United States v. Mid-Continent Petroleum Corporation, 763.

• Decision Date: 01 September 1933
• Docket Number: No. 763.,763.
• Citation: 67 F.2d 37
• Parties: UNITED STATES et al. v. MID-CONTINENT PETROLEUM CORPORATION et al.
• Court: U.S. Court of Appeals — Tenth Circuit

67 F.2d 37 (1933)

UNITED STATES et al. v. MID-CONTINENT PETROLEUM CORPORATION et al.^*

No. 763.

Circuit Court of Appeals, Tenth Circuit.

September 1, 1933.

Jno. M. Goldesberry, U. S. Atty., and Harry Seaton, Asst. U. S. Atty., both of Tulsa, Okl., for the United States.

A. A. Hatch and Gerald B. Klein, both of Tulsa, Okl., and S. L. O'Bannon, E. T. Noble, and A. D. Cochran, all of Okmulgee, Okl., for appellants the Melone Group.

J. M. Springer, of Stillwater, Okl. (David Hervey, of Stillwater, Okl., and Jos. A. Gill, Sr., Jos. A. Gill, Jr., and J. W. Simpson, all of Tulsa, Okl., on the brief), for appellants the Hosey-Guthrie Group.

Jos. C. Stone, of Muskogee, Okl. (Grant Foreman, of Muskogee, Okl., and J. D. Simms, of Wewoka, Okl., on the brief), for appellants the Jesse Group.

John S. Severson, of Tulsa, Okl. (Herbert Smith, of Okmulgee, Okl., on the brief), for appellants the Tolon Group.

Chas. B. Rogers, of Tulsa, Okl. (E. O. Patterson, of Tulsa, Okl., on the brief), for appellants the Edwards-Gambler Group.

Lafayette Walker, of Okmulgee, Okl. (John Caruthers, of Okmulgee, Okl., on the brief), for appellants the Wolf Group.

N. A. Gibson, R. H. Wills, and John Rogers, all of Tulsa, Okl. (J. C. Denton and Jos. L. Hull, both of Tulsa, Okl., on the brief), for appellees.

Before PHILLIPS and McDERMOTT, Circuit Judges, and KENNEDY, District Judge.

PHILLIPS, Circuit Judge.

This suit involves the title to 160 acres of land in Creek County, Oklahoma, which was allotted to Ullie Eagle, a full-blood member of the Creek Tribe of Indians, who died intestate on June 8, 1902. In the trial court fourteen separate groups of parties claimed title to such land, as or through alleged heirs of Ullie Eagle. The primary question presented is, who were her heirs at law.

I. A History of the Litigation.

On November 2, 1923, Harriett Hosey and others, herein referred to as the Hosey Group, brought an action in the district court of Creek County, Oklahoma, against James A. Chapman and others. In their petition, the Hosey Group alleged that such land was allotted to Ullie Eagle; that she died intestate on June 8, 1902; that she left as her sole surviving heir Patience DePriest; that they were the heirs of Patience DePriest and entitled to such land; that the defendants were in possession of such land; that such land was valuable for oil and gas, and that the defendants had appropriated the rents, royalties, and profits arising from such land and from the oil and gas produced therefrom. They prayed for the possession of the land, and for damages and mesne profits in the sum of twenty-five million dollars.

The Guthrie Group, now aligned with the Hosey Group, with leave of court filed a cross-petition in which they alleged that Patience DePriest and John Strickland were all of the heirs of Ullie Eagle, and that the Guthrie Group were entitled to an undivided one-half interest in such land as the heirs of John Strickland. They prayed that they be adjudged the owners of an undivided one-half interest in the land, and have judgment for joint possession with the Hosey Group, and for one half of the damages and mesne profits.

The Melone Group with leave of court intervened and filed an answer and cross-petition in which they alleged that they were the sole heirs of Ullie Eagle, and were the owners of and entitled to the possession of such land. They prayed that they be adjudged the owners of such land, and that their title be quieted as against the Hosey Group, and for general equitable relief.

The Monahwee Group with leave of court intervened and filed an answer and cross-petition in which they set up that they were the heirs of Ullie Eagle and entitled to such land.

The Hosey Group made no objection to the Guthrie, Melone, and Monahwee Groups becoming parties to the action and filing their several cross-petitions. Issues were joined by appropriate pleadings filed by the several parties. These pleadings raised both legal and equitable issues. An accounting for the rents, issues, and profits was sought against the defendants by each of the other groups.

A jury trial resulted in a verdict in favor of the Hosey-Guthrie Group. Under instructions of the court the jury returned an additional verdict for the defendants against the Melone Group. On March 6, 1926, the court set aside the verdict in favor of the Hosey-Guthrie Group, and granted defendants and the Monahwee Group a new trial.

