77 F.2d 802 | 5th Cir. | 1935
Lead Opinion
The Stanolind Oil and Gas Company, a Delaware corporation, brought this suit in equity against James V. Allred, Governor of Texas, J. H. Walker, Commissioner of the General Land Office of Texas, John H. Tyler, Eulia B. Tyler, W. D. Twitch ell, W. H. Reed, and Lucille Fields Maloney, all citizens and residents of Texas.
The bill prays for a decree removing the cloud from plaintiffs title, for a temporary injunction restraining the Commissioner and the Governor from issuing an award or patent to the land involved in the controversy, and restraining Tyler from procuring or attempting to procure the issuance of any award or patent covering any part of the land. After a hearing, the District Court issued an order granting an interlocutory injunction, enjoining John H. Tyler, Eulia B. Tyler, and W. II. Reed from taking any steps to obtain an award or patent from the state of Texas covering the land in controversy, upon plaintiff giving bond in the sum of $50,000, and denying the temporary injunction as to the Governor and Commissioner.
The Shell Petroleum Corporation, a Virginia corporation, claiming title to survey No. 102 T. C. R. R. Co., filed a similar bill against the same parties, except Lucille Fields Maloney, and obtained the same injunctive relief. The suits were consolidated for trial in the District Court and on appeal.
Appellants contend that the suit is not cognizable in equity; that it is not a local action, and, since none of the defendants resides in the El Paso Division, in which the suits were filed, venue is lacking; that the suit is against the state of Texas and the court is without jurisdiction; and that if the suit is not against the state, she is an indispensable party and joining her would oust jurisdiction.
While the District Court did not pass upon motions to dismiss, and the sole question presented is whether the inter
There is no doubt there is diversity of citizenship, and that sufficient amount is involved. The suit is to remove a cloud on title to real property. It is elementary that this presents an equitable action and is local in character. The property is situated in Pecos county, which is within the El Paso Division. If there were any doubt as to the nature of the suit, since all the defendants reside in the Western District,- the suit could be transferred to the proper division for trial, without the necessity of dismissing it.
It is well settled that a suit against state officers to restrain administrative action, alleged to be illegal,' is not a suit against the state prohibited by the Eleventh Amendment. Plaintiffs are not asking for relief against the state. It is clear that the state has not such interest in the case as would require her to be made a party. Pennoyer v. McConnaughy, 140 U. S. 1, 11 S. Ct. 699, 35 L. Ed. 363; Tindal v. Wesley, 167 U. S. 204, 17 S. Ct. 770, 42 L. Ed. 137.
From the allegations of the bills, it appears that Tyler has taken steps that would entitle him to receive a patent to the vacancy he claims if it does exist. If he had contented himself with waiting for the patent, perhaps no cloud upon plaintiff’s titles would have been created. However, he executed a power of attorney and two conveyances transferring his equitable rights, and these having been recorded, created a cloud upon plaintiff’s title as is properly alleged. Colquitt v. Roxana Petroleum Corp. (C. C. A.) 49 F.(2d) 1025.
The granting of a preliminary injunction is largely within the discretion of the trial court. Plaintiffs allege that the vacancy claimed by Tyler does not exist, and if a patent is granted to him for the land claimed, the title created will cover their property for which the state had formerly granted patents, forming the basis of their titles. Serious questions of law and fact are presented which may be decided only after full hearing on the merits. If Tyler should receive a patent granting him the legal title before final determination of the merits, the case would be unnecessarily complicated, and it is possible plaintiffs would be irreparably injured. The bonds exacted by the court appear to be ample to protect the defendants. It is usual to grant an interlocutory injunction to preserve the status quo. We