United States v. Price

• Decision Date: 08 April 1940
• Docket Number: No. 1964.,1964.
• Citation: United States v. Price, 111 F.2d 206 (10th Cir. 1940)
• Parties: UNITED STATES v. PRICE et al.
• Court: U.S. Court of Appeals — Tenth Circuit

111 F.2d 206 (1940)

UNITED STATES v. PRICE et al.

No. 1964.

Circuit Court of Appeals, Tenth Circuit.

April 8, 1940.

Robert H. Fabian, of Washington, D. C. (Norman M. Littell, Asst. Atty. Gen., William D. Donnelly, Sp. Asst. to the Atty. Gen., and Charles R. Denny, Jr., of Washington, D. C., on the brief), for appellant.

Carl H. Gilbert, of Santa Fe, N. M., and William C. Liedtke, of Tulsa, Okl. (M. W. Hamilton, of Santa Fe, N. M., James B. Diggs, Russell G. Lowe, Redmund S. Cole, C. L. Billings, and James B. Diggs, Jr., all of Tulsa, Okl., and J. D. Atwood and R. L. Malone, Jr., both of Roswell, N. M., on the brief), for appellees.

Before PHILLIPS, BRATTON, and HUXMAN, Circuit Judges.

BRATTON, Circuit Judge.

This is a suit instituted by the United States in January, 1939, against Charles H. Price, Sidney C. Walker and Charles Alves, as trustees, and The Gulf Oil Corporation. It was alleged in the complaint that in December, 1918, Winfred J. May made additional stock-raising homestead entry under the Act of December 29, 1916, 39 Stat. 862, 43 U.S.C.A. § 291 et seq., upon 320 acres of land located in New Mexico; that under such act the entryman was entitled upon compliance with the provisions of law to a patent conveying only the surface of the land, the coal and other minerals being reserved; that in October, 1919, final certificate duly issued, containing an endorsement that the patent to be issued should contain a reservation of the minerals as provided in the act; that in February, 1920, the patent issued, but inadvertently failed to contain such reservation and also failed to make reference to the act under which such minerals were reserved; that the issuance of the patent, to the extent that it purported to convey the minerals, was unauthorized and a nullity; that it clouded the title of the United States to the minerals; that through mesne conveyances the trustees owned title to the surface, and The Gulf Oil Corporation made claim under a purported drilling lease to the mineral rights. Copies of the application, the final certificate and the patent were attached to the complaint and made parts of it. The prayer was that the title of the United States to the mineral rights be confirmed and established, and for general relief. The defendants moved to dismiss the action on the ground (1) that the complaint failed to state a claim upon which relief could be granted, and (2) that it appeared from the face of the complaint that the action was one to vacate and annul a patent, insofar as it covered the minerals, and that such action was barred by section 8 of the Act of March 3, 1891, 26 Stat. 1093, 43 U.S.C.A. § 1166. The court sustained the motions; the government announced its declination to plead further; and the action was dismissed.

The Act of May 20, 1862, 12 Stat. 392, 43 U.S.C.A. § 161 et seq., commonly called the Original Homestead Act, provides that any person therein described is authorized to make homestead entry upon not more than 160 acres of unappropriated public land, and that upon compliance with the terms of the act in respect of residence, and otherwise, he shall be entitled to a patent conveying such land. The Act of February 19, 1909, 35 Stat. 639, 43 U.S. C.A. § 218, commonly called the Enlarged Homestead Act, provides that any person who is a qualified entryman under the homestead laws may enter 320 acres or less of nonmineral, nonirrigable, unreserved and unappropriated public land located in certain states, including New Mexico, provided that no land shall be subject to entry thereunder until the Secretary of the Interior shall have designated it as being insusceptible of successful irrigation at a reasonable cost from any known source of water supply. And the Act of December 29, 1916, 39 Stat. 862, 43 U.S.C.A. § 291 et seq., commonly called the Stock-Raising Homestead Act, provides that any person qualified to make entry under the homestead laws may make a stock-raising homestead entry for not to exceed 640 acres of unappropriated unreserved public land in reasonably compact form, provided, however, that the land so entered shall have been designated by the Secretary of the Interior as stock-raising lands; that the Secretary shall designate as stock-raising lands subject to entry, lands which in his opinion are chiefly valuable for grazing and raising forage crops, which do not contain merchantable timber, which are not susceptible of irrigation from any known source of water supply, and which are of such character that 640 acres are reasonably required for the support of a family; that a former entry of land of such character shall not be a bar to the entry of a tract within a radius of twenty miles from the former entry, which together with the former tract shall not exceed 640 acres; and that all entries made and patents issued under such act shall be subject to and contain a reservation to the United States of all coal and other minerals in the lands entered and patented. Thus patents issued under the original act and those issued under the enlarged act convey the minerals. But not so with those issued under the stock-raising act. Entries made and patents issued under it shall be subject to and contain a reservation of the minerals.

The government does not contend that this patent should be annulled or modified, or that a trust should be impressed upon the mineral rights. Its contention, stated in the court below and renewed here, is that the patent should be construed as not having conveyed the minerals. It is urged that the application to make entry, the final certificate, and other data in the General Land Office showing that the entryman had exhausted all of his homestead rights except under the stock-raising act, all disclose an intention to proceed and acquire title under that act; that the terms of the act with which a patentee complies and under which he intends to acquire title governs, even though the patent contains provisions derived from another statute; and that therefore the terms of the stock-raising act reserving the mineral rights must prevail over the recitals contained in the patent. It is from that basic standpoint that reversal of the judgment is urged. But can the court in a case of...