McCullough v. Smith

• Decision Date: 20 June 1917
• Docket Number: 4784.
• Citation: 243 F. 823
• Parties: McCULLOUGH et al. v. SMITH. [a1]
• Court: U.S. Court of Appeals — Eighth Circuit

243 F. 823

McCULLOUGH et al. v. SMITH. ^[a1]

No. 4784.

United States Court of Appeals, Eighth Circuit.

June 20, 1917

Paul A Ewert, of Joplin, Mo. (A. C. Towne, of Miami, Okl., on the brief), for appellants.

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

Before SANBORN and SMITH, Circuit Judges, and AMIDON, District Judge.

SMITH Circuit Judge.

According to the allegations of the bill, the plaintiffs W. P McCullough and T. F. Phillips, residents and citizens of Oklahoma, and D. E. Beth, a citizen and resident of Kansas, brought this suit in equity against W. M. Smith, a citizen and resident of Kansas. The bill substantially alleges that on March 2, 1895, c. 188, Congress enacted 28 Stat. 876, 907, as follows:

'That the allotments of land made to the Quapaw Indians, in the Indian Territory, in pursuance of an act of the Quapaw National Council, approved March twenty-third, eighteen hundred and ninety-three, be and the same are hereby ratified and confirmed, subject to revision, correction and approval by the Secretary of the Interior: Provided, however, that any allottee who may be dissatisfied with his allotment shall have all the rights to contest the same provided for in said act of the Quapaw National Council subject to revision, correction, and approval by the Secretary of the Interior. And the Secretary of the Interior is hereby authorized to issue patents to said allottees in accordance therewith: Provided, that said allotments shall be inalienable for a period of twenty-five years from and after the date of said patents. ' See Goodrum v. Buffalo, 162 F. 817, 89 C.C.A. 525.

There was patented to Leander J. Fish some 200 and possibly 240 acres of land. On June 21, 1906, c. 3504, the Fifty-Ninth Congress (34 Stat. 325, 344) enacted the following:

'That Leander J. Fish, an allottee of two hundred acres of land in section thirty-two, township twenty-nine, range twenty-three east, and of forty acres in section fourteen, township twenty-nine, range twenty-four east, in the Quapaw Reservation, under the provisions of the act of March second, eighteen hundred and ninety-five (twenty-eighth Statutes, page nine hundred and seven), and the act of March third, nineteen hundred and one (thirty-first Statutes, page ten hundred and fifty-eight), be, and he is hereby, authorized to alienate such portion of said land as he may see fit, not exceeding one hundred and twenty acres, under such rules and regulations as the Secretary of the Interior may prescribe, and any conveyance of such land made by said Fish shall be executed subject to the approval of the Secretary of the Interior.'

Thereafter, on July 14, 1906, Fish executed a mortgage deed to E. V. Kellett upon the east half of the northwest quarter, and the southwest quarter of the northeast quarter, section 32, township 29, range 23, being 120 acres, to secure a note for $1,000 due in three years, with 9 per cent. interest. This mortgage deed was received by the Secretary of the Interior, and approved July 20, 1906, although for aught that appears he had never prescribed any rules or regulations as contemplated in the last-quoted act of Congress. Thereafter Kellett assigned the said mortgage deed to the Alliance Trust Company of Dundee, Scotland. On June 20, 1908, the Alliance Trust Company acknowledged full payment and satisfaction of said mortgage, and released the same, and reconveyed the premises to Leander J. Fish, his heirs and assigns. On June 7, 1897, c. 3, Congress passed an act (30 Stat. 62, 72):

'That the allottees of land within the limits of the Quapaw Agency, Indian Territory, are hereby authorized to lease their lands, or any part thereof, for a term not exceeding three years, for farming or grazing purposes, or ten years for mining or business purposes.'

On April 29, 1912, Leander J. Fish executed a lease of the same 120 acres previously mortgaged to Kellett to Dallas Hopper for the term of ten years,

'for the purpose of prospecting, mining, drilling, boring, or digging for oil, gas, asphaltum, lead, zinc, coal and copper and all and every other kind or kinds of valuable minerals, ore, fossil, or vegetable substance whatever; * * * if oil, mineral or any other substances of value are found in paying quantities in any well drilled or shaft sunk, the privilege of operating shall continue so long as oil, minerals or other substances of value can be produced in paying quantities on such terms and conditions as parties hereto have herein agreed upon after expiration of this lease. * * * The party of the second part hereby agrees to begin operations on the above-described premises within ninty days after the date of this lease; in case such operations do not begin within said stated time, said second party agrees to pay to said first party 5¢ per acre yearly for each and every acre contained in this lease, in lieu of said work, so long as they or their assigns desire to operate or hold the same.'

