Raydure v. Lindley

• Decision Date: 03 November 1920
• Docket Number: 3389.
• Citation: 268 F. 338
• Parties: RAYDURE v. LINDLEY et al.
• Court: U.S. Court of Appeals — Sixth Circuit

268 F. 338

RAYDURE v. LINDLEY et al.

No. 3389.

United States Court of Appeals, Sixth Circuit.

November 3, 1920

Ed. C O'Rear, of Frankfort, Ky. (W. G. Dearing, of Frankfort Ky., on the brief), for appellant.

A. R Burnam, Jr., of Richmond, Ky., for appellees.

Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges.

DENISON Circuit Judge.

This is the second time this case has been in this court. It involves the conflicting claims of two oil leases covering the same property. The lessee under the junior lease obtained possession. The other lessee, the one under the senior or bottom lease, brought this suit, which was essentially an action of ejectment, although brought upon the equity side of the court in analogy to the Kentucky practice. Upon the former appeal, reported in 249 F. 675, 161 C.C.A. 585, we held that the bottom lease was good, and affirmed the decree by which Raydure had been directed to turn the property over to Lindley. Raydure then filed in the court below a pleading which he called an amended and supplemental answer and cross-bill, in which he asked that he be permitted to remove those items of personalty which he had put upon the property and which were removable, and that he have compensation for his expenses put upon the property in drilling wells, which wells were said to increase the vendible value of the lease by at least as much as they cost. The District Court denied any of this relief to Raydure, and he appeals.

His claim to relief has reference to three classes of items: The first consists of those appliances put upon the surface of the ground and only temporarily and perhaps indirectly attached. Of this class, the wooden tanks standing upon the surface of the ground and not connected thereto, except by piping, may be taken as typical. The second class consists of items more directly attached, but capable of removal without serious injury to the realty. The well casings and the well tubing are both of this class, although they differ in the degree of the facility in which they can be harmlessly removed. The third class consists of the items of expenditure which are represented only by the supposedly improved condition of the leasehold in permanent respects-- as the cost of drilling wells.

The first two classes, for the purpose of this opinion, may be considered together. Under the terms of both top and bottom leases, and by prevailing customs, he had the right as against the lessor to remove all these items; as to some, absolutely, and as to some, with conditions. The theory under which they were held to have passed from the ownership of the lessee who installed them to that of the lessee whose title prevailed is that they had become united to and merged in the leasehold or the operation, and so had lost the character of separable personalty. We do not have occasion to pass upon Raydure's challenge of this theory, because, for the support of this part of the decree below, there is another reason, ample in itself.

In the original case, Lindley's complaint prayed an injunction to prevent Raydure from going upon the premises for the purpose of drilling or removing oil or gas, and from obstructing Lindley in his production of oil and gas therefrom, and also prayed a decree that Lindley be adjudged the exclusive owner of the rights in controversy. This complaint was filed before Raydure had put upon the property any of the items now in dispute. Raydure, by his answer and cross-bill, claimed to be the lawful owner of the rights in question, and that he had the exclusive right at all times to enter said premises for the purpose of drilling, and the exclusive right 'to erect, maintain, operate and remove all buildings, * * * structures, pipe lines, machinery * * * erected upon or placed on said land by him,' and he prayed that his title and possession be quieted. This litigation occupied about a year, during which period Raydure installed the items and incurred the expenses now involved. By the final decree in the case, it was adjudged that Raydure and his employees be perpetually enjoined from--

'extracting any oil or gas or doing any work upon the lands hereinafter described, other than such as may be necessary for the removal of the machinery, equipment and material placed by him thereon which has not been set up or placed upon said lease for use in operating it.'

This was plainly an injunction against the removal of any equipment or material placed by Raydure on the land, which had been set up or placed for use in operation, and the injunction, therefore, reached and covered both the first two classes of items above specified. It was the apparent theory of the decree, as it is of the later order now appealed from, and by analogy to the rights of conflicting claimants in the realty, that any equipment which had been set up or placed for use in operation had become attached to, and merged in, the leasehold interest, and should go along with it to the successful contestant, because it had become a part of the same unit. Not only is this the certain meaning of the decree, but Raydure did not overlook or misunderstand the effect of the decree in this particular. One of his assignments of error upon the former appeal challenged the injunction restraining him from 'removing or in any manner interfering with the machinery or appliances used in drilling for, extracting or storing oil or gas'-- though this assignment was not specifically urged in this court. The effect of the decree in this court was to affirm the decree below in all its parts, and it was not thereafter within the power of the trial court to vacate or modify this injunction in further proceedings in the same cause and based upon substantially the same foundation. Bissell Co. v. Goshen Co. (C.C.A. 6) 72 F. 545, 19 C.C.A. 25; Eastern Cherokees v. U.S., 225 U.S. 572, 582, 32 Sup.Ct. 707, 56 L.Ed. 1212.

It is sought to avoid this situation because a later paragraph of the decree appointed a receiver to hold and operate the property pending the appeal, and provided that Raydure pending the appeal--

'shall not remove any machinery, equipment, or material from the above described leases during the pendency of such appeal, which may be necessary to such receiver in carrying out the order of his appointment.'

It is suggested, rather than urged, that this paragraph made the earlier and absolute injunction contingent upon the further order of the court eventually to be made in the receivership matter. If the two paragraphs were inconsistent, there might be room for this claim; but there is no inconsistency. The decree as a whole recognizes that the equipment and materials, brought upon the premises by Raydure, were at that time of two classes: That which had been placed for use in operation, and that which had not been so placed. The earlier and general injunctional provision did not prevent Raydure from removing the latter class of items. The later paragraph provided that he must not remove even these, if the receiver should need them for his temporary use.

We do not overlook that, as we have construed the decision of the Supreme Court in Messinger v. Anderson, 225 U.S 436, 32 Sup.Ct. 739, 56 L.Ed. 1152 (see Chesapeake Co. v. McKell, 209 F. 514, 516, 126 C.C.A. 336), the appellate court upon a second appeal is not so absolutely bound by its first decision as the law of the case as the trial court would be; but this would not justify us in considering as open on the second appeal a point which, though necessarily involved upon the first appeal, had been waived by the failure to present it, and which had necessarily been covered by the former decree of...