Cosmos Exploration Co. v. Gray Eagle Oil Co.

• Decision Date: 24 September 1900
• Court: U.S. District Court — Southern District of California
• Parties: COSMOS EXPLORATION CO. v. GRAY EAGLE OIL CO. et al. PACIFIC LAND & IMPROVEMENT CO. v. ELWOOD OIL CO. et al.

104 F. 20

COSMOS EXPLORATION CO. v. GRAY EAGLE OIL CO. et al.

PACIFIC LAND & IMPROVEMENT CO. v. ELWOOD OIL CO. et al.

United States Circuit Court, S.D. California.

September 24, 1900

Jefferson Chandler, Shirley C. Ward, J. W. Swanwick, and T. C. Van Ness, for complainants.

C Linkenbach, J. S. Chapman, Everts & Ewing, Bicknell, Gibson &amp Trask, Flint & Barker, Geo. W. Baker, and Frank H. Short, for defendants.

ROSS Circuit Judge.

These cases were heard together, and may be so considered and determined, as the principal questions involved are common to them both. In that of the Cosmos Exploration Company the lands involved constitute the fractional W. 1/2 of section 30, in township 28 S., range 28 E., Mt. Diablo base and meridian; and the E. 1/2 of the S.W. 1/4 of section 4, in township 29 S., range 28 E., same base and meridian constitutes the property in controversy in the case brought by the Pacific Land & Improvement Company. Each is a suit in equity; in the one first mentioned the complainant claiming to be the equitable owner of an undivided three-fourths of the lands there in question, and in the other the complainant claiming to be the equitable owner of the whole of the lands in controversy. In each the complainant seeks a decree quieting the alleged title as against the defendants to the suit. In each the defendants to the bills are alleged to be in the possession of the property in controversy, and to be extracting therefrom large quantities of oil, and each bill includes a prayer for an injunction restraining the defendants thereto from extracting any of the oil in the land, and also for the appointment of a receiver to take possession of the property and conserve it pending the litigation. Upon the filing of the respective bills, orders were made on the defendants to show cause why the preliminary relief asked should not be granted. The defendants appeared by counsel, and to each bill demurrers were filed, as also verified answers, and upon the orders to show cause a large number of affidavits were filed by and on behalf of the respective parties. The demurrers and orders to show cause came on for hearing, and were heard together; the verified answers being also used as affidavits. In each case the title claimed by the complainant is alleged to have been acquired by virtue of a selection made by its predecessor in interest under and by virtue of the act of congress of June 4, 1897, entitled 'An act making appropriations for sundry civil expenses of the government for the fiscal year ending June thirtieth, eighteen hundred and ninety-eight, and for other purposes,' which contains, among other things, various provisions in respect to forest reservations, commencing with the declaration that 'no public forest reservation shall be established, except to improve and protect the forest within the reservation or for the purpose of securing favorable conditions of water flows and to furnish a continuous supply of timber for the use and necessities of the citizens of the United States; but it is not the purpose or intent of these provisions, or of the act providing for such reservations, to authorize the inclusion therein of lands more valuable for the mineral therein or for agricultural purposes than for forest purposes'; and including this provision:

'That in cases in which a tract covered by an unperfected bona fide claim, or by a patent, is included within the limits of a public forest reservation, the settler or owner thereof may, if he desires to do so, relinquish the tract of the government and may select in lieu thereof a tract of vacant land, open to settlement, not exceeding in area the tract covered by his claim or patent; and no charge shall be made in such cases for making the entry of record or issuing the patent to cover the tract selected: provided, further, that in cases of unperfected claims the requirements of the laws respecting settlement, residence, improvements and so forth are complied with on the new claims, credit being allowed for the time spent on the relinquished claims.' 30 Stat. 11, 35, 36.

