Olive Land & Development Co. v. Olmstead

• Decision Date: 09 July 1900
• Citation: 103 F. 568
• Court: U.S. District Court — Southern District of California
• Parties: OLIVE LAND & DEVELOPMENT CO. v. OLMSTEAD, et al.

103 F. 568

OLIVE LAND & DEVELOPMENT CO. v. OLMSTEAD, et al.

United States Circuit Court, S.D. California.

July 9, 1900

Edwin A. Meserve and Shirley C. Ward, for complainant.

M. W Conkling, for defendants.

ROSS Circuit Judge.

The act of congress of June 4, 1897, entitled 'An act making appropriations for sundry civil expenses of the government for the fiscal year ending June thirtieth, eighteen hundred and ninety-eight, and for other purposes, ' contains among other things, various provisions in respect to forest reservations, commencing with the declaration that:

'No public forest reservation shall be established, except to improve and protect the forest within the reservation, or for the purpose of securing favorable conditions of water flows and to furnish a continuous supply of timber for the use and necessities of the citizens of the United States but it is not the purpose or intent of these provisions, or of the act providing for such reservations, to authorize the inclusion therein of lands more valuable for the mineral therein or for agricultural purposes than for forest purposes, '-- and including this provision: 'That in cases in which a tract covered by an unperfected bona fide claim, or by a patent, is included within the limits of a public forest reservation, the settler or owner thereof may, if he desires to do so, relinquish the tract to the government and may select in lien thereof a tract of vacant land open to settlement not exceeding in area the tract covered by his claim or patent; and no charge shall be made in such cases for making the entry of record or issuing the patent to cover the tract selected; provided further, that in cases or unperfected claims the requirements of the laws respecting settlement, residences, improvements and so forth are complied with on the new claims, credit being allowed for the time spent on the relinquished claims.' 30 Stat. 11, 35, 36.

