Richardson v. Midwest Refining Co.

• Decision Date: 11 September 1928
• Docket Number: 1480
• Parties: RICHARDSON v. MIDWEST REFINING CO. [*]
• Court: Wyoming Supreme Court

270 P. 154

39 Wyo. 58

RICHARDSON v. MIDWEST REFINING CO. ^[*]

No. 1480

Supreme Court of Wyoming

September 11, 1928

Rehearing Denied November 21st, 1928.

APPEAL from District Court, Natrona County; BRYANT S. CROMER, Judge.

Action by C. C. Richardson against the Midwest Refining Company. Judgment for defendant, and plaintiff appeals.

Affirmed.

George W. Ferguson, for appellant.

Defendant's amended answer states no defense; plaintiff's claims are based on the Stockraising Homestead Act, U.S.C. S. 4587, a-k defendant's claims are based on the Oil Pipe Line Act U.S.C. S. 4949-4952; a pipe line right-of-way has a limited fee, Railway Co. v. Stringham, 239 U.S. 44; Jamestown R. R. Co. v. Jones, 177 U.S. 125; Ry. Co. v. Steinke, 261 U.S. 119; plaintiff having made final proof, as devisee of Smith, acquired full rights of deceased entryman; Demars v. Hickey, 13 Wyo. 371; Instructions, 9 L. D. 452; Chapman v. Price, (Kan.) 4 P. 807; Bernier v. Bernier, 147 U.S. 242; McCune v. Essig, 199 U.S. 382; the rights of Frank J. Smith are prior and superior to those claimed by defendant, as shown by the language of the Act, 47 L. D. 150; Ry. Co. v. Joslin 49, L. D. 405; Townsend, et al. 49 L. D. 440; Shepley v. Cowan, 91 U.S. 330; Whitney v. Taylor, 158 U.S. 85; R. R. Co. v. Sanders, 166 U.S. 620; R. R. Co. v. Musser-Sauntry Co., 168 U.S. 604; Weyerhausser v. Hoyt, 219 U.S. 380; R. R. Co. v. McComas, 250 U.S. 387; plaintiff holds the patent for the land in controversy with reservations.

Frederick D. Anderson, A. C. Campbell, John B. Barnes, Jr., and Kent S. Whitford, for respondent.

Respondent acquired a right of way under the Oil Pipe Line Act prior to the issuance of the patent to Smith, R. R. Co. v. Whitney, 132 U.S. 357; R. R. Co. v. Dunmeyer, 133 U.S. 629; Whitney v. Taylor, 158 U.S. 85; Frisbie v. Whitney, 9 Wall. 187. A stock-raising homestead entryman has no right of possession until after designation, Rex Cochran, 48 L. D. 289; Instructions, 48 L. D. 293; Camp v. Benson, 48 L. D. 451; the doctrine of relation depends upon some antecedent right, McCurdy v. U.S. 264 U.S. 484; here the homestead applicant has no antecedent right, State of Wyo. v. U.S. 255 U.S. 498; Payne v. New Mexico 255 U.S. 367; there is no title until the issuance of patent, Martyn v. Olsen, (N. D.) 148 N.W. 834; Towner v. Rodegeb, (Wash.) 74 P. 50; Harris v. Lyon, (Ariz.) 140 P. 985; the Oil Pipe Line Act is a grant in praesenti, ch. 212, 29 Stat. L. 127; R. R. Co. v. Jones, 177 U.S. 125; Noble v. Co. 147 U.S. 165; Stocker v. Oregon Short Line, 225 U.S. 142; a definite location is made by construction of a road, Van Dyke v. R. R. Co., 248 U.S. 49; granting of right-of-way over state land is held not to be a sale or disposal, Ross v. Trustees, (Wyo.) 228 P. 642; failure of reservation of pipe line rights in patent cannot be construed as conclusive of the rights of parties, R. R. Co. v. Stringham, 239 U.S. 44; respondents, constructing two pipe lines across the lands in controversy, thus accepted the grant; the validity of its title can only be questioned in a direct proceeding by the Government, Knevals v. Hyde, 6 F. 651; Gallup v. R. R. Co., 295 F. 326; Noble v. R. R. Co. 147 U.S. 165; R. R. Co. v. Baldwin, 103 U.S. 426; respondent's rights exist independent of plaintiff's homestead right, R. R. Co. v. Steinke, 261 U.S. 119; the statute of limitations applies, 6559 C. S., and is pleaded in defendant's answer; at most plaintiff could recover only nominal damages and the cause could not be reversed for that purpose, Martel v. Hall Oil Co., (Wyo.) 253 P. 862. The judgment should be affirmed.

George W. Ferguson, in reply.

