Cosmos Exploration Co. v. Gray Eagle Oil Co.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation112 F. 4
Docket Number671,672.
Decision Date15 November 1901

[Copyrighted Material Omitted]

The bill of complaint in the Pacific Land & Improvement Company against the Elwood Oil Company alleges, in substance: That the selection by complainant's predecessor in interest one J. R. Johnston, on the 23d day of December, 1899,under 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 30, 1898, and for other purposes,' of the E. 1/2 of the S.W. 1/4 section 4 in township 29 S., range 38 E., M.D.B. & M., containing 80 acres of land, and no more, in lieu of a tract of 80 acres of nonmineral land included within the limits of a public forest reservation, for which the United States has issued to him a patent, and which the said Johnston on December 20, 1899 under and pursuant to the provisions of said act of June 4, 1897, relinquished to the United States by deed of conveyance recorded in the office of the county recorder of the county in which said tract is situated, which Johnston delivered at the time of his lieu selection, on the 23d day of December, 1899, to the register and receiver of the land office at Visalia, Cal., within which the selected land is situate, which deed, indorsed as recorded as aforesaid, the said Johnston at the said time filed in said local land office, together with 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 is situated, showing him to be the owner thereof in fee, free from any incumbrance, at the time of such relinquishment, together with his nonmineral affidavit, and together with his selection of the E. 1/2 of the S.W. 1/4 of said section 4 in lieu of the tract relinquished. That on the said 23d day of December, 1899, said register and receiver duly accepted and filed said deed, abstract of title, nonmineral affidavit, and selection of the said Johnston, and duly entered such selection upon the official records of his office. That the register did then and there certify that the tract so selected by the said Johnston was free from conflict; that there was no adverse filing, entry, or claim thereto; that the selected lands were, at the time of selection, unappropriated, vacant public lands of the United States, open to settlement, and returned by the surveyor general as agricultural in character; that such lands, when selected, did not contain any known minerals or known petroleum or known mineral oils; that no mineral, petroleum, or known mineral oil, or mineral substance of any kind, had ever been discovered within the limits thereof. That on April 11, 1900, Johnston conveyed the tract so selected, and all his right, title, and interest therein, to the complainant, who has ever since been the owner thereof. That the defendants based their claim to the tract in controversy upon a certain pretended placer mining location covering the S.W. 1/4 of said section 4, alleged to have been made on June 11, 1899, under the mining laws of the United States, by eight named persons, whose interests the defendants claimed to have acquired by mesne conveyances. That said location was void for the reason that no discovery of oil or other mineral was made within its limits until after the selection by said Johnston as aforesaid. That, after the lands in controversy were selected by said Johnston, certain of the defendants filed in the local land office at Visalia a written, verified protest against such selection, wherein it was alleged that said lands were not subject to selection under said act, for the reason that the same was mineral land, and was included within the boundaries of a valid placer location. That said protest prayed that the commissioner of the general land office order a hearing to determine the mineral character of said lands, and that the selection thereof made by said Johnston be rejected. That said protest is pending before the commissioner of the general land office. That the same is insufficient to justify a hearing being ordered by the land department to determine the character of said land, or to change its classification as fixed by the report of the surveyor general, for the reason that the same does not show that there was any known mine or any known salines or any known or existing petroleum wells or known petroleum deposits on the selected land at the time of its selection, showing the same to be more valuable for mining than agricultural or other purposes. That notwithstanding Johnston acquired the complete equitable title to the land in controversy by his selection thereof, and notwithstanding that he was entitled to the complete and uninterrupted enjoyment and possession of the same, the defendants, against the will of the said Johnston, knowing that said land had been selected by him under the act of congress aforesaid, and knowing his rights in the premises, without any right in themselves, or any of them, did, on or about the 6th day of January, 1900, by themselves and their employes, without right, and wrongfully and unlawfully, and without the knowledge or consent of said Johnston, and in disregard of his rights, enter upon and became possessed of the lands in question, and erected a derrick and other machinery thereon, and proceeded to excavate the soil thereof and to bore a well therein, seeking for petroleum oil therein, for the purpose of taking the same, if found, to their own use, and removing the same. That afterward, about the last of January, 1900, the defendants found in said well petroleum oil in profitable quantities, and that they are engaged in wrongfully and unlawfully pumping large quantities of oil from said well, and removing the same from said lands, and selling and disposing of and marketing the same, and appropriating the proceeds thereof to their own use, and will continue to do so, to the great waste and irreparable injury of said premises, unless restrained therefrom by order of injunction, and that, unless restrained by order of the court, the defendants will bore other wells upon said premises, and, if successful in obtaining petroleum therein, will take such petroleum therefrom and market the same for their own use and benefit, and that complainant has no complete or adequate legal remedy against the wrongs complained of. The prayer of the bill is for a temporary injunction, restraining the defendants from further removing of oil therefrom, and that upon the final hearing such injunction be made perpetual. It also asks a decree adjudging that complainant has the full, complete, and equitable title to the premises; that the adverse claims of the defendants thereto are wholly without right and unfounded; that a receiver be appointed to take possession of the property, and preserve the same and the products thereof until the further order of the court; and for such other relief as may be proper in the premises. The act of congress of June 4, 1897, before referred to, contains, among other things, the following provisions: '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 to 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. 36. To the bill of complaint the defendants interposed a demurrer upon the grounds: '(1) That enough does not appear upon the face of the bill to show this court's jurisdiction of the subject-matter of the suit; (2) that complainant has not, by its said bill, stated any cause entitling it to any relief against the defendants, or either of them; (3) that the said bill is altogether multifarious; (4) that it appeareth by the plaintiff's own showing, by the said bill, that it is not entitled to the relief prayed by the bill against these defendants, or either or of any of them, nor to any relief against these defendants, or either of them or any of them,'-- and prays the judgment of the court whether they, or either of them, should be compelled to make any answer to the said bill. (C.C.) 104 F. 20.

Shirley C. Ward, Jefferson Chandler, and J. W. Swanwick (John H. Mitchell, John M. Thurston, and T. C. Van Ness, of counsel), for appellants.

Frank H. Short, J. S. Chapman, and C. Linkenbach (George W. Baker, of counsel), for appellees.

Before GILBERT and MORROW, Circuit Judges, and HAWLEY, District Judge.

HAWLEY District Judge, after stating the foregoing facts, .

The legal questions involved in these cases on appeal are identical. The facts are substantially the same. There is no difference between them, so far as the demurrer to the bill is concerned, except in two particulars. The demurrer in the Pacific Land & Improvement case makes as one of its objections to the bill that it is multifarious. No such objection is urged against the bill in the Cosmos Exploration case. In the Pacific Land & Improvement case there was no amended application made in the land office. It stands upon the single application made on the 23d day of December, 1899. Following...

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