Immediately after the execution of said lease said Dallas Hopper entered into possession of said premises under its terms, and thereafter sold and conveyed all his rights under said lease to the plaintiffs, and ever since the date of said lease said Hopper and his assignees, the plaintiffs, have remained in possession of the leased premises under said lease, and have prospected and developed said lands, and have sunk numerous test or drill holes upon said land, and have sunk a shaft thereon, and have improved and developed the same for mining purposes. The plaintiffs claim a leasehold interest in said premises under said mining lease, and defendant claims an estate and interest adverse to the plaintiffs; that the claim of defendant is without any right whatever, and the said defendant has no estate, title, or interest whatever in said premises or any part thereof. The bill prays that the plaintiffs' title to their claimed leasehold interest be quieted; that it be decreed the defendant has no right whatever in said land, and that he be debarred from asserting any claim adverse to the plaintiffs', and that defendant's claim under his mining lease be decreed void, and for general equitable relief. The defendant filed a motion to dismiss the bill because of want of equity, and this motion was sustained, and the plaintiffs appeal.

It was not claimed in the motion to dismiss that the court lacked jurisdiction. For the first time it is urged in this court that the case should have been dismissed for that reason. It is probable that the jurisdiction could not be sustained upon the ground of diversity of citizenship, as it is alleged that the plaintiff, D. E. Beth, is a citizen and resident of the state of Kansas, and that the defendant, W. M. Smith, is a citizen and resident of the same state. But it will hereafter appear that this case 'arises under the * * * laws of the United States,' within the meaning of Judicial Code, Sec. 24, sub. 1 (Act March 3, 1911, c. 231, 36 Stat. 1091, as amended U.S. Comp. St. 1916, Sec. 991), and the objection to the jurisdiction cannot be sustained.

Plaintiffs contend that the conveyance to Kellett was such an exhaustion of the power of alienation under the act of the 59th Congress (34 Stat. 344) that all control over alienation of the lands in question under the act of the 53d Congress (28 Stat. 907), and under the act of the 55th Congress (30 Stat. 72), had ceased to exist when the lease was given by Fish, and that it was given not under the power conferred by the 59th Congress (34 Stat. 344), but absolved from any and all restrictions whatever. This involves a construction of the act of Congress of May 2, 1890, c. 182, 26 Stat. 81, 94, Sec. 31, and the 14th section of the act of June 28, 1898, c. 517, 30 Stat. 495, 500.

In 1884 there was adopted, by the general Assembly of Arkansas, Mansfield's Digest of the statutes of that state down to the close of the General Assembly of 1883. By section 31 of the statute of May 2, 1890 (26 Stat. 81, 94), Congress extended certain of these general laws over Indian Territory. It is noticeable that of the 156 chapters of Mansfield's Digest, less than one-third in number are covered by this act. It doubtless adopted the interpretation and construction put upon the statutes thus put in force in the Indian Territory by the Supreme Court of Arkansas prior to the adoption of the act of Congress, but not those decisions subsequent thereto.

In McClellan v. Pyeatt, 50 F. 686, 1 C.C.A. 613, this court held that although 26 Stat. 81, 94, put in force in Indian Territory the practice act of the state of Arkansas, and although ever since 1840 the Supreme Court of Arkansas had held that a motion for a new trial in the trial court to correct all of its alleged errors not apparent upon the face of the record was essential to review, this had no application in this court in appellate proceedings from the United States court of Indian Territory.

In Eddy v. Lafayette, 49 F. 798, 1 C.C.A. 432, this court held that where a statute of Arkansas had been construed by the Supreme Court of that state so as to change the burden of proof as to negligence from plaintiff to defendant in an action against a railroad company for killing stock, that as the statute was not extended to Indian Territory by the act of 26 Stat. 81, 94, the rule in the courts of Indian Territory had not been changed.

In Sanger v. Flow, 48 F. 152, 1 C.C.A. 56, and in Leak Glove Manufacturing Co. v. Needles, 69 F. 68, 16 C.C.A. 132, this court held that Congress was presumed to have put in force the laws of Arkansas enumerated in Indian Territory, with the interpretation and construction put upon said laws prior to the act of Congress by the Supreme Court of Arkansas.

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