90 F. 767 | U.S. Circuit Court for the District of West Virginia | 1898
This court lias heretofore disposed of the main questions involved in these cases. 84 Fed. 839. They are now submitted upon the applications of (he receivers for compensation for the services rendered by them; upon the application of George E. Foster for the refunding to him of certain advances made by him to the receivers under orders of the court; and upon exceptions of the Elk Fork Oil & Gas Company and of Receiver Broekunier to the master's report.
Without'making special reference to the testimony or to the arguments of counsel based thereon, I conclude that the receivers are entitled to compensation, and that, under the circumstances applicable to the individual services of each receiver, — keeping in view the time they were respectively employed in the discharge of their duties, as well as the responsibilities they assumed, — an allowance of $200 per month tu McOosh, and of $300 per month to Broekunier, during the time they respectively served as receivers, will be fair to them and just to the parties in interest.
Under certain orders of the court, made on the 13 th of April, 1897, and on the 20th of May of that year, George E. Foster, defendant in one suit and complainant in the other, and also the Elk Fork Oil & Gas Company, complainant in the original suit and defendant in the cross bill, made advances of money and materials to Receiver Brock-unier, to be used by him in the development of the property in controversy; the former to the amount of $28,119.56, and the latter in the sum of .$17,000. Since these advancements were so made, this court has decided the questions relating to the title to the leases in controversy between the different parties to this litigation, and as the result thereof the said Elk Fork Oil & Gas Company has been given the pos
On the 13th of April, 1897, the Elk Fork Oil & Gas Company moved the court for an injunction against Foster, and for the dissolution of an injunction which Foster had obtained from this court on the 6th of April, 1897, against it, which said motions were argued by the counsel of all the parties in interest, and taken under advisement. The court" (Judge JACKSOISI), without passing on those motions, appointed Charles W. Brockunier receiver of the oil and gas rights in the 50 acres of the B. F. Hawkins lease, and the court so acted without any of the parties having asked for the appointment of a receiver. As the case.then stood, the Elk Fork Oil & Gas Company had an injunction (the same having been granted by the circuit court of Tyler county, W. Va., before the case was removed to this court) by which Jennings, Guffey, and others were restrained from taking possession of any part of the land in controversy, and at the. same time Foster had a restraining order which prevented said company from proceeding with the development of the leases, while the operations of adjoining owners were injuring the interests of the true owners of the leases in dispute. Thus, all of the claimants were prohibited from searching for oil, though all of them were insisting on their right so to do, and advising the court that the delay in doing so was most detrimental to their leasehold interests and to the rights of their lessors. It was under these circumstances that the court concluded that it would retain the possession and prosecute the development, under the impartial management of its receiver. It did not then appear to the court— for it was not. then shown by the record — that the Elk Fork Oil & Gas Company was the legal owner of the property; and it is worthy of remark that, without the aid of the evidence subsequently placed in the record, the Elk Fork Oil & Gas Company would not have been entitled to the decree rendered in its favor, for the court couid not have presumed either the forfeiture or the abandonment of the leases given to Johnston, whose assignees were before the court claiming their validity. The said oil company insisted that the Johnston leases were void, because, it is alleged, of the failure of the lessee and those claiming under him to do certain of the material things set forth in, and made part of, the contract of lease. The questions then presented to the court were not matters of law alone, but they were mixed question's
It will not be necessary to further consider the different orders of the court relating to the receivers, extending their jurisdiction over other leases, and providing for the advancements which were made to one of them, as, from the conclusion I have readied, it will be unprofitable to do so. I think it is clear that the advancements were made under the court’s orders and with the understanding between the parlies that the amounts so advanced should be returned to those making them, provided the sales of oil produced from the properly, under the developments authorized hv the court, realized a sum sufficient for that purpose. That also was the evident intention of the court, in which the parties manifestly acquiesced. The fact that Foster lost title to the leases claimed by him is no reason why he should not, under the circumstances of this case, have the advancements made by him refunded, as contemplated by the court’s order. Had the Elk Fork Oil & Gas Company failed in its contention concerning the leases in suit, still it would have been entitled to a decree in its favor for the $17,000 advanced by it to Receiver Brockunier.
It follows from what I have said that the allowances to the receivers wall be paid out of the funds under the control of the court. While it is true that Receiver McCosh was appointed on the motion of defendants .Jennings and Guffey, and that said parties have failed
The exception of Receiver Brockunier to the master’s report is sustained, as the true balance in his hands is $20,588.01, and not $26,819.83, as returned by the master.
The conclusion that I have reached renders it unnecessary for me to consider other questions raised by the exceptions of the Elk Eork Oil & Gas Company to the master’s report, and as I am unable to see how, under the pleadings as they now are, the information asked for and insisted upon by that company can be used in this cause, I shall overrule said exceptions. If either misfeasance or malfeasance is to be insisted upon concerning the conduct of Receiver Brockunier, the charges should be duly filed, and an opportunity given him to reply, after which the case can be referred for the taking of testimony. The matters relating to the allowance of compensation to the counsel for the receivers and the costs connected with the master’s report are reserved for further consideration.