Greene v. United States

• Decision Date: 08 July 1921
• Docket Number: 3525.,3523
• Citation: 274 F. 145
• Parties: GREENE et al. v. UNITED STATES. LOUCKS et al. v. SAME.
• Court: U.S. Court of Appeals — Fifth Circuit

274 F. 145

GREENE et al. v. UNITED STATES.

LOUCKS et al. v. SAME.

Nos. 3523, 3525.

United States Court of Appeals, Fifth Circuit.

July 8, 1921

F. M Cook, S. M. Cook, N. C. Blanchard, H. C. Walker, Jr., and Elias Goldstein, all of Shreveport, La., for appellants and cross-appellees in No. 3523.

J. D Wilkinson, S. L. Herold, and J. A. Thigpen, all of Shreveport, La., D. Edward Greer, of Houston, Tex., and R. L Batts, of Pittsburgh, Pa., for appellants and cross-appellees in No. 3525.

Robert A. Hunter, Sp. Asst. Atty. Gen., of Shreveport, La., for the United States.

Before WALKER, BRYAN, and KING, Circuit Judges.

KING Circuit Judge.

On July 19, 1917, the United States filed in the United States District Court, for the Western District of Louisiana a bill in equity against Charles J. Greene, Jr., and others, seeking a decree setting up its title, and granting relief in regard to certain lands described as lots 2 and 3 of section 27 township 20 north, range 16 west, Louisiana meridian, containing 65.77 acres according to a plat of survey approved March 28, 1917, by Clay Tallman, Commissioner of the General Land Office of the United States.

On August 2, 1917, the United States filed a similar bill in said court against A. C. Loucks and others seeking a like decree as to the land described therein as lot No. 4 of said section 27 according to the same plat of survey.

Each bill prayed a decree declaring the lands to be mineral in character, and to be the property of the United States, declaring all adverse claims or titles of the defendants to be null and void, canceling the same as a cloud on complainant's title, and enjoining the defendants from creating any cloud on complainant's title to the lands, or any oil, gas, or mineral therein, or from extracting the same therefrom. It prayed for the appointment of a receiver to take charge of said lands pendente lite and for an accounting for the value of the oil and gas theretofore extracted therefrom by the defendants.

The defendants in each case denied the title of the United States and asserted that the land was held by them by mesne conveyances under patents theretofore granted by the United States conveying the same.

Greene and his codefendants asserted title under a patent including the fractional N.W. 1/4 of said section 27.

Loucks and his codefendants asserted title under a patent including the fractional N.E. 1/4 of said section 27. Each answer averred that at the dates of said patents said fractional N.E. 1/4 and N.W. 1/4 of said section 27 were conveyed according to the plat of survey then on file in said land office, and bordered on and adjoined Ferry Lake, and there was no land indicated as between the meander line and the waters of said lake (which is a navigable body of water); that said patents embraced and conveyed the lands now claimed by the United States.

The entire township 20 was originally surveyed by one Warren in 1839. His plat of township 20 showed Ferry Lake as the northerly boundary of fractional lot 27. No land is indicated on said plat as lying between the meander line of said lake and the waters thereof. In 1908 the presence of oil in adjacent territory caused the President to withdraw all lands of the United States in this and other townships from any manner of appropriation, and a resurvey of this township was directed where it bordered on Ferry Lake and its arms. This survey determined that the mean high-water level of Ferry Lake at the time of said Warren survey in 1839, as well as in 1812, when Louisiana became a state, was 173.09 feet above the Gulf level; that Warren so recognized it and that his section lines terminated at the lake at this elevation, but that in meandering the shore of said lake in front of said section 27 Warren's courses and distances do not follow the shore of the lake, but run over high ground which at its farthest point is about 1,200 feet from the true shore line. The omitted land is intersected with several ravines running to Ferry Lake. It contains 97.64 acres divided into lots 2, 3, and 4 of section 27 and fractional section 23, as per said plat of survey of March 28, 1917, the lots 2 and 3 contain 65.77 acres. No. 4 contains 14.13 acres, and section 23, 17.44 acres. The acreage of section 27 as surveyed by Warren in 1839 was 468.67 acres. The acreage claimed by the defendants in case No. 3523 to be included in the Warren survey and the patent thereunder under which they claim is that in lots 2 and 3 and about one-half of the 16.61 acres described as the fractional section 23 in the Kidder survey, or 74.08 acres. That claimed by the defendants in No. 3525 is lot No. 4 of section 27 and the rest of said fractional section 23, or 23.56 acres. While these suits involve no part of the land described as section 23, the title to the acreage is necessarily disposed of by the decision of these cases.