When an entryman complies with all conditions required, he acquires inchoate rights, irrespective of the issuance of a certificate of entry, 32 Cyc. 806; Ard v. Brandon, 156 U.S. 537; R. R. Co. v. Roy, 173 U.S. 587; the case of Hastings-Whitney, 33 L.Ed. 363, involved different circumstances, being a controvery between a homesteader and a railroad grant claimant; the case of McCurdy v. U.S., 68 L.Ed. 801, bears out the theory of plaintiff that no burden can be placed on the land to deprive applicant, or his devisee, of an unincumbered fee therein. The patent was without reservation and cannot be collaterally attacked, Noble v. Union etc. Co., 37 L.Ed. 123; a general examination of the authorities cited by defendant, we believe, will show that they are not applicable to the facts in the present case.

RINER, Justice. BLUME, C. J., and KIMBALL, J., concur.

OPINION

RINER, Justice.

The action in which the record was made which is now before us on direct appeal was one instituted by plaintiff and appellant, hereinafter referred to as the "plaintiff" against the defendant and respondent, mentioned subsequently herein as the "defendant," to recover alleged damages in the District Court of Natrona County, Wyoming. Plaintiff's amended petition, after alleging his residence in Natrona County, in this state, the corporate existence of defendant under the laws of the State of Maine, with due authority to operate in Wyoming, his ownership in fee and right to the exclusive peaceable possession of the West 1/2 of the NE 1/4 of Section 21, T. 34, R. 79 West of the 6th P. M., sets out that on March 1, 1917, one Frank J. Smith made application through the United States Land Office at Douglas, Wyoming, to file on this land as a stock-raising homestead, as provided by the Act of Congress approved December 2, 1916 (39 St. at L. 862); that the application being granted on December 20, 1919, the law governing such entries having been duly complied with, patent was issued by the United States to the heirs and devisees of the said Smith on January 19, 1924, he having previously to that date died. It is also alleged by plaintiff that he, as sole devisee under Smith's will, became and is the sole owner of the land aforesaid, but notwithstanding this, defendant has unlawfully entered upon and taken possession of a strip of ground about one hundred feet wide extending across Section 21 already mentioned, in a northeasterly direction from a point east of the southeast corner thereof to its north boundary east of the northwest corner of the section, and containing about twelve acres; that upon this strip of ground the defendant has, without right, title or interest in the land, constructed and maintains through its agents oil and gas carrying pipe lines, all to the damage of plaintiff, for which recovery is prayed in the sum of $ 3,000.

Defendant's amended answer embraces four separate defenses, the first of which put in issue plaintiff's claim to the exclusive fee simple title to the land in controversy, and averred that the strip of land entered upon and possessed by it, as alleged by plaintiff, is held by defendant through a limited fee title thereto and that the patent issued to Smith's heirs and devisees by the United States is subject to such title. Its second defense pleads defendant's affirmative claim of title by reason of three separate right-of-way locations, each undertaken to be initiated under the Act of Congress approved May 21, 1896 (29 St. at L. 127); the same having been initiated and perfected either by it or its predecessors in interest prior to the time the land involved was opened to entry under the stock-raising homestead act on July 7, 1919. The amended answer's third defense is grounded upon an allegation that long prior to the plaintiff's acquiring any interest in the strip of land in question, the oil and gas carrying pipe lines had been constructed, while the fourth defense thereof pleaded the four years' Statute of Limitations in this state governing actions for trespass upon real property.

Plaintiff's reply denies generally the allegations contained in the defendant's amended answer.

The cause was tried before the court with a jury in attendance. Upon the conclusion of the introduction of evidence for both parties, upon defendant's motion, a verdict in its favor was directed by the court and thereon judgment was duly entered that plaintiff take nothing by his action and that defendant recover its costs. It is from this judgment plaintiff has prosecuted these proceedings for review.

The proofs introduced by the parties to the record stand undisputed so far as they disclose what they and their predecessors in interest did under certain Public Land Laws of the United States to establish their respective claims of title to this strip of land in dispute. The vital issue on the trial, then necessarily was as to the legal consequences of what was thus done. This calls for construction of several of the public land laws of the United States as applied to the uncontroverted facts before us. The argued assignments of error are all, except one, aimed at this phase of the case. The excepted assignment relates to the action of the trial court in overruling a challenge for cause to a proposed juror, interposed at the inception of the trial, but as the jury's verdict was an instructed one, the error, if error there was, a point not necessary to decide, was harmless. There seems to have been some conflict in the proofs as to the amount of damages, though even this appears to be not very serious.

The controlling facts, as we find them in the record, appear to be these: On January 11, 1911, Articles of Incorporation of the Casper-Salt Creek Oil Refining and Pipe Line Company were filed in the office of the Secretary of State of Wyoming. On February 11, 1911, the Midwest Oil Company was incorporated under the laws of Arizona, and on the 18th of that month, it filed a certified copy of its articles of incorporation with the Secretary of State of Wyoming, as required by the laws of this state to enable a foreign corporation to transact business therein....