El Dora Oil Co. v. United States

• Decision Date: 04 December 1915
• Docket Number: 2660.
• Citation: El Dora Oil Co. v. United States, 229 F. 946 (9th Cir. 1915)
• Parties: EL DORA OIL CO. et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

229 F. 946

EL DORA OIL CO. et al. v. UNITED STATES.

No. 2660.

United States Court of Appeals, Ninth Circuit.

December 4, 1915

The United States, the appellee herein, was the plaintiff in a suit in the court below, the purpose of which was to stay waste of oil on a certain quarter section of government land to obtain an accounting for oil theretofore removed from said land, to enjoin further waste, and for the protection of said property to secure the appointment of a receiver, and to obtain a decree that the title to said property is in the United States. The complaint alleged that the value of the land involved was $1,000,000; that on September 14, 1908, the land was withdrawn by the Secretary of the Interior from settlement, entry, and purchase under the nonmineral land laws of the United States; that on June 9, 1909, it was duly classified by the Secretary of the Interior as oil-bearing mineral land; that on September 27, 1909, the President acting by and through the Secretary of the Interior, and under the authority legally vested in him, duly withdrew and reserved said land, together with other contiguous public land, from mineral exploration, and from all forms of location, settlement, selection, filing, entry or disposal under any of the public land laws of the United States; that since said date said land has not been subject to exploration for minerals, or to the initiation of any right under any of the public land laws of the United States; that on July 2, 1910, the President, acting under the authority legally vested in him, and especially by virtue of the provisions of the act of Congress of June 25, 1910, entitled 'An act to authorize the President of the United States to make withdrawal of public lands in certain cases,' duly ratified, affirmed, and continued in force and effect the order of withdrawal of September 27, 1909, and further withdrew and reserved said land from all forms of location, settlement, selection, filing, entry, or disposal under the mineral or nonmineral land laws of the United States, subject only to the provisions of said act of Congress; that subsequent to January 1, 1910, the defendants entered upon the said land and pretended to acquire and assert mineral rights therein, and have from time to time and are now committing trespass and waste thereon; that the defendant the Midway Oil Company wrongfully and unlawfully entered on the land, and thereafter drilled and caused to be drilled an oil well, and extracted from the land and appropriated to its use a large quantity of petroleum and gas; that subsequent to July 4, 1910, the defendant El Dora Oil Company and other defendants entered on said land and thereafter drilled oil wells and extracted from the land and appropriated to their use large quantities of petroleum and gas. Similar allegations are made as to other defendants, and the complaint alleged that the defendants, in disregard of the withdrawal of September 27, 1909, attempted to make mining locations on said land, but that no work of exploration or development for the discovery of petroleum, mineral oil, or gas, or other mineral, was ever commenced or prosecuted by any of the defendants on said land prior to July 4, 1910, and that no discovery of any minerals was made by any of the defendants on said land prior to October 10, 1910. The bill further alleged that, unless restrained therefrom, the defendants will continue to hold possession of the land and will drill oil wells thereupon, and extract petroleum or mineral oil and gas therefrom, and otherwise commit trespass and waste thereupon, to the great and irreparable injury of the plaintiff.

The defendants moved to dismiss the complaint for insufficiency of facts to constitute a cause of action in equity against them, and on the ground that the withdrawal of the land on September 27, 1909, was unconstitutional and void, and of no force and effect, and that no withdrawal of mineral in said land had been made. The motion was overruled, a receiver was appointed to take possession of the property, and the defendants were enjoined from removing oil or gas from the land, and from further producing oil from said land pending the suit. From that order the defendants have appealed, and among other assignments of error they assign that the court below erred in making the order in this: That the court had no jurisdiction to make the same. It is upon that assignment alone that the defendants rely in presenting their case upon the appeal.

George E. Whitaker and E. L. Foster, both of Bakersfield, Cal., and A. L. Weil, of San Francisco, Cal., for appellants.

T. W. Gregory, Atty. Gen., and E. J. Justice, Special Asst. Atty. Gen., for the United States.

Before GILBERT and ROSS, Circuit Judges, and RUDKIN, District Judge.

GILBERT Circuit Judge (after stating the facts as above).

It is contended that upon the facts shown on the face of the bill the plaintiff has an adequate remedy at law in ejectment, and it is also urged that where, as here, a bill alleges that the defendant is in possession, equity has no jurisdiction of an action to recover possession, or to remove a cloud, or to quiet title, even though other relief be asked.

As to the suggestion that there is an adequate remedy at law, it is to be said that the defendants failed in the court below, by motion, plea, or otherwise, to raise that objection to the jurisdiction in equity, and therefore they have waived the same. Southern Pac. R. Co. v. United States, 133 F. 651, 66 C.C.A. 581; McCloskey v. Pacific Coast Co., 160 F. 794, 87 C.C.A. 568, 22 L.R.A. (N.S.) 673. But, even if timely objection had been made on that ground, we are of the opinion that the court below had jurisdiction of the suit, for the reason that the essential and primary purpose of the same is to restrain waste, which, if continued, will work irreparable injury to the property in controversy. Said the court in Wood v. Braxton (C.C.) 54 F. 1005:

'The jurisdiction of courts of equity by way of injunction to restrain waste, to prevent the cutting of timber, and the mining of minerals, is one of comparatively recent origin; but it is now fully recognized and well established in this country, as well as in England. * * * If the nature of the injury complained of goes to the substance of the estate, thereby producing irreparable mischief, equity will interfere in limine, and not require the party to resort to an action at law, and this independent of the question of the insolvency of the defendant.'

In Peck v. Ayers & Lord Tie Co., 116 F. 273, 53 C.C.A. 551, a case in which neither party to the suit was in possession of the land in controversy at the time of the commencement of the suit, the Circuit Court of Appeals for the Sixth Circuit, while it was of the opinion that the jurisdiction of the Circuit Court could not have been sustained upon the bill regarded solely as one for quieting title, said:

'But we think the bill could be properly entertained as one for restraining the waste and destruction of property, and incidentally for an accounting for waste already committed. For such a purpose it is not necessary that the plaintiff should be in possession. Indeed, the jurisdiction was originally exercised in cases where the defendant was in possession as tenant for years, as trustee, or as owner of a life or other limited

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