In the suit brought by the Cosmos Exploration Company the bill alleges that on the 16th day of November, 1899, one C. W Clarke was the owner in fee simple, free of any incumbrance, of a tract of 165.35 acres of nonmineral land situated within the limits of a public forest reservation, for which a patent had been issued to him by the United States; that on the 9th (evidently intended to be the 8th) day of December, 1899, lots 1 and 2 of the S.W. 1/4 of section 30, in township 28 S., range 28 E., Mt. Diablo base and meridian, containing 165.35 acres of land and no more, were, and for more than one year continuously theretofore had been, a tract of surveyed, unappropriated, and vacant public land of the United States, open to settlement, and returned and characterized upon the official records of the United States as 'agricultural land,' and did not then contain any known mines, known salines, or known minerals of any kind, nor had any petroleum or other mineral substances of any kind ever been discovered within the limits thereof; that, on the said 16th day of November, Clarke, being desirous of availing himself of the above-mentioned act of congress, relinquished to the United States the tract for which he held its patent by conveying the same by deed to the United States, and recorded the deed in the office of the county recorder of the county in which the land was situated, and on the 8th day of December, 1899, delivered to the register and receiver of the United States land office at Visalia, Cal., his said deed, indorsed as so recorded, together with a full and correct abstract of his title to the relinquished tract, duly certified by the county recorder of the county in which the land was situated, showing him to be the owner thereof by title in fee simple, free of incumbrance, at the time of such relinquishment, and also a nonmineral affidavit, together with his selection of lots 1 and 2 above described in lieu thereof; that the register and receiver of the local land officer thereupon, to wit, on the 8th day of December, 1899, duly accepted, received, and filed the deed, abstract of title, nonmineral affidavit, and selection of the said Clarke, and duly entered such selection upon the official records of the office, and that the register did then and there certify that the land so selected was free from conflict, and that there was no adverse filing, entry, or claim thereto; that on the 16th day of November, 1899, Clarke was the owner in fee simple, free of any incumbrance, of a tract of 165.17 acres of nonmineral land within the limits of a public forest reservation, for which the United States had issued to him its patent; that on the 8th day of December, 1899, lots 1 and 2 of the N.W. 1/4 of said section 30, containing 165.17 acres of land and no more, were, and for more than one year continuously theretofore had been, a tract of surveyed, unappropriated, and vacant public land of the United States, open to settlement, and returned and characterized upon the official records of the United States as agricultural land, and did not then contain any known mines, known salines, or known minerals of any kind, nor had any petroleum or other mineral substances of any kind ever been discovered within the limits thereof; that on the said 16th day of November the said Clarke, desiring to avail himself of the provisions of the act of congress of June 4, 1897, relinquished all of the 165.17-acre tract so owned by him to the United States, free of incumbrance, by deed of conveyance, which deed he recorded in the office of the county recorder of the county in which the land was situated, and on the 8th day of December, 1899, delivered to the register and receiver of the land office at Visalia, Cal., the said deed, indorsed as so recorded, together with a nonmineral affidavit, and a full and correct abstract of his title to the relinquished tract, duly certified as such by the county recorder of the county in which the tract was situated, showing him to be the owner thereof in fee, free of incumbrance, together with his selection of lots 1 and 2 of the N.W. 1/4 of said section 30, and that thereupon, to wit, on the 8th day of December, 1899, the register and receiver of the local land office duly accepted, received, and filed the deed, abstract of title, nonmineral affidavit, and selection of the said Clarke, and duly entered such selection upon the official records of the office, and that the register did then and there certify that the lands so selected, containing 165.17 acres, were free from conflict, and that there was no adverse filing, entry, or claim thereto; that the tracts so selected by the said Clarke are situated in Kern county, Cal., and within the district of lands subject to sale and disposition by the United States at its Visalia land office, and are contiguous, and constitute one body of land, and together are known as the fractional W. 1/2 of said section 30; that on the 13th day of January, 1900, the said Clarke, believing there might be a possible defect in the title to the forest reserve lands relinquished by him to the United States, and used as a basis for the selection of the fractional W. 1/2 of said section 30, filed in the land office at Visalia two amended selections, under the act of June 4, 1897, in one of which he selected lots 1 and 2 of the N.W. 1/4 of said section 30, containing 165.17 acres, and in the other lots 1 and 2 of the S.W. 1/4 of the same section, containing 165.35 acres, in which amended selections he substituted instead of the lands formerly designated as a basis for such selections other nonmineral lands lying within a public forest reservation of the...