Gilbert v. Missouri, K. & T. Ry. Co.

• Court: U.S. Court of Appeals — Eighth Circuit
• Citation: Gilbert v. Missouri, K. & T. Ry. Co., 185 F. 102 (8th Cir. 1911)
• Decision Date: 12 January 1911
• Docket Number: 3,292.
• Parties: GILBERT et al. v. MISSOURI, K. & T. RY. CO. et al.

185 F. 102

GILBERT et al. v. MISSOURI, K. & T. RY. CO. et al.

No. 3,292.

United States Court of Appeals, Eighth Circuit.

January 12, 1911

William Blake and Victor O. Johnson, for plaintiffs in error.

W. C Franklin (Clifford L. Jackson, W. R. Allen, and M. D. Green on the brief), for defendants in error.

Before VAN DEVANTER and HOOK, Circuit Judges, and CARLAND, District judge.

CARLAND District Judge.

This action was brought by plaintiffs in error to recover of defendants in error damages for the removal and conversion of oil from a strip or parcel of land 100 feet in width running across the north half of the northwest quarter of section 16 township 21, range 8 east, Indian Meridian, Pawnee county Okl. The complaint alleged that Jason A. Powell and Barbara Powell, on August 13, 1902, conveyed the above strip of land to the Missouri, Kansas & Oklahoma Railroad Company for a right of way and for railroad purposes only, and as evidence of such conveyance made, executed, and delivered the following deed of conveyance:

'Warranty Deed.

'Know all men by these presents: That Jason A. Powell and Barbara A. Powell, his wife, of the county of Pawnee in the territory of Oklahoma, parties of the first part, for and in consideration of the sum of four hundred dollars ($400.00) to said grantors in hand paid, the receipt whereof is hereby acknowledged, do hereby grant, bargain, sell and convey unto the Missouri, Kansas and Oklahoma Railroad Company, a corporation created and existing under and by virtue of the laws of the territory of Oklahoma, party of the second part, its successors, and assigns, the following described tract or parcel of land, real property and premises, situated in the county of Pawnee, territory of Oklahoma, that is to say: A strip or parcel of land one hundred feet in width, running through and across my farm on the line as now located in the north half of the northwest quarter of section 16, township 21, range 8 east, Indian Meridian, in the Outlet, Oklahoma.

'To have and to hold the premises hereby conveyed with all the right, privileges and appurtenances thereunto belonging, or in any wise appertaining, unto the said Missouri, Kansas & Oklahoma Railroad Company, party of the second part, its successors and assigns forever, free, clear and discharged of and from parts, charges, taxes, judgments, mortgages, and incumbrances of whatsoever nature, and the said Jason A. Powell, and Barbara A. Powell, and their heirs, executors and administrators hereby covenant to warrant and defend the title to the premises hereby conveyed against the claims of any person or party.

'In witness whereof we have hereunto subscribed our names the 13th day of August, A.D. 1902.

Jason A. Powell. 'Barbara A. Powell.'

This deed was attached to the complaint as an exhibit. The land therein described was subsequently conveyed to the Missouri Kansas & Texas Railway Company, one of the defendants in error. There was a demurrer to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained, and judgment of dismissal of the action followed. The only question argued in the briefs of counsel on either side is: What was the estate conveyed by the deed above mentioned as the facts appear in the complaint? This being so, we may assume that the complaint otherwise stated a cause of action. Plaintiffs in error contend that the demurrer admits that the strip of land was conveyed for a right of way only, and hence defendants had no right to drill wells and extract oil therefrom. Defendants in error contend that the allegation of the complaint that the land was conveyed for right of way and railroad purposes only is controlled by the deed of conveyance attached to the complaint as an exhibit, and that by the deed a...