen of the Cherokee Nation under the act of Congress approved April 26, 1906.'

No appeal was taken from this decision, and on May 31, 1910, the case was closed, and the chief clerk of the Cherokee land office notified on June 21, 1910, of the proceedings, and that the case had been closed by the commission.

On May 23, 1910, the county court of Washington county, Okl., exercising probate jurisdiction, upon application of Sanford McNabb, the father and guardian of said minor Anna G. McNabb, ordered a sale of said premises, at which sale made pursuant thereto the defendant, Henry Gas Company, a corporation, purchased said premises for the sum of $4,250, which sale and deed were on June 20, 1910, reported to, and duly approved by, said county court. Afterwards the defendant entered upon said land and drilled a producing-gas well thereon preparatory to removing the gas therefrom. Within eight months prior to its purchase of the land the defendant drilled two wells within 200 feet of the premises, and others drilled nine other producing wells within a distance of 200 to 1,600 feet of said premises, the whole of an approximate daily capacity of more than 1,000,000,000 cubic feet of gas. That during said period of eight months approximately 10,000,000 cubic feet of gas per day was actually produced and sold from five of said wells; and at the time of the hearing approximately 25,000,000 cubic feet per day were actually produced and sold therefrom; between 10,000,000 and 15,000,000 cubic feet thereof being from the two wells so drilled by the defendant. That such wells drained from the gas deposits upon the land in question, and in time would completely drain all of such deposits therefrom unless offset wells are drilled upon the premises to prevent such drainage. That the gas field of which said tract is a part will be entirely drained of all of its gas deposits, of sufficient value for commercial use, within five to eight years from the date of the hearing of the application for the preliminary injunction.

Upon these facts the Circuit Court granted a preliminary injunction against the defendant as prayed in the bill; and the sole question for determination is, Was it rightly granted?

The granting of or refusal to grant a preliminary injunction rests in the sound judicial discretion of the court; but it is a cardinal principle of equity jurisprudence that it will not be granted unless the right to it is clear, the injury impending, and threatened so as to be averted only by the preventive process of injunction (Truly v. Wanzer et al., 5 How. 141, 142, 12 L.Ed. 88; St. Louis Street Flushing Machine Co. v. Sanitary Flushing Co., 161 F. 725-728, 88 C.C.A. 585), or the case is such that the status quo should be maintained until the final hearing (City of Newton v. Levis, 79 F. 715-718, 25 C.C.A. 161; Denver & R.G.R.R. Co. v. United States, 124 F. 157-161, 59 C.C.A. 579).

The act of Congress, approved July 1, 1902, entitled 'An act to provide for the allotment of the lands of the Cherokee Nation, and for other purposes' (Act July 1, 1902, c 1375, 32 Stat. 716), provides for the distribution of the tribal property of that nation equally among its members (except a portion thereof reserved for other purposes) and a dissolution of...