Evans v. Durango Land & Coal Co.

• Decision Date: 12 April 1897
• Docket Number: 850.
• Citation: 80 F. 433
• Parties: EVANS et al. v. DURANGO LAND & COAL CO. et al.
• Court: U.S. Court of Appeals — Eighth Circuit

80 F. 433

EVANS et al. v. DURANGO LAND & COAL CO. et al.

No. 850.

United States Court of Appeals, Eighth Circuit.

April 12, 1897

This was a suit at law brought in the district court of Gunnison county, Colorado, by Roger C. Evans, R. G. Carlisle, John Tetard, and Sprigg Shackleford, the plaintiffs in error against the Durango Land & Coal Company, John A. Porter William A. Bell, James H. Barlow, and William J. Palmer, the defendants in error, to recover the value of certain coal alleged to have been mined and removed from certain lands situated in Gunnison county, Colorado. The suit presents another phase of the controversy which was considered in the case of Coal Co. v. Evans, 80 F. 425. In the trial court the case was tried and decided on demurrer to the complaint, which was in the following form: 'Plaintiffs complaining of the defendants, allege: First. That Roger C Evans, one of the plaintiffs herein, who was at the time a citizen of the United States and in every respect duly qualified so to do, filed in the United States land office, at Leadville, Colorado, on October 2, 1880, his certain coal declaratory statement, number 44, claiming the east half of the northwest quarter of section ten, and the north half of the northeast quarter of section four, all in township fourteen south, of range eighty-six west of the sixth principal meridian, under the provisions of the statutes of the United States relating to the sale and disposition of the coal lands of the United States. That on the 7th day of October, 1880, the said declaratory statement was suspended by order of the commissioner of the general land office of the United States, and that the right of said Evans to acquire further title to said lands was suspended and held in abeyance by the United States until such time when the necessary and proper instructions should have been issued by the said commissioner. That on the 26th day of November, 1881, and during the time when the rights of plaintiff Roger C. Evans were suspended as aforesaid, one Byron McMaster made, executed, and delivered to defendant William A. Bell, as trustee, a warranty deed for the lands above described. That the said defendant Bell took the said conveyance from the said McMaster, for and in the interest of himself and the defendants Porter, Barlow, and others. That thereafter, and during the suspension of the rights of plaintiff Evans, as aforesaid, to wit on the 1st day of December, 1881, the said Byron McMaster made a pretended entry of the said lands in the United States land office at Leadville, Colo. That the said pretended entry was made while the said lands in section four were withdrawn from sale by the United States, and without notice to plaintiff Evans. That, while said pretended entry purported to be made for the sole use and benefit of the said Byron McMaster, it was made for the use and benefit of defendants Bell, Porter, Palmer, Barlow, and others, who were interested with defendant Bell in the transaction. That said pretended entry was fraudulent and void, by reason of the facts stated aforesaid. That thereafter the necessary and proper instructions relating to the sale and disposition of the said lands were issued by the commissioner of the general land office of the United States, and plaintiff Roger C. Evans was notified that he must appear at the United States land office at Gunnison, Colo., and make his final proof, enter and pay for said lands; and that within due time from the date and service of said notice, to wit, on the 27th day of June, 1892, plaintiff Roger C. Evans appeared at the United States land office at Gunnison, Colo. made his final proof for the said land, and offered to pay for and enter the said land; and that the register and receiver of the said land office refused to accept the money tendered in payment for said land, as by a rule of the interior department of the United States they were required to do, on account of the erroneous and fraudulent entry of the said McMaster, and referred the matter of the rights of claimants for the said lands to the commissioner of the general land office of the United States; and that thereupon plaintiff Roger C. Evans made his affidavit of contest against the claim of said McMaster, William A. Bell, and the Durango Land & Coal Company, and charged that the said claim of the said parties was based upon the fraudulent entry of McMaster. That said entry was made for the use and benefit of William A. Bell, the Durango Land & Coal Company, and others. That it was made without notice to plaintiff Evans that said entry was not made for the use and benefit of said McMaster, and was fraudulent and void; and prayed that the entry of said McMaster be canceled, and that he (the said Roger C. Evans) be allowed to enter the said lands. That upon the filing of said affidavit, and by reason of the charges made therein against the entry of said McMaster, the commissioner of the general land office of the United States ordered that there should be held at the United States land office at Gunnison, Colo., a contest and hearing to determine the rights of the claimants of the said land. That said order for contest was issued on the 17th day of September, 1892, and that upon the 27th day of September, 1892, the register and receiver of the United States land office at Gunnison, Colo., issued their notice of the hearing of said contest, and fixed the date for said hearing for November 15, 1892. That the defendant Bell deeded the said lands to the defendant the Durango Land & Coal Company on the 8th day of January, 1885, and before the institution of said contest. That the notice of said contest was directed to and duly served on the said Byron McMaster, William A. Bell, and the Durango Land & Coal Company, and they and each of them were required and commanded to appear on the 15th of November, 1892, at the said land office, and offer their proofs to sustain their claim to the said land.'

