United States v. Mullendore, 1046.

• Citation: 74 F.2d 286
• Decision Date: 30 November 1934
• Docket Number: No. 1046.,1046.
• Parties: UNITED STATES v. MULLENDORE et al.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

74 F.2d 286 (1934)

UNITED STATES v. MULLENDORE et al.

No. 1046.

Circuit Court of Appeals, Tenth Circuit.

November 30, 1934.

Chester A. Brewer, of Tulsa, Okl. (C. E. Bailey, U. S. Atty., of Tulsa, Okl., and Louis N. Stivers, Osage Tribal Atty., of Pawhuska, Okl., on the brief), for the United States.

John T. Craig, of Pawhuska, Okl. (Frank T. McCoy and John R. Pearson, both of Pawhuska, Okl., on the brief), for appellees.

Before LEWIS, McDERMOTT, and BRATTON, Circuit Judges.

BRATTON, Circuit Judge.

The United States instituted this action in equity on behalf of Stephen J. Tucker, Jr., a member of the Osage Tribe of Indians, twenty-six years of age, having one-eighth degree of Indian blood and without a certificate of competency, against E. C. Mullendore, Sr., E. C. Mullendore, Jr., and Mullendore Ranch Company, to recover the reasonable value of the use of certain land for grazing purposes during the years 1930, 1931, and 1932 and to enjoin the defendants from further using it for that purpose.

The defendants denied liability and alleged by cross-bill that Tucker caused a fire on his land and negligently permitted it to escape therefrom, cross to defendants' premises, and destroy hay, grass, and posts worth $160. Recovery for that was sought.

The stipulated facts are: E. C. Mullendore, Jr., owned more than 3,000 acres of land situated in Osage county, Okl. It was fenced as a pasture for grazing cattle. Tucker owned 480 acres within the pasture not separated by fence from the other land. It was purchased from surplus funds. The deeds conveying it to him each contained a provision that it should not be alienated without the consent of the Secretary of the Interior. During the years in question, Mullendore grazed cattle on the pasture, but not more than his own grass and water would support. Due to the fact that the Tucker land was not fenced separately, the cattle wandered upon it and grazed thereon, but Mullendore neither drove nor held them there. And he did not assert possession of it or interfere in any manner with the right or privilege of the Secretary of the Interior or Tucker to fence, control, or use it.

The case was voluntarily dismissed as to E. C. Mullendore, Sr., and Mullendore Ranch Company, and the court dismissed both the bill and cross-bill. The United States and E. C. Mullendore, Jr., appealed from the respective parts of the decree adverse to them, but Mullendore's appeal was subsequently dismissed. 69 F.(2d) 1013.

The Act of Congress approved March 3, 1921 (41 Stat. 1249), conferred citizenship upon all members of the Osage Tribe of Indians, removed restrictions upon alienation of the allotted lands of adult members of less than one-half Indian blood, and authorized quarterly payments to each adult member having a certificate of competency of his pro rata share of tribal funds. It further authorized quarterly payments of $1,000 to adult members not having certificates of competency. The remainder of their tribal income, called surplus funds, remains in trust under the control of the Secretary of the Interior. Work v. U. S. ex rel. Lynn, 266 U. S. 161, 45 S. Ct. 39, 69 L. Ed. 223. The statute was amended by the Act of February 27, 1925 (43 Stat. 1008 25 USCA § 331 note), but the amendment has no material bearing here. The land owned by Tucker was purchased with surplus funds upon authorization of the Secretary. It is conceded by the parties that the provision contained in each of the deeds of conveyance to him is valid and that the land is inalienable except with the sanction of the Secretary. See Sunderland v. United States, 266 U. S. 226, 45 S. Ct. 64, 69 L. Ed. 259.

Section 9040, Oklahoma Statutes 1931, applies to districts composed of two or more sections of land, two-thirds of which is unsuitable for cultivation and is being used for grazing purposes. The pertinent part provides:

"If the owner or lessee of any such grazing district encloses therein the lands of another, which lands are not being used for agricultural purposes, neither said owner or lessee or the owner or the lessee of such lands so enclosed, shall be liable in any sum for permitting their respective stock, which are being pastured on their said lands, to stray on any of the lands in said grazing district; provided, that no such owner or lessee who is grazing stock at large in said district, shall graze therein more stock than the water and grass of his own lands will support."

By express provision the statute excludes from its operation forty named counties within the state and therefore applies exclusively to the remaining thirty-seven. The parties stipulated that the Mullendore land was of the size, class, and kind described.

It is said at the outset that, in the absence of an express understanding or agreement, one using the property of another in Oklahoma is impliedly liable for the value of that use and that a lease effects alienation. Section 10915, Oklahoma...