Ewert v. Robinson

• Court: U.S. Court of Appeals — Eighth Circuit
• Citation: Ewert v. Robinson, 289 F. 740 (8th Cir. 1923)
• Decision Date: 05 April 1923
• Docket Number: 5812,5821.
• Parties: EWERT v. ROBINSON et al. ROBINSON et al. v. EWERT.

289 F. 740

EWERT v. ROBINSON et al.

ROBINSON et al. v. EWERT.

Nos. 5812, 5821.

United States Court of Appeals, Eighth Circuit.

April 5, 1923

Rehearing Denied June 14, 1923. [Copyrighted Material Omitted]

George J. Grayston and Paul A. Ewert, both of Joplin, Mo., for Ewert.

A Scott Thompson, of Miami, Okl. (Hiram W. Currey, of Joplin Mo., on the brief), for Robinson and others.

Before STONE, LEWIS, and KENYON, Circuit Judges.

KENYON Circuit Judge.

Parties will be designated as in the lower court. This case involves questions arising under a certain lease executed in the month of May, 1915, by Jessie L. Imbeau, lessor, to Paul A. Ewert, lessee. The granting clause of the lease is as follows:

'Does by these presents demise and lease unto the said party of the second part, his successors or assigns, the following tracts or parcels of land, viz.: The northwest quarter of the northeast quarter of section twenty-three (23), township twenty-nine (29) range twenty-three (23) east of the Indian meridian, Ottawa county, Oklahoma, containing 40 acres, more or less, for the term of ten (10) years from the date hereof, for the purpose of prospecting, mining, drilling, boring or digging for oil, gas, asphaltum, lead, zinc, and all and every other kind or kinds of valuable mineral, ore, fossil, or vegetable substance whatever, with the right to use so much of the surface of said land, and so much of the timber and building stone found thereon as may be properly needed to successfully conduct said prospecting and mining operations; also the right of way over and across said land whereon to construct and operate such line or lines of railroad as may be necessary to carry on and prosecute the objects of this indenture; also the right to erect buildings, derricks, and pumping plants, for the business of boring, prospecting, mining, and prosecuting the object of this indenture, with the right to remove or sell any and all of said buildings, refineries, concentrating mills, machinery, and pipe lines, at any time or at the expiration of this lease.'

The lease also contains the following clauses:

'The party of the second part hereby agrees to begin operations on the above-described premises within twelve months after the date of this lease; and in case operations do not begin within said stated time said second party shall pay first party ten (10) cents per acre yearly for each and every acre contained in this lease, in lieu of said work and mining operations, as rental for said land. * * *

'The party of the first part further agrees to give to the party of the second party thirty (30) days' notice of her intention to cancel the within lease, by reason of default made in any of the conditions contained therein, by the said party of the second part, and said second party shall then have thirty (30) days within which to comply with the conditions of said lease before any forfeiture may be declared or this lease canceled.

Plaintiff executed a sublease in May, 1916, to C.A. West. West later assigned to one E. J. Bigham. Bigham sublet to J. H. Wright. Defendant Pottorff acquired the fee to said land on June 23, 1916, by a conveyance from Jessie L. Imbeau. In August, 1916, said defendant executed a mining lease to J. H. Wright, the same party who sublet from E. J. Bigham. Wright made entry upon the land about August 8, 1916. Defendant Pottorff served notice on plaintiff August 4, 1916, of forfeiture, in which notice he recited that he had taken possession of the premises. August 8, 1916, plaintiff deposited the rental provided for in the lease, viz. 10 cents per acre, in case operations were not commenced within one year from date of lease, in the bank at Joplin, and the bank notified the defendant of that fact. On August 28, 1916, plaintiff tendered the rental to defendant Pottorff in person, who refused it. Plaintiff has never been in actual possession of the 40-acre tract of land, but attempted to secure possession.

A jury was waived, and the case tried to the court, which made certain findings of fact and law, and entered judgment for plaintiff for possession, and found him entitled to nominal damages only. From the judgment of the court in favor of plaintiff's possession, defendants bring writ of error, and from the judgment of the court allowing merely nominal damages plaintiff prosecutes writ of error.

The errors assigned fairly raise the following questions:

(a) Was there forfeiture of the lease from Jessie L. Imbeau to plaintiff?

(b) Had plaintiff such interest under the contract of lease as was sufficient to sustain an action of ejectment, or was the contract a mere license or incorporeal hereditament?