The complaint further showed, in substance, the following facts: That the contest so as aforesaid inaugurated was duly heard by the register and receiver of said land office; that said officer decided the contest on January 18, 1898, after all the proofs were in, and after the argument of counsel, said officer holding that, as the entry by said McMaster was made presumably for the use and benefit of the Durango Land & Coal Company, the same was fraudulent and void, and should be canceled; that an appeal from such decision was subsequently taken to the commissioner of the general land office by the Durango Land & Coal Company, and to the secretary of the interior, and that the decision aforesaid was affirmed by each of said officers; that, in pursuance of such decision, the entry of McMaster was canceled, and the said Evans was thereupon allowed to enter the lands; that said Evans, in pursuance of such decision, accordingly entered and paid for the lands on December 31, 1894, receiving the usual receiver's receipt in duplicate for the money so paid; that on February 28, 1895, a patent was issued by the United States to the said Evans for the east half of the northwest of section ten, in township fourteen south, of range eighty-six west; that on March 20, 1895, Evans sold and conveyed to the plaintiff Sprigg Shackleford an undivided two-thirds interest in the lands so entered by him, and a two-thirds interest in any claim that he (the said Evans) might have against the defendants herein, on account of the extraction of coal from said lands; that, at the same date, the plaintiff Shackleford sold and conveyed to the plaintiffs R. G. Carlisle and John Tetard an undivided one-third interest in the land and claim which he had thus acquired from said Evans; that between October 2, 1880, and March 20, 1895, the plaintiff Evans was the owner of and entitled to the exclusive use and occupation of the aforesaid east half of the northwest quarter of section ten, in township fourteen south, of range eight-six west, situated in Gunnison county, Colo., and that from March 20, 1895, all of said plaintiffs had been the owners of said land, and entitled to the exclusive use and occupation of the same; that between January 8, 1885, and August 26, 1896, the defendants jointly, by their agents and employes, wrongfully entered into and upon said lands last described, and into a vein of coal under the surface of said land, and wrongfully mined and extracted therefrom 1,445,000 tons of coal, and converted the same to their own use. In view of the premises, plaintiffs demanded judgment against the defendants for the sum of $1,445,000.

The defendants below entered their appearance to the suit, and in due time filed a petition and bond for the removal of the cause to the circuit court of the United States for the district of Colorado. In the latter court a motion to remand the cause to the state court was made and overruled. The defendants then filed a demurrer to the aforesaid complaint, which demurrer was sustained, and a final judgment was entered, dismissing the suit at the plaintiffs' cost. The plaintiffs sued out a writ of error, assigning as grounds for reversal that the motion to remand the case should have been sustained, and that the demurrer should have been overruled.

John R. Smith and Sprigg Shackleford (S. D. Crump with them on the brief), for plaintiffs in error.

Lucius M. Cuthbert and David C. Beaman (Henry T. Rogers and Daniel B. Ellis were with them on the brief), for defendants in error.

Before SANBORN and THAYER, Circuit Judges, and LOCHREN, District Judge.

THAYER Circuit Judge, after stating the case as above, .

The motion to remand the case to the state court appears to have been properly overruled. If the plaintiffs had contented themselves, as they...