On May 3 and 4, 1926, respectively, the state court entered orders permitting the Holly Lewis Group and the George Washington Scott Group to intervene in the action.

On May 10, 1926, Sally Tolon with leave of court intervened and filed a cross-petition in which she alleged that she was the sole heir of Ullie Eagle, the owner of such land and entitled to the immediate possession thereof; and that the claims of certain parties to the action constituted clouds on her title. She prayed that she be decreed to be the owner of such land and entitled to the possession thereof, and for an accounting for mesne profits.

On June 16, 1926, the defendants filed a motion for an order making the Mid-Continent Petroleum Corporation and the Magnolia Petroleum Company parties defendant, and making certain other named persons claiming title to such land parties to the action, and granting leave to the defendants to file a cross-petition for a determination of the heirs of Ullie Eagle, and for the quieting of the title to such land in the defendants. The court granted the motion.

On the same day the Mid-Continent Corporation and the other defendants filed their cross-petition in which they alleged that Ullie Eagle died intestate on or about June 8, 1902; that such land was selected and allotted to her and patents therefor issued; that the Mid-Continent Corporation was the owner of an oil and gas lease covering 60 acres of such land, and that defendants, Rogers, Faulkner, Stephens, and Long were the owners of such 60 acres subject to such lease; that the Magnolia Company and the Prairie Oil & Gas Company were the owners of oil and gas leases covering the remaining 100 acres of such land, and that Montfort Jones was the owner of such 100 acres subject to such leases; that the plaintiffs and interveners and a large number of other persons were claiming some right, title, interest or estate in and to such land adverse to the defendants; that such claims were unfounded in law and in equity, and constituted clouds upon the title of the defendants, and that such plaintiffs, interveners, and other persons would continue, unless restrained from so doing, to assert such adverse claims to the great and irreparable injury of the defendants, and that the heirs of Ullie Eagle had never been judicially determined. It prayed that the heirs of Ullie Eagle be determined; that the defendants be adjudged to be the absolute owners of such land and entitled to the possession thereof; that their title be quieted, and that the plaintiffs and interveners be enjoined from claiming and asserting any right, title, interest, or estate in such land.

On July 16, 1926, in accordance with section 3 of the Act of Congress of April 12, 1926 (44 Stat. 240), set out in marginal Note¹, the Mid-Continent Corporation and the Magnolia Company executed a notice addressed to the United States and the superintendent of the Five Civilized Tribes in which they set up that the Mid-Continent Corporation and the Magnolia Company on June 16, 1926, had entered their appearance and filed a cross-petition in such cause, and that at least the following named parties defendant or intervener, Katie Harjo, Legus Harjo, Isla Wolf, Katie Sims née Scott, Nepsy Jones née Turk, Lena Johnson, Joseph Johnson, Lizzie Tiger née Gambler, Martin Gambler, Julia Adams, George West, Louina Gray, and Katie Grayson were restricted members of the Five Civilized Tribes of Indians in Oklahoma, and that each of them claimed some right, title, interest, or estate in and to such land; and that such land had been allotted to Ullie Eagle, who was duly enrolled opposite Roll No. 4338 as a member of the Creek Tribe of Indians, and attached thereto a true, complete, and correct transcript and copy of the pleadings on file in the cause. This notice was served on the superintendent by the United States marshal for the Eastern District of Oklahoma on June 22, 1926.

On July 8, 1926, the state court entered an order granting the United States thirty days additional time to petition for the removal of such cause under section 3, supra.

On August 4, 1926, the United States filed its petition to remove such cause, wherein it alleged that on June 16, 1926, the Mid-Continent Corporation and the Magnolia Company had entered their general appearance in such cause and filed a cross-petition; that the following named parties defendant or intervener, Katie Harjo, Isla Wolf, Katie Sims née Scott, Nepsey Jones née Turk, Lena Johnson, Legus Harjo, Lizzie Tiger née Gambler, Martin Gambler, Julia Adams, George West, Katie Grayson, and Louina Gray, were restricted members of the Five Civilized Tribes of Indians, and that each of them claimed some right, title, interest or estate to such land, and that such land had been allotted to Ullie Eagle, a duly enrolled member of the Creek Tribe of Indians; that the action was for ejectment, for the recovery of mesne profits, and to quiet title to such land; that within ten days after their general appearance in such cause the Mid-Continent Corporation and the Magnolia Company had given the notice above referred to; that the same was served on June 22, 1926; that on July 8, 1926, the court had granted an extension of time for the United States to petition the removal of such action, and that the United States desired to have such cause removed to the United States District Court for the Northern District of Oklahoma.

On August 4, 1926, the state court entered an order of removal.

Thereafter the Edwards, Gambler,...