(c) If the contract was a lease for a term of years, was it a lease in praesenti or in futuro?

(d) Could ejectment lie where there has been no entry by plaintiff?

(e) Was plaintiff entitled to possession at the time of the commencement of the action, in view of his lease to West and West's assignment to Bigham with his consent?

On the cross-writ of error the question of plaintiff's damage and whether or not plaintiff has preserved the right to complain in this court, in view of the fact that a jury was waived and no request for findings of fact or law made by plaintiff prior to the findings of law and fact by the court? These questions in their order.

Under the terms of the lease plaintiff agreed to begin operations within 12 months after the date of the lease and 'in case operations do not begin within said stated time said second party shall pay first party ten (10) cents per acre yearly for each and every acre contained in this lease, in lieu of said work and mining operations, as rental for said land. ' It was further agreed that the party of the first part was to give to the party of the second part 30 days' notice of her intention to cancel the lease by reason of default made in any of the conditions contained therein by the said party of the second part, and said party of the second part should then have the 30 days within which to comply with the conditions of said lease before any forfeiture might be declared or the lease canceled. Plaintiff did not exercise his right to develop the land within the first year. Hence he was under the necessity of paying the first party 10 cents per acre yearly for each and every acre contained in the lease. Defendant Pottorff did not become the owner of the land until June 23, 1916.

The court found as a matter of fact that at the time of the execution of the lease the lessor was indebted to plaintiff on the contract in the sum of $100, and that on June 10, 1916, he mailed to her address a check for ten cents an acre in lieu of delay money for the period of the year, and that this check was returned and not delivered to her; that on August 4, 1916, the defendant Pottorff sent by registered mail a notice of forfeiture to the plaintiff; that on August 28, 1916, plaintiff tendered in person the lieu or delay money at the rate of 10 cents per acre per year to the defendant Pottorff, which was refused. The lease does not fix the time when the 10 cents per acre shall be paid if mining operations are not commenced. It does provide for notice before cancellation, and gives to lessee 30 days after notice within which to comply with the conditions of the contract. It contains no forfeiture clause, nor any provision making the time of rental payments of the essence of the contract. Rental was tendered within 30 days after notice of forfeiture.

The question of the construction of a similar deferred operation clause is discussed by this court in the case of Smith v. McCullough et al., 285 F. 698, opinion filed December 23, 1922. That case, it is true, is an equity case, and in that respect differs from the case at bar. It is pertinent, however, on the question, under a similar provision, of rental where mining operations are deferred.

In Aggers v. Shaffer et al., 256 F. 648, 650, 168 C.C.A. 42, 44, this court said, referring to the question of forfeiture of a lease there under consideration:

'Plaintiff's interest in the premises was a substantial one; it was not based on a mere unilateral option, subject to the strictest construction, and forfeitable for the slightest deviation.'

Such doctrine is applicable here. The court found under all the facts there had been no forfeiture, and such conclusion was correct.

The doctrine is well established that in the United States courts an action of ejectment will not lie based on a mere equitable title, notwithstanding the state statutes may provide otherwise. This is based on the constitutional distinction between law and equity. If the title that plaintiff had here were a mere equitable title, then the action as one in ejectment could not have been maintained in the federal court. McGrew v. Byrd, 257 F. 66, 168 C.C.A. 278; Sweatt v. Burton (C.C.) 42 F. 285; William Fenn v. Peter H. Holme, 62 U.S. (21 How.) 481, 16 L.Ed. 198; Hooper et al. v. Scheimer, 64 U.S. (23 How.) 235, 16 L.Ed. 452; Sheirburn v. Cordova et al., 65 U.S. (24 How.) 423, 16 L.Ed. 741; Oaksmith's Lessee v. Johnston, 92 U.S. 343, 23 L.Ed. 682; Foster v. Mora, 98 U.S. 425, 25 L.Ed. 191.

This leads to the question as to the kind of title, if any, that plaintiff acquired by his lease. Defendants claim that it was a mere license or option, and if any estate was created it is merely one in futuro, and plaintiff's right that known to the law as an interesse termini-- an incorporeal hereditament. On the other hand, plaintiff claims the contract is not a license, but a lease for a term of years in praesenti. Both contentions have the support of many authorities.

In Oklahoma almost all of the leases under which such decisions have been made and...