Ward v. Humble Oil & Refining Co.

• Decision Date: 15 August 1963
• Docket Number: No. 19488.,19488.
• Citation: 321 F.2d 775
• Parties: Charles L. WARD, Appellant, v. HUMBLE OIL & REFINING CO., Union Producing Co., Alexander F. Chisholm, Stewart L. Udall, Secretary of the Interior, Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

321 F.2d 775 (1963)

Charles L. WARD, Appellant, v. HUMBLE OIL & REFINING CO., Union Producing Co., Alexander F. Chisholm, Stewart L. Udall, Secretary of the Interior, Appellees.

No. 19488.

United States Court of Appeals Fifth Circuit.

August 15, 1963.

A. S. Scott, Jr., Laurel, Miss., for appellant.

M. M. Roberts, Hattiesburg, Miss., William S. Boyd, Jr., Laurel, Miss., Joe A. Thompson, E. L. Brunini, Brunini, Everett, Grantham & Quin, Jackson, Miss., Boyd & Holifield, Laurel, Miss., Ramsey Clark, Asst. Atty. Gen., Roger P. Marquis, George R. Hyde, S. Billingsley Hill, Attys., Dept. of Justice, Washington, D. C., Robert E. Hauberg, U. S. Atty., Edwin R. Holmes, Jr., Asst. U. S. Atty., Jackson, Miss., for appellees.

Before RIVES and CAMERON, Circuit Judges, and BOOTLE, District Judge.

BOOTLE, District Judge.

Appellant claiming to be the owner of surface rights and an undivided one-half oil, gas and other mineral estate in, on and under Lot 17, Section 20, Township 10 N., Range 11 W. second judicial district of Jones County, Mississippi, a tract triangular in shape, lying immediately south of the boundary between Jones and Jasper Counties allegedly containing 11.24 acres and being the only part of Section 20 lying in Jones County, filed his complaint in the district court seeking cancellation, as a cloud upon his title, of a certain oil and gas lease thereon, dated September 1, 1952, executed by the Bureau of Land Management, Department of the Interior, United States Government, which lease is now owned jointly and equally by two of the named defendants, Humble Oil & Refining Company and Alexander F. Chisholm. This lease describes said land as containing 6.24 acres. Appellant named also three other defendants, Union Producing Company, The Secretary of the Interior, and his duly appointed and acting Director, Bureau of Land Management. Service was never attempted upon the Director. By order of the district court, the United States Marshal in Washington, D. C., personally served a copy of the summons and complaint on the Secretary of the Interior in Washington, D. C.

The complaint originally asserted jurisdiction on the basis of diversity of citizenship, but by amendment asserted jurisdiction "by reason that complainant's rights are derived under the constitution and laws of the United States of America in that his claim and right arises under the enactment of the United States Congress of the Swamp and Overflowed Land Grant Act of September 28, 1850, (43 U.S.C.A. § 982 et seq.) and also the Act of the United States Congress known as the McLaurin Act (33 Stat. 1258) and that said Right of Action is for more than Three Thousand ($3,000.00) Dollars, exclusive of interest and cost." The complaint charges the three nonofficial defendants with having committed a trespass and conversion of appellant's property and rights to the oil and gas produced on the leased land and attacks said lease as being ultra vires on the part of the two officials. The appellant prays for cancellation of the lease, an accounting for oil and gas produced, a decree for wilful trespass, damages, including punitive damages and all other proper relief.

The district court, relying upon Mine Safety Appliances Co. v. Forrestal, 326 U.S. 371, 66 S.Ct. 219, 90 L.Ed. 140, entered an order dismissing the cause without prejudice as to the two official defendants, being of the opinion that insofar as the relief was sought against them, the suit was essentially against the United States, and inasmuch as the United States has not consented to be sued in a case of this kind, the suit could not be maintained against its officers, whose challenged actions were taken solely in their official capacities and on behalf of the United States.

The three nonofficial defendants filed their motion to dismiss the action for failure of the complaint to state a claim against them upon which relief could be granted, and their motion to stay the proceedings until a proper party interested on the side of the United States of America should be named a defendant, the United States of America being a necessary and proper party, in that appellant had sought to reach the United States of America and to challenge its rights and authority through the Secretary of the Interior to execute said lease, and said Secretary not being suable in the Southern District of Mississippi. After the court's order dismissing the complaint as to the two official defendants, the nonofficial defendants renewed their attack upon the jurisdiction of the court, urging dismissal of the complaint as to them, urging that the Secretary of the Interior was an indispensable party, and urging also that the Bureau of Land Management then had exclusive jurisdiction over the subject matter of the litigation upon proceedings initiated therein by appellant, which proceedings were still pending, so that appellant had no right to pursue his cause in any court until the administrative remedy had been terminated and his rights therein exhausted. They also filed their motion for summary judgment. This motion for summary judgment was granted by the court. To understand that ruling, we need to examine the contentions of the parties and the evidence adduced in support of the motion.