The cases were referred to a master, who took testimony and made a report finding that the land in controversy had been omitted from the Warren survey by manifest error, and that the government was the owner thereof. He also found that the government was entitled to recover the value of the oil received therefrom less all costs of extracting the same. The defendants excepted to the report, and the government to so much thereof as allowed to defendants the cost of raising said oil.

The court overruled all exceptions and rendered a decree in favor of the government in accord with the master's report.

The defendants appealed, assigning error in the finding that the government was the owner of the land, and the government has taken a cross-appeal from the finding that defendants were to be credited with the cost of raising said oil.

There was no dispute as to the facts. The only evidence on which the master predicated his finding that the patents including the northwest and northeast fractional quarters of said section 27 did not cover the land sued for by the government was that the resurvey of township 20 by Kidder and a reproduction of the meander line of the Warren survey, according to the calls in Warren's field notes, did not follow the ordinary high-water elevation of 173.09 feet above Gulf level, but ran over high ground at distances varying from a few feet to about one-fourth of a mile from said 173.09-foot contour. Warren's plat does not show any meander line, but gives the waters of Ferry Lake as the boundary of the fractional sections bordering thereon. The section lines of these sections are conceded to reach the ordinary high-water level as determined by Kidder and the scientific experts to have existed at the time of Warren's survey.

Kidder's survey was made for the purpose of marking the ordinary high-water level of Ferry Lake in 1839 at the time of Warren's survey. This elevation was determined by careful examination and by ecological and geological experts, and a meander line carefully run at 173.09 feet above Gulf level, that having been fixed as the ordinary high-water level existing in 1839. The plat of this survey also traces the meander line as given by the calls of Warren's field notes.

Both meander lines, thus marked, beginning on the west side of section 27, were generally in a northeast direction to the most northerly point of the land on the south shore of Ferry Lake as marked on the Kidder and Warren plats respectively, and then run in a southerly and southeasterly direction to section 26 on the east.

The additional land shown on Kidder's plat is a strip bounded on the north by a broken line, forming roughly an arc with the courses of Warren's meander line as its chord. Its greatest width is about one-quarter of a mile; its length is about one mile.

The evidence shows that the land in controversy was regarded as conveyed by said patents; that parts of it were cultivated and a dwelling house was erected on the part sued for in the Greene Case, near the lake. The Warren plat referred to in said patents indicated Ferry Lake as the northern boundary of the land conveyed by each patent.

The only apparent reason for the departure of the traverse line from the shore of the lake is that the land was broken with ravines running down to the lake; that these ravines in times of very high water were partially flooded, and the convenience of the surveyor may have occasioned a failure to follow the water level, the land left out being at the time of little value. In other parts of this survey the Warren meander line, as reproduced by Kidder, in places runs into the lake and includes within its calls, as land, small portions of the lake.

There is no suggestion of any purpose on the part of Warren not to include all the land up to the water of the lake in this section as surveyed; and if the land described in the Kidder survey as outside of Warren's traverse line in section 27 is included, it still leaves section 27 a fractional section.

The evidence of the government to the effect that the traverse line was a manifest error is only the expression of an opinion, based solely on the fact that it runs from the margin of the lake on high ground in the meander heretofore described. This opinion is based on an absence of explanation given for the discrepancy, and not on any evidence of an intention to make the line one of boundary, and to depart from the general rule. It is conceded that the survey as a whole (except in the case where a large tract was clearly omitted where Jeems Bayou and Ferry Lake unite) follows generally the contour of the lake and makes the lake the boundary. It is also not disputed that as to the land sold by the government in section 27 the survey referred to in the patent represented the lake as its boundary. The question therefore is: Did the evidence in...