United States v. Midway Northern Oil Co.

• Decision Date: 01 May 1916
• Docket Number: A-13,47,A-30.,A-2,A-3,A-31,
• Citation: 232 F. 619
• Parties: UNITED STATES v. MIDWAY NORTHERN OIL CO. et al. (and five other cases).
• Court: U.S. District Court — Southern District of California

232 F. 619

UNITED STATES

v.

MIDWAY NORTHERN OIL CO. et al. (and five other cases).

Nos. 47, A-2, A-3, A-13, A-31,, A-30.

United States District Court, S.D. California.

May 1, 1916

[Copyrighted Material Omitted]

Case No. 47:

A. E Campbell and Frank Hall, Sp. Asst. Attys. Gen., for the United States.

Pillsbury Madison & Sutro, of San Francisco, Cal., for defendant Standard Oil Co.

A. L. Weil, of San Francisco, Cal., for defendants Waite and others.

George E. Whitaker, of Bakersfield, Cal., and Frank H. Short, of Fresno, Cal., for defendants Lowell and others.

Walter F. Haas, of Los Angeles, Cal., for defendant Maricopa Northern Oil Co.

W. A. Sutherland, of Fresno, Cal., for defendant Miocene Oil Co.

Matthew S. Platz, of Bakersfield, Cal., for defendant Francis.

Case No. A-2:

A. E. Campbell and Frank Hall, Sp. Asst. Attys. Gen., for the United States.

James P. Sweeney, of San Francisco, Cal., for defendant Maricopa Oil co.

A. L. Weil, of San Francisco, Cal., for defendants Maricopa Consol. Oil Co. and others.

George E. Whitaker, of Bakersfield, Cal., for defendants Midnight Oil Co. and others.

Pillsbury, Madison & Sutro, of San Francisco, Cal., for defendant Standard Oil Co.

Case No. A-3:

A. E. Campbell and Frank Hall, Sp. Asst. Attys. Gen., for the United States.

Andrews, Toland & Andrews, of Los Angeles, Cal., for defendant Union Oil Co.

James P. Sweeney, of San Francisco, Cal., for defendants Miocene Oil Co. and others.

A. L. Weil, of San Francisco, Cal., for defendants American Oilfields Co. and others.

George E. Whitaker, of Bakersfield, Cal., for intervener Coons.

Pillsbury, Madison & Sutro, of San Francisco, Cal., for defendant Standard Oil Co.

Case No. A-13:

A. E. Campbell and Frank Hall, Sp. Asst. Attys. Gen., for the United States.

A. L. Weil, of San Francisco, Cal., for defendants Midlands Oilfields Co. and others.

Andrews, Toland & Andrews, of Los Angeles, Cal., for defendant Union Oil Co.

Case No. A-31:

A. E. Campbell and Frank Hall, Sp. Asst. Attys. Gen., for the United States.

Edmund Tauszky, of San Francisco, Cal., for defendant Associated Oil Co.

C. Del Bondio, of Taft, Cal., for defendants Beers and others.

Case No. A-30:

A. E. Campbell and Frank Hall, Sp. Asst. Attys. Gen., for the United States.

A. L. Weil, of San Francisco, Cal., for defendants Midlands Oil-fields Co. and others.

Andrews, Toland & Andrews, of Los Angeles, Cal., for defendant Union Oil Co.

BEAN District Judge (sitting by special assignment).

These cases involve closely related questions, were heard together, and it will be convenient to likewise dispose of them, noticing in the course of the opinion wherein they differ, if at all. They are suits in equity brought by the government for decrees that the several tracts of land particularly described in the bills, together with the mineral contents thereof, are the property of the United States, free from all claims of the defendants, or any of them, and for an injunction restraining the defendants from trespassing thereon or extracting the oil therefrom, and an accounting for oil heretofore extracted and disposed of.

The lands in controversy are mineral (petroleum) lands of the United States situate in the Maricopa oil fields in California. They are included in presidential order of September 27, 1909, temporarily withdrawing all public lands, without particular designation, within an area of about 3,000,000 acres, the larger part of which was privately owned, 'from all forms of location, settlement, selection, filing, entry, or disposal,' under the mineral laws of the United States, 'in aid of proposed legislation affecting the use and disposition of the petroleum deposits in the public domain. ' This order, which was subsequently ratified and confirmed on July 2, 1910, subject to the provisions, limitations, exceptions, and conditions contained in the act of Congress approved June 25, 1910 (36 Stat. 847), was held in all respects valid by the Supreme Court in February, 1915, in U.S. v. Midwest Co., 236 U.S. 459, 35 Sup.Ct. 309, 59 L.Ed. 673. No discovery of oil had been made on any of the lands at the date of the first withdrawal order, nor was any one in possession thereof at that time actually engaged in work looking to a discovery. In suits 47, A-2, A-3, and A-30 sundry parties had, prior thereto, posted on the land involved in each of the suits and caused to be recorded a notice claiming a location of the land as a petroleum placer mining claim under the mining laws of the United States, but no discovery of oil had been made or any work done thereon, except some so-called assessment work, which consisted in excavating sump holes, building small cabins, and the erection of a couple of derricks on one of the tracts, which derricks were never used or equipped for drilling, but were subsequently taken down and removed to other parts of the premises. After the first withdrawal order, parties claiming as lessees of the so-called locators in the four cases referred to, and in the other two without any previous notice of location, commenced drilling operations in each of the tracts involved in the fall of 1909 or early in 1910, and continued thereafter until the discovery of oil, which they were extracting and disposing of when these suits were commenced against the parties in possession, the so-called locators, the purchasers of the oil, and others.

The bills set out the title of the government, the character of the land, the withdrawal orders, the entry of the defendants in violation thereof, and allege that they are in possession of the property, and extracting the oil therefrom, and disposing of it, to the irreparable damage of the plaintiff. The bills pray for injunctions, decrees, and accounting, as stated. The defendants admit government's title, but assert the right of the locators and the operating companies to the possession of the properties, and to extract and dispose of the oil, under the mining laws of the United States and the act of Congress of June 25, 1910.

In case No. 47 a preliminary question as to the right of the court to consider it on the merits requires attention. On June 1, 1914, a decree was entered dismissing the suit; the court (Judge Dooling) holding that the withdrawal order of September 27, 1909, was invalid for want of authority in the President to make it. On July 1st following, and within the term, an ex parte order was made by him permitting a petition to rehear to be filed by the government; 'the hearing thereon and the decision of the questions therein to be presented to be had upon 10 days' notice, to be issued by the parties or their counsel of record, at a time and place to be fixed by the court. ' The petition was not served on the defendants, nor any show cause order made. Subsequently, and after the decision in the Midwest Case and after the expiration of the term in which the decree was rendered, the court allowed the petition to rehear, vacated its former decree of dismissal, and reinstated the case, without, as far as the record shows, notice to the defendants or their counsel. The decree of dismissal is pleaded in bar, and it is urged that the order granting the rehearing is void for want of jurisdiction, because made after the expiration of the term at which the decree was rendered and without notice. After a term has ended, all final judgments and decrees of the court pass beyond its control, unless steps be taken during that term, by motion or otherwise, to set aside, modify, or correct them. Bronson v. Schulten, 104 U.S. 410, 26 L.Ed. 797; Wetmore v. Karrick, 205 U.S. 141, 27 Sup.Ct. 434, 51 L.Ed. 745; In re Metropolitan Trust, 218 U.S. 312, 31 Sup.Ct. 18, 54 L.Ed. 1051. But the petition to rehear was filed by permission of the court within the term, and it is settled that, if a petition or motion for rehearing is made in season and entertained by the court, the decree, although entered in form, does not become final or discharge the parties from attendance in the case, and they are bound to follow the petition thus pending to a subsequent term. Equity rule 69 (198 F. xxxviii, 115 C.C.A. xxxviii), 'that no rehearing shall be granted after the term at which the final decree of the court shall have been entered and rendered,' etc., does not apply where a petition to rehear is presented during the term, because the decree of the court does not become final until such petition is disposed of. Giant Pwd. Co. v. Cal. V. Powder Co. (C.C.) 5 Fed. 197; Aspen M. & S. v. Billings, 150 U.S. 31, 14 Sup.Ct. 4, 37 L.Ed. 986.

There is no statute or rule of court of which I am advised requiring a petition to rehear in an equity case to be served on the adverse party unless by order of the court. It is no doubt the better practice, but the failure to do so is not a jurisdictional defect, and does not destroy the efficacy of a petition filed by the consent and in pursuance of an order of the court. Whether it was error to vacate the former decree without formal notice to the defendants does not go to the sufficiency of the decree as a bar. At most it was an error or irregularity in the course of the proceedings in a matter over which the court had jurisdiction, and which I do not feel called upon to consider at this time. The plea in bar will therefore be overruled and denied.

No location of a mining claim, valid as against the government can be made until the discovery of mineral within the limits of the claim. R.S. Secs. 2320, 2329 (Comp. St. 1913, Secs. 4615, 4628). Discovery and appropriation are the sources of title. Posting a notice on public land claiming the same as a mining claim, recording such notice, and doing so-called assessment work, without first making a...