Commissioners of Land Office of State of Okl. v. United States

• Decision Date: 14 December 1920
• Docket Number: 5435.
• Citation: 270 F. 110
• Parties: COMMISSIONERS OF LAND OFFICE OF STATE OF OKLAHOMA et al. v. UNITED STATES et al.
• Court: U.S. Court of Appeals — Eighth Circuit

270 F. 110

COMMISSIONERS OF LAND OFFICE OF STATE OF OKLAHOMA et al. v. UNITED STATES et al.

No. 5435.

United States Court of Appeals, Eighth Circuit.

December 14, 1920

W. A Ledbetter and John H. Miley, both of Oklahoma City, Okl., (S P. Freeling, Atty. Gen., and H. L. Stuart, R. R. Bell, and E P. Ledbetter, all of Oklahoma City, Okl., on the brief), for appellants.

Frederick B. Owen, of Oklahoma City, Okl. (Henry E. Asp, Henry G Snyder, and Walter A. Lybrand, all of Oklahoma City, Okl., on the brief), for riparian owners, Edminston, Thomas, and Mullendore.

Paul Pinson, Sp. Asst. Gen. (Herbert M. Peck, U.S. Atty., of Oklahoma City, Okl., on the brief), for appellee United States.

Before SANBORN and CARLAND, Circuit Judges, and MUNGER, District judge.

SANBORN Circuit Judge.

Lot 7 in section 25, township 21 north of range 8 east of Indian meridian, and lot 11 in section 30, township 21 north of range 9 east of the Indian meridian, consist of an island in the Arkansas river above the mouth of Grand river, and lay north of the main channel of that river on June 5, 1872, when the United States by the act of Congress of that date conveyed and confirmed to the Osage Tribe of Indians its lands in what is now the state of Oklahoma, and bounded them on the south by 'the north line of the Creek country and the main channel of the Arkansas river for a southern and western boundary.' 17 Stat. 228, 229. These lots 7 and 11 were subsequently allotted to Larry Nolegs, a member of the Osage Tribe, in accordance with the provisions of the Osage Allotment Act of June 28, 1906 (34 Stat. Secs. 3, 4, pp. 542, 543 544), so that the United States thereby became the trustee of the oil and gas in the lands so granted to the Osage Tribe and the guardian of the allottee Nolegs and of his title to his allotment. As such trustee and guardian it brought this suit to quiet the title to the oil and gas in this island as trustee for the tribe and as trustee and guardian of Nolegs to quiet the title in the land in him, and to enjoin the defendants below, the appellants here, from interfering therewith. The court below granted the relief prayed for by the United States. The defendants who have appealed from its decree are the Commissioners of the Land Office of the State of Oklahoma, its Attorney General, and its lessee, who claim that the Arkansas river was and is navigable at the location of the island, and that the title to the bed of the river and the island vested in the state of Oklahoma when that state was admitted into the Union. The other appellants claim title to the island as grantees through mesne conveyances under the customary patents of the United States to the lands opposite the island on the south and west bank of the river.

This case and the case of Brewer-Elliott Oil & Gas Co. et al. v. United States et al., 270 F. 100, in which the opinion is filed herewith, were heard and decided below and in this court together upon all the arguments and evidence as well as the briefs in both cases. For the reasons stated in the case of Brewer-Elliott Oil & Gas Company the claim of the state of Oklahoma and its officers to any interest in or title to this island and to a reversal of the decree herein cannot be sustained, and as against them that decree must be affirmed on the authority of the decision in that case.

The other appellants are Thomas, Edminston, and Mullendore. Thomas and Edminston owned the lands on the south bank of the river opposite the island and claimed the island as an accretion to their lands. Mullendore claims under an oil lease from Thomas.

The counsel for these appellants write in their briefs that they 'complain only of that part of the court's findings of fact and judgment rendered thereon wherein the trial court found that the so-called island was included in the lands granted to the Osage Tribe by the act of June 5, 1872 (17 Stat. 228). This immediate finding was the result of the court's conclusion that the main channel of the Arkansas river was in 1872 south of the so-called island instead of north where admittedly it now is. They argue that the island was not included in the tract conveyed and confirmed to the Osage Tribe: (1) Because it was not specifically described by government lot, section, or township in the deed of the Cherokee Nation to the United States in trust for the Osage Tribe dated June 14, 1883, which was made in execution of the act of June 5, 1872, and of the treaties between the United States and the Cherokee Nation, and the United States and the Osage Tribe, but that deed conveys the lands by townships and fractional townships and recites 'the fractional townships being on the left bank of the Arkansas river'; (2) because no island was shown at the place of the island in question on the plat which accompanied the deed and was made a part thereof; and (3) because the deed specifies the number of acres conveyed by it, and this number is the number of acres in the townships and fractional townships specifically named therein, and does not include the number of acres in the island. But a careful review of the evidence leaves no doubt that in 1872, when the grant of that year was made to the Osage Tribe, there were two channels of the river, one on the north and one on the south of this island, and the channel on the south side was larger and deeper than that on the north side and was the main channel of the river. The act of Congress fixes the boundary at the place of the location of the island in question at 'the main channel of the Arkansas...