Union Coal & Coke Co. v. United States

• Decision Date: 05 November 1917
• Docket Number: 4844.
• Citation: 247 F. 106
• Parties: UNION COAL & COKE CO. v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

247 F. 106

UNION COAL & COKE CO. v. UNITED STATES.

No. 4844.

United States Court of Appeals, Eighth Circuit.

November 5, 1917

W. W Anderson, of Denver, Colo., for plaintiff in error.

Eugene B. Lacy, Asst. U.S. Atty., of Denver, Colo. (Harry B. Tedrow U.S. Atty., of Denver, Colo., on the brief), for the United States.

Before CARLAND, Circuit Judge, and AMIDON and MUNGER, District Judges.

CARLAND Circuit Judge.

This is an action by the United States to recover from the Coal Company the value of certain coal lands situated in Colorado to which it is alleged the Coal Company fraudulently obtained title by conspiring with certain individuals to make coal land entries for its benefit, when it had already received the benefit of sections 2347-2351, R.S.U.S. (Comp. St. 1916 Secs. 4659-4663), authorizing the disposal of public coal lands.

We agree with the trial court that the undisputed evidence showed that coal land entry No. 313, made February 3, 1903, in the name of William F. Oakes, for lots 1 and 2, section 19, township 29 S., range 65 W., containing 84.4 acres, for which patent issued June 26, 1903, was made by Oakes for the benefit of the Coal Company. We are also satisfied that the same is true as to the subsequent entry of Westlake. The squier entry becomes immaterial, as no recovery was had in regard to that. The other questions in the case are questions of law. The demurrers to the complaint were properly overruled. If the Coal Company desired the pleader to specify in what respect it was not qualified to enter, purchase, or hold coal lands, it should have made a motion to that effect, as a demurrer was not the proper remedy.

The trial court ruled that, although the Coal Company was entitled under sections 2347 and 2348, R.S.U.S., to 320 acres of coal land, it could make but one coal land entry, and that if, in making this entry, it did not claim the amount of coal land to which it was entitled, nevertheless it could not make a subsequent coal land entry. We think this ruling was right in view of section 2350, R.S.U.S., which reads in part as follows:

'The three preceding sections shall be held to authorize only one entry by the same person or association of persons; and no association of persons any member of which shall have taken the benefit of such sections, either as an individual or as a member of any other association, shall enter or hold any other lands under the provisions thereof; and no member of any association which shall have taken the benefit of such sections shall enter or hold any other lands under their provisions.'

It is not contended that Westlake could not enter coal lands for the Coal Company in the absence of evasion as to quantity (United States v. Colorado Anthracite Co., 225 U.S 219, 32 Sup.Ct. 617, 56 L.Ed. 1063), but that the Coal Company, having received the benefit of the entry made by Oakes, could not make another entry either itself or by an agent. There is nothing in the case cited opposed to this view. The restriction to one entry found in section 2350, supra, must be given full effect. To decide that an individual or an association could make several coal land entries, provided the total amount of land filed upon did not exceed the maximum allowed by the statute, would be to read out of section 2350 the words 'only one entry.' United States v. Keitel, 211 U.S. 370-388,...