Midland Valley R. Co. v. Jarvis

• Decision Date: 26 November 1928
• Docket Number: No. 8050.,8050.
• Parties: MIDLAND VALLEY R. CO. v. JARVIS et al.
• Court: U.S. Court of Appeals — Eighth Circuit

61 ALR 1064, 29 F.2d 539 (1928)

MIDLAND VALLEY R. CO. v. JARVIS et al.

No. 8050.

Circuit Court of Appeals, Eighth Circuit.

November 26, 1928.

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

George Siefkin, of Wichita, Kan. (Robert C. Foulston, W. E. Holmes, D. W. Eaton, Sidney L. Foulston, and Lester L. Morris, all of Wichita, Kan., on the brief), for appellees.

Edward J. White, Joseph M. Bryson, and E. T. Miller, all of St. Louis, Mo., amici curi?.

Before VAN VALKENBURGH and BOOTH, Circuit Judges.

VAN VALKENBURGH, Circuit Judge.

Appellant, Midland Valley Railroad Company, through lease from the Wichita & Midland Valley Railroad Company, holds the following property by virtue of a right of way deed from L. K. Scroggin, the fee owner at the time said deed was executed:

That portion of a strip of ground in Sumner county, Kansas, 100 feet in width, lying in the southeast quarter of section 14, township 32 south, range 2 east, said strip being 50 feet each side of the center line of said railroad as now located from the south line of said quarter to station 880 of said railroad location, containing 3.13 acres; also an additional irregular plot of ground lying each side of the center line as now located from said station 880 to the north line of said quarter, said plot of land being 200 feet in width at said station 880 and 390 feet wide at the north line of said quarter and contains 7.56 acres; also the east half of blocks 89, 90, and of the out lot 22, containing 5.49 acres ?€” all in the city of Oxford, including in all 16.18 acres.

It seeks in this suit to enjoin appellees from using said right of way for the construction of any building or other structure, and from doing any drilling, constructing any powers, pumps, oil wells, or other things thereon, and, in general, from interrupting or interfering with appellant in any manner in the exclusive use and occupancy of said land for all railroad purposes which are necessary or useful in the operation of the railroad enterprise. The application for temporary injunction was heard upon the bill of complaint and answer. No testimony was taken, and the temporary injunction was refused. The case comes to this court on appeal from that order.

Appellees are lessees of the mineral rights in said lands by virtue of a lease from the heirs of Scroggin, grantor in the right of way deed to appellant. They invoke the rule that a railroad corporation, through right of way deed, does not acquire a fee in the state of Kansas, and that oil, gas, and other minerals beneath the surface belong to the owner of the fee. They contend that the right of a railroad company to the use of its easement is exclusive only to an extent necessary to the safe management and operation of its road. It is asserted that the operations of appellees are conducted at a distance of 100 feet or more from appellant's tracks, as required by chapter 210, ? 1, of the Laws of Kansas for 1905. It is pointed out that a third party, the Roxana Petroleum Corporation, owns the mineral leasehold interest on the adjacent land; that the operations of that company will, if appellees are prevented from operating, draw away the oil deposits from the land now occupied by the railroad company; that appellees have already drilled to a depth of approximately 1,600 feet, at a cost of $8,000; that because of this, if restrained, they will lose, not only the amount expended, but also the value of the oil deposits under the right of way. They invoke the rule that in such case the discretion of a trial court in granting or refusing a temporary injunction will ordinarily not be disturbed, where the issues are made and the case can speedily be determined on its merits.

The railroad company appeals to the general rule that a railroad right of way has, as to its use and enjoyment, the attributes of the fee, including perpetuity and exclusive use and possession. This rule is supported by the overwhelming weight of authority. New Mexico v. United States Trust Co., 172 U. S. 171, 19 S. Ct. 128, 43 L. Ed. 407; Bowers v. Atchison, Topeka & Santa F? R. Co., 119 Kan. 202, 237 P. 913, 42 A. L. R. 228; Western Union Telegraph Co. v. Pennsylvania Railroad Co., 195 U. S. 540-570, 25 S....