Midland Valley R. Co. v. Sutter

• Citation: 28 F.2d 163
• Decision Date: 30 July 1928
• Docket Number: No. 8080.,8080.
• Parties: MIDLAND VALLEY R. CO. v. SUTTER et al.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

28 F.2d 163 (1928)

MIDLAND VALLEY R. CO. v. SUTTER et al.^*

No. 8080.

Circuit Court of Appeals, Eighth Circuit.

July 30, 1928.

O. E. Swan, of Muskogee, Okl. (J. D. Gibson, of Muskogee, Okl., on the brief), for appellant.

H. W. Hart, of Wichita, Kan. (Charles G. Yankey, John Gleason, Kenneth Cox, John Gregory Sears, Glenn Porter, Enos E. Hook, and W. G. McDonald, all of Wichita, Kan., on the brief), for appellees.

Before LEWIS, Circuit Judge, and PHILLIPS and JOHN B. SANBORN, District Judges.

PHILLIPS, District Judge.

This is a suit by the Midland Valley Railroad Company (hereinafter called the railroad company) against O. E. Sutter, H. H. Birkett, The Derby Oil Company, Iva Wartick, W. W. Wartick, Verda Teter, C. C. Teter, Iona Miller, L. E. Miller, M. V. Spence, Murriel Spence, and Raymond Spence, and Iona Miller, as guardian of Elda Pearl Spence, a minor, to enjoin them from entering upon the right of way of the railroad company and constructing thereon derricks and other structures, and from drilling for and producing oil and gas thereon.

On June 5, 1911, Adolph Blank and Sarah O. Blank, his wife, conveyed to the Wichita & Midland Valley Railroad Company, for a railroad right of way, the following described tract of land:

"The east one-half of block eighty-seven (87) and eighty-eight (88) in the city of Oxford, more particularly described as a strip of land one hundred ninety-five (195) feet in width, lying west of and adjacent to the center line of said railroad, * * * containing in all three (3) and 46/100 acres."

On May 17, 1911, W. H. Spence, and I. E. Spence, his wife, conveyed to the Wichita & Midland Valley Railroad Company for a railroad right of way, the following described tract of land:

"The west one-half of blocks sixty-eight (68) and sixty-nine (69) in the city of Oxford, more particularly described as a strip of land one hundred ninety-five (195) feet in width lying east of and adjacent to the center line of said railroad as now located in Colorado street along the west of said blocks, containing three and four-tenths (3.4) acres in the city of Oxford."

On March 14, 1911, the Wichita & Midland Valley Railroad Company entered into a lease with the railroad company for the term of 50 years from July 29, 1910, of its railroad property, including the particular rights of way acquired by it from Blank and Spence.

After Blank had conveyed to the railroad company a right of way in and across the east half of blocks 87 and 88, he conveyed certain land adjoining the same, to wit, outlots 26 and 27 and the west half of blocks 87 and 88, containing 13.3 acres of land, to E. C. Lyman. By a series of mesne conveyances the land conveyed by Blank to Lyman finally passed to Louie Fritz, the present owner. On November 24, 1923, Louie Fritz and Nellie Fritz, his wife, executed and delivered to the Roxana Petroleum Corporation an oil and gas lease of the west half of blocks 87 and 88 for a term of five years from date, and as long thereafter as oil or gas should be produced thereon.

On May 25, 1927, Adolph Blank executed a quitclaim deed to H. H. Birkett of all his right, title, and interest in and to the east half of blocks 87 and 88. On May 31, 1927, H. H. Birkett executed an oil and gas lease of the east half of blocks 87 and 88 to O. E. Sutter. On July 19, 1927, after the commencement of this suit, Louie Fritz executed to H. H. Birkett a quitclaim deed to the east half of blocks 87 and 88.

On February 28, 1912, William H. Spence executed a warranty deed to Ola Cowger, conveying the land adjoining the right of way theretofore conveyed by Spence to the railroad company. The Derby Oil Company holds a three-fourths interest in a purported oil and gas lease of the west half of blocks 68 and 69 from the heirs of William H. Spence. All of the heirs of William H. Spence are parties defendant to this action.

About June 29, 1927, the defendants went upon the east half of blocks 87 and 88 and the west half of blocks 68 and 69 at points more than 50 feet distant from the center line of the main line track, and placed thereon oil derrick timbers, tools, machinery, and appliances, and commenced the necessary operations for the drilling of three oil and gas wells.

On November 9, 1927, after a hearing on the merits, the trial court entered a decree in which he adjudged and decreed: That the defendants were entitled to drill for, operate for, and produce oil on the railroad company's right of way at points 50 feet or more from the center of the main line track; that the defendants should drill only such number of wells as were necessary to offset other wells on adjacent property; and that such wells should be drilled at places which would not prevent the laying or operating of a side track proposed to be built by the railroad company. It further adjudged and decreed that the court should retain jurisdiction of the cause for the purpose of determining in the future the right and necessity of the railroad company to use and occupy such part of the land as should be used by defendants in the drilling and operation of oil and gas wells. This is an appeal from that decree.