The present is a suit in equity to quiet the complainant's alleged title to lots 1 and 5 of the fractional N.W. 1/4 of section 4, township 4 N., range 18 W., San Bernardino base and meridian, situated in Ventura county, Cal., alleged to have been acquired by the complainant's predecessor in interest, one J. R. Johnston, who is alleged to have selected the land under the above provisions of the act of June 4 1897, in exchange for patented land within a forest surrendered by said Johnston to the government. The bill includes a prayer for an injunction enjoining the defendants from the commission of their alleged unlawful threatened acts of entering upon the lands in controversy and boring for and extracting any oil that may be found therein. Upon reading the bill an order was made requiring the defendants to show cause why an injunction should not be granted as prayed for by the complainant, and why the temporary restraining order granted by the court should not be continued pending the litigation. In response to the order to show cause the defendants appeared and filed a demurrer to the bill, as also a verified answer thereto. The complainant, claiming that the answer raised no material issue of act, moved for judgment on the pleadings, which motion was, by the stipulation of counsel for the respective parties, heard with the demurrer and the order to show cause. From the pleadings it appears that on the 20th day of January, 1900, Johnston was the owner in fee simple, free of any lien or incumbrance, of lot 2 in section 5 of township 4 N., range 15 W., San Bernardino base and meridian, situated in Los Angeles county, Cal., and within the limits of a public forest reservation, containing 36.81 acres, which land was then and still is a non-mineral tract, covered by patent issued by the United States; that on the 22d day of May, 1900, lot 1 of the fractional N.W. 1/4 of section 4, township 4 N., range 18 W., S.B.M., containing 26.40 acres, and lot 5 of the fractional N.W. 1/4 of said section 4, containing 10.41 acres, aggregating 36.81 acres, were, and for more than one year continuously theretofore had been, surveyed, unappropriated, and (unless otherwise shown by facts hereinafter stated) vacant public land of the United States, returned and characterized upon the official records of the United States as nonmineral land, free and open to entry and settlement under the laws of the United States, and did not then and does not now contain any known mines, salines, or minerals, petroleum, or mineral oil; that on January 20, 1900, Johnston, desiring to avail himself of the benefits of the above-mentioned act of congress, relinquished and conveyed the two tracts of which he was so the owner to the United States, and recorded the deed in the office of the recorder of the county in which the lands are situated, and on the 22d of May, 1900, filed with the register and receiver of the United States land office at Los Angeles, Cal., the said deed so recorded, together with his selection in lieu thereof of the two tracts first herein described, together with a full, true, and correct abstract of his title to the relinquished lands, duly certified as such by the county recorder of the county in which the lands are situated, showing him to be such owner in fee simple, free of any lien or incumbrance, immediately prior to the time the deed to the United States was made and recorded; that on the said 22d day of May, 1900, the register and receiver of the land office accepted, received, and filed the application of Johnston, and duly entered the same upon the official records of the land office, and the register thereof did then and there certify that the land so selected was free from conflict, and that there was no adverse filing, entry, or claim thereto; and that on the next day, to wit, May 23, 1900, Johnston, by an instrument in writing, sold and conveyed all his right, title, and interest in the selected land to the complainant. The facts thus alleged by the complainant are not denied by the answer of the defendants, except as hereinafter stated, although the legal conclusions alleged by the complainant to flow from them are denied. The answer avers that the land in controversy is of no agricultural value, and of but little, if any, value for grazing purposes, and has no appreciable value for any purpose except for petroleum that may be obtained by boring or drilling therein; that it is in a well-recognized petroleum-producing belt, and that adjacent properties in the belt are actually producing petroleum in large and profitable quantities, and that the surface indications of such producing lands and upon the lands in controversy are the same; that the surface rock and sand and the surface geological formation and stratification upon the lands in controversy are such as would lead any experienced petroleum expert or any practical geologist familiar with petroleum-bearing lands in California to pronounce the same oil or petroleum territory, and chiefly valuable therefor; that one of the most pronounced and well-marked anticlinal folds of sandstone and shale formation in Ventura county runs through the land in controversy and has its apex thereon, and that where said anticlinal fold is most exposed, by a declivity which sharply cuts the same, bituminous sand several feet in thickness and 100 or more feet long is clearly visible, which sand, when excavated, gives out a distinct odor of petroleum; that such bituminous sand, in the formation in which it is found, shows the land in controversy to be mineral or petroleum in character, and constitutes such a discovery as would justify any prudent petroleum miner in locating the same as petroleum land, and in spending his time and money in developing the same of its petroleum product; that in October, 1899, discovery of bituminous sand in said sandstone and shale formation having been made upon the land in controversy by eight persons, then citizens of the United States, and over the age of 21 years, they did then and there locate the fractional N.W. 1/4 of said section 4, including the lands in controversy, as placer petroleum lands and as a placer petroleum mining claim, under the name of 'La Bonita Oil Claim,' pursuant to the laws of the United States, and did then and there clearly mark and define the boundaries thereof by substantial monuments, so that the corners might be readily found and the boundaries readily traced upon the ground; that thereafter, and prior to May 22, 1900, the said locators, by a written instrument, duly conveyed all their interest in the said mining claim to the defendants to this suit, by virtue of which they allege that they are now the owners of the lands in controversy, and entitled to their exclusive use and possession, and entitled to excavate and to bore and drill thereon for petroleum, and to take therefrom, when found, any petroleum that may be obtained. The answer also alleged that Johnston did not select the lands in controversy for their agricultural or grazing value, or for any purpose, except to obtain thereby the undiscovered petroleum that might be found therein, of all of which the complainant had knowledge, and that the selection by Johnston under the act of congress referred to, for the purpose stated, was fraudulent and in violation of the spirit and purpose of the act of congress under which he pretended to proceed. The defendants assert, both in their answer and in argument, that no title vests under a selection of forest reserve lieu land until patent therefor issues, or until approval of the selection by the commissioner of the general land office, and that until such time such selected land is open to mineral discovery and mineral development, and that, if such discovery and development show the land to more valuable for mineral than agricultural...