Kansas City Southern Ry. Co. v. Marietta Oil Corp.

• Decision Date: 23 March 1939
• Docket Number: No. 8790.,8790.
• Citation: 102 F.2d 603
• Parties: KANSAS CITY SOUTHERN RY. CO. v. MARIETTA OIL CORPORATION et al.
• Court: U.S. Court of Appeals — Fifth Circuit

102 F.2d 603 (1939)

KANSAS CITY SOUTHERN RY. CO. v. MARIETTA OIL CORPORATION et al.

No. 8790.

Circuit Court of Appeals, Fifth Circuit.

March 23, 1939.

Edward S. Klein, W. Scott Wilkinson, and C. Huffman Lewis, all of Shreveport, La., for appellant.

Elmo P. Lee and J. D. Barksdale, both of Shreveport, La., for appellees.

Before HUTCHESON, HOLMES, and McCORD, Circuit Judges.

HUTCHESON, Circuit Judge.

The suit was for an injunction to prevent entry upon, to drill for oil on, the railroad right of way.

The claim was (1) that defendant had no right of any kind to the land, and therefore none to prospect for oil or other minerals underlying it, and (2) that if it did have, such rights were held subject to the exclusive right of plaintiff to possess the right of way for railroad purposes.

The defense was (1) that defendant was the owner of the land and minerals, subject only to plaintiff's right of way easement, and (2) that the use defendant desired to make of the surface of the land was not inconsistent, but entirely consistent, with plaintiff's use of it for right of way purposes.

The District Judge, of the opinion that defendant was the owner of the land and minerals subject only to plaintiff's right of way, and that the operations for oil and gas defendant proposed to set on foot were not inconsistent, but entirely consistent with, plaintiff's use of the land for right of way, denied the injunction.

Appellant is here, insisting that there was error in both findings; that defendant owned an interest in the land, and that the use it proposed to make was not inconsistent, but consistent, with plaintiff's use of the land for right of way. These are the material facts.

On April 8, 1899, Lynn, and Big Pine, Lumber Companies under whom both plaintiff and defendant claim, executed a deed in fee to one W. B. Parker covering property described as follows: "The S. W. ¼ of the N. W. ¼ of Section 23, Township 23, Range 16 West, less a right of way 100 feet in width reserved for the Kansas City, Pittsburgh & Gulf Railroad Company through said land, in all 36, 32/33 acres."

On November 3, 1900 Lynn Lumber Company conveyed to the Kansas City, Shreveport & Gulf Railroad a right of way over and across "* * * also the West ½ of N. W. ¼ of Section 23 Range 16, West," reciting — "The right of way herein granted being 100 feet in width as now located." Plaintiff, holding under the Kansas City, Pittsburgh & Gulf and the Kansas City, Shreveport & Gulf Railroads, has been for many years and still is maintaining and using, and operating its trains over the right of way thus recognized and granted.

The defendant acquired its claims in 1936. This is its chain of title.

On November 16, 1910 the Big Pine Lumber Company of Arkansas conveyed to Big Pine Lumber Company, Ltd., of Louisiana by specific description many sections of land, none of them the land in question here. The deed, however, concluded with an omnibus clause, "also all other lands or property of any kind whatever, situated in the Parish of Caddo that is owned by the Big Pine Lumber Company, or that it may own in the State of Louisiana." The land in question is in Caddo Parish, and defendant's claim is based upon this clause.

On March 18, 1936, one Clem Clarke obtained from Big Pine Ltd. a deed without warranty to a strip containing 3 1/3 acres of land more or less, "being 100 feet in width * * * the same property now occupied by the Kansas City Southern Railroad as a right of way, * * *" the Lumber Company reserving a 1/32 mineral royalty.

In April, 1936, Clarke obtained a transfer, from Lynn Lumber Company stockholders, of all of its stock, property and assets. On May 21, 1936 by deed without warranty, Lynn Lumber Company conveyed the same strip to Clarke. On May 18 Big Pine and on May 21 Lynn Lumber Company conveyed a 25 foot strip adjoining and contiguous to the right of way, being half of a street which had been abandoned by action of the Police Jury of Caddo Parish.

On May 22, 1936 Clarke conveyed to Marietta Oil Company the rights and interest so acquired, and thereafter, under contract with that company for development, five locations were made along the East side of the right of way. The first well to be drilled under the plan was located 45 feet from the center of the main line of track, and 5 feet within the East line of the right of way.

There was considerable testimony on plaintiff's part, offered both at the time of the granting of a preliminary injunction, about a year before the trial on the merits, and at the trial, that it needed the right of way for its purposes, and further, that the drilling and operation of wells thereon would not only interfere with its use, but would be dangerous.

The District Judge found that the evidence as to danger to persons and property from the drilling and operation of wells on the right of way was to some extent conflicting, but that with modern means of protecting situations of this kind, drilling and operating for oil could be carried on with reasonable safety. He thought the fact that the railroad company had leased for oil development a part of the right of way which it owned in fee was most significant evidence that such uses neither were, nor were considered to be, dangerous. He thought, too, that the contention of the plaintiff that it had need of that part...