Under the statutes of Kansas and the decisions of the Supreme Court of Kansas, minerals under a railroad right of way belong to the owner of the fee, and not to the railroad company. Missouri, K. & N. W. R. Co. v. Schmuck, 69 Kan. 272, 76 P. 836; Harvey v. Missouri Pacific R. Co., 111 Kan. 371, 207 P. 761, 50 A. L. R. 300. The railroad company admits that it does not own the oil and gas lying underneath its right of way, but contends that the right to remove such oil and gas from the east half of blocks 87 and 88 is vested in the Roxana Petroleum Corporation under its oil and gas lease, and that the right to remove such oil and gas from the west half of blocks 68 and 69 is vested in Ola Cowger, or his successor in title. This contention is supported by the decision of this court in the case of Roxana Petroleum Corporation v. Sutter et al. (No. 8090; opinion filed July 30, 1928) 28 F.(2d) 159, and what we said there need not be reiterated here.

The railroad company further contends that, even if the defendants own the oil and gas underneath the surface of the right of way tracts involved herein, they have no right, under the facts and circumstances of this case, to go upon the surface of such right of way and construct thereon derricks and other structures, and drill for and produce oil and gas thereon. On the other hand, the defendants contend that they have the right to take the oil and gas in such right of way tracts, and that they have the right to go upon such right of way tracts and to drill for and produce oil and gas thereon, so long as they do not interfere with the use thereof by the railroad company for railroad purposes.

Speaking of the character of a railroad right of way, the Supreme Court of the United States, in Western Union Teleg. Co. v. Pennsylvania R. Co., 195 U. S. 540, at page 570, 25 S. Ct. 133, 141 (49 L. Ed. 312) said:

"A railroad right of way is a very substantial thing. It is more than a mere right of passage. It is more than an easement. We discussed its character in New Mexico v. United States Trust Co., 172 U. S. 171 19 S. Ct. 128, 43 L. Ed. 407. We there said (page 183 19 S. Ct. 133) that, if a railroad's right of way was an easement, it was `one having the attributes of the fee, perpetuity and exclusive use and possession; also the remedies of the fee, and, like it, corporeal, not incorporeal, property.' * * * A railroad's right of way has, therefore, the substantiality of the fee, and it is private property, even to the public, in all else but an interest and benefit in its uses. It cannot be invaded without guilt of trespass. It cannot be appropriated in whole or part, except upon the payment of compensation. In other words, it is entitled to the protection of the Constitution, and in the precise manner in which protection is given. It can only be taken by the exercise of the powers of eminent domain."

See, also, Northern Pacific Ry. Co. v. North American Teleg. Co. (C. C. A. 8) 230 F. 347, 349, 350, L. R. A. 1916E, 572.

The courts of the several jurisdictions in this country are not in accord on the question of the right of an adjoining owner to use land taken by a railroad company for right of way purposes. In some jurisdictions, it is held that the owner of the servient estate in land over which the railroad owns a right of way may use such land in any manner which does not interfere with its use for railroad purposes. 33 Cyc. 190; 22 R. C. L. § 113, p. 862. The decisions of the national courts and of a majority of the state jurisdictions, however, are to the effect that the railroad company is entitled to the exclusive use and possession of its right of way, and that the owner of the servient estate has no right to occupy the surface of the land conveyed for right of way, in any mode, or for any purpose, without the railroad company's consent. Cairo, V. & C. Ry. Co. v. Brevoort (C. C.) 62 F. 129, 25 L. R. A. 527; Wright v. St. Louis S. W. Ry. Co. (C. C.) 175 F. 845; Chicago Great Western R. Co. v. Zahner, 145 Minn. 312, 177 N. W. 350; Paxton v. Yazoo & M. V. R. Co., 76 Miss. 536, 24 So. 536; Wilmot v. Yazoo & M. V. R. Co., 76 Miss. 374, 24 So. 701; Hayden v. Skillings, 78 Me. 413, 6 A. 830; Troy & B. R. Co. v. Potter, 42 Vt. 265, 1 Am. Rep. 325; Jackson v. Rutland & B. R. Co., 25 Vt. 159, 60 Am. Dec. 246; Pittsburgh, C. & St. L. R. Co. v. Jones, 86 Ind. 496, 44 Am. Rep. 334; New York, N. H. & H. R. Co. v. Armstrong, 92 Conn. 349, 102 A. 791; Illinois Cent. R. Co. v. Houghton, 126 Ill. 233, 18 N. E. 301, 1 L. R. A. 213, 9 Am. St. Rep. 581; Pittsburgh, Ft. W. & C. Ry. Co. v. Peet, 152 Pa. 488, 25 A. 612, 19 L. R. A. 467; Central of Georgia Ry. Co. v. Faulkner (Ala. Sup.) 114 So. 686.

In Chicago Great Western R. Co. v. Zahner, supra, the court said:

"The trial court held that the defendant might...