Appellant claims title under a deed from the tax collector of Jones County to his predecessor in title, dated April 6, 1908. He claims also under two patents, one from the United States to the State of Mississippi, dated April 16, 1858 conveying "Lots 2, 7, 8, 9, 10 and 16 of Section 20, Township 10 N., Range 11 W.", and the other from the State of Mississippi to Jack Ashley, dated April 29, 1882, conveying Lots 2 and 8 of Section 20. On May 20, 1944, appellant and his wife purported to sell and convey to R. E. Smith a one-half undivided mineral interest to the lands in question, which interest Smith later purported to convey to one Garrett who executed a lease thereon, which lease was subsequently assigned to Humble Oil & Refining Co. On August 4, 1947, appellant and his wife executed and delivered to Alexander F. Chisholm an oil, gas and mineral lease covering one-half of the oil, gas and other minerals on and under the land in question. The three nonofficial defendants, with other persons, pursuant to a pooling agreement, are now producing oil from this land. The property started producing about August, 1950, about which time said nonofficial defendants were advised by their attorneys that the property in question had not been divested by patent from the United States of America. Then they, with appellant, sought to cure and perfect the title in all the parties as their interest therein appeared. On June 11, 1954, the State of Mississippi, through its governor, made application to select this property under the Swamp and Overflowed Land Grant Act of September 28, 1850 (9 Stat. 519, 43 U.S.C.A. § 982). This application was rejected upon the grounds that said property, as appeared from the field notes, was "hilly along the line between Section 20 and 29 (a portion of which line forms one of the long sides of the triangular tract in controversy), otherwise level, broken, soil poor, principal growth pine timber", that other available evidence indicated that the soil is a "sandy clay loam of medium fertility further described as rolling sandhills with pine and hardwood reproduction and wild grasses with only slight sheet erosion", and that the state had submitted no satisfactory or substantial evidence to support a finding that the greater part of the land was swamp land and unfit for cultivation on September 28, 1850. It then became apparent to Humble Oil & Refining Co. and Chisholm that to protect their leasehold interest a lease would be necessary from the United States of America. Such lease was acquired September 1, 1952 and is the subject of this dispute.

Prior to the commencement of this action, and on July 22, 1954, appellant filed with the Department of the Interior an application to purchase the disputed property under the Act of December 22, 1928, (43 U.S.C.A. § 1068) as amended by Act of July 28, 1953 as a Class 2 claim.¹ The acting manager, Eastern States Land Office, rejected the application for a Class 2 claim because the certificate of conveyances showed that the land was first conveyed on April 6, 1908, but held that appellant was entitled to establish a preference to purchase said land as a Class 1 claim under which all minerals are reserved to the United States, which decision was appealed to the Bureau of Land Management, Department of the Interior, and affirmed. The decision of affirmance pointed out that appellant first listed on the certificate of conveyances two patents issued by the United States on September 28, 1850 and October 9, 1895, respectively, and that an examination of the Bureau's tract book showed that these two entries are for lands other than the lot in question. Said decision decided further that the conveyance from the State of Mississippi to Jack Ashley on April 29, 1882 for Lots 2 and 8, Section 20, Township 10 N., Range 11 W. did not, as appellant contends, convey the lot in question and that appellant showed no conveyance of the lot in question earlier than the 1908 conveyance; that since his appeal, appellant had advised the Bureau that he was no longer asserting his color of title claim, although he had not requested that his appeal be dismissed; that appellant was not entitled to the benefits of the McLaurin Act of March 3, 1905, (33 Stat., Part 1, 1258) for the reason that persons claiming title from the State of Mississippi pursuant to the McLaurin Act must show that the patent issued by the State for a sale made by the State prior to March 3, 1905 expressly claimed the right to make the sale by virtue of the Swamp and Overflowed Land Grant Act of September 28, 1850 (43 U.S.C.A. 1958 ed. § 983); that appellant had not submitted evidence of a patent issued by the State which...