United States v. Moore

• Decision Date: 11 September 1922
• Docket Number: 5635.
• Citation: 284 F. 86
• Parties: UNITED STATES v. MOORE.
• Court: U.S. Court of Appeals — Eighth Circuit

284 F. 86

UNITED STATES v. MOORE.

No. 5635.

United States Court of Appeals, Eighth Circuit.

September 11, 1922

L. K Pounders, Sp. Asst. U.S. Atty., of Bristow, Okl. (C. W Miller, U.S. atty., of Muskogee, Okl., on the brief), for the United States.

Charles B. Mitchell of Miami, Okl. (Seymour Riddle and Dennis H Wilson, both of Miami, Okl., on the brief), for defendant in error.

Before HOOK, Circuit Judge, and COTTERAL and JOHNSON, District Judges.

COTTERAL District Judge.

This action was brought by the United States to recover of James K. Moore $40,061.44, which it is alleged he collected and retained by virtue of an assignment to him by Wattah-nah-zhe (otherwise known as Mrs. Francis Q. Goodeagle), a full-blood Quapaw Indian, of one-half of the royalties to accrue from mining leases executed by her of her restricted allotment of 200 acres, in the Quapaw Indian Reservation, now a part of Ottawa county, state of Oklahoma. It is specified in the petition, filed September 25, 1917, that the allotment was made pursuant to the act of Congress approved March 2, 1895 (28 Stat. 907), by which and her patent, dated September 26, 1896, she was incapable of alienating the land for 25 years, that the assignment of royalties was violative of such restriction, and that the defendant received the royalties from ore production on the land between July 18, 1907, and April 10, 1915, and appropriated the same to his own use.

After unsuccessfully demurring to the petition, the defendant answered, pleading a general denial, incapacity of the government to maintain the action, former adjudications, the payment of royalties after severance of the ores, and statutes of limitation.

The case was tried upon an agreed statement of facts, from a consideration of which the trial court found and rendered judgment in favor of the defendant. A written opinion was filed in which the views of the court were expressed, and authorities were analyzed and distinguished. The agreed statement discloses the facts as follows:

The allotment was made, patent therefor was issued as stated in the petition, and further the allottee never had any right to convey or lease the land except as provided in the act June 7, 1897 (30 Stat. 62). There were two leases. The first was of date, March 31, 1906, to the Baxter Royalty Company of 160 acres, for 10 years, reserving a royalty of 5 per centum. This land was re-leased by the company on July 9, 1907, to Robinson and Harvey, for the period expiring June 13, 1917. The second lease was made to them May 22, 1907, of the remaining 40 acres, for 10 years with the like royalty. On July 18, 1907, the allottee, joined by her husband, executed and delivered for a consideration of $1,000, the receipt of which was acknowledged, an assignment of one-half the royalties to become due and payable to them 'upon all lead, jack, and other ores of whatsoever kind which are, or may be mined upon and sold from' the allotment 'under and by virtue of any and all leases now made and properly recorded and dated on or since May 22, 1907, and executed by first parties hereto, or under and by virtue of any other lease which said first parties may hereafter execute during the life of said lease or leases, not to exceed 10 years from date hereof,' whether the ores should be 'mined by leases of first parties,' or by them in person. It was further stipulated in the assignment that the first parties authorized and directed their lessees and all other persons liable to first parties for royalties to be paid for ore mined and sold to pay one-half thereof 'as same becomes due the first parties' to Moore 'on all moneys received from ores and minerals mined and sold from said lands directly to said second party at the places or place named for payment in said lease.'

At the date of the assignment and payment of the consideration there had been some drilling on the land, some of the holes showed ore, and the defendant did not know of any assays of the cuttings therefrom, but knew they showed ore, 'there was only one foot or so into a light grade of ore,' progress being hampered by water. He never had possession of the land, or took part in the mining operations.

When the royalties first began to accrue the 5 per cent. royalty was paid to the allottee, and she paid the defendant, on July 7, 1907, a sum equal to one-half of the same, upon ores taken and sold, amounting to $3,462.37.

Four suits were brought in the state district court of Ottawa county, Okl. The first was begun July 7, 1909, by the allottee against the defendant for a cancellation of the assignment, resulting in a judgment in favor of the defendant, which was affirmed on appeal by the state Supreme Court. Pending this suit, the Baxter Royalty Company withheld payment of the assigned royalties, and the other lessees Robinson and Harvey deposited at bank in allottee's name the assigned 13, 1911, by the defendant against the allottee, her husband, and the lessees to obtain a judgment in his behalf for the royalties due him, for a discovery and a receiver to hold the funds. The allottee, by answer and cross-petition, sought a cancellation of the assignment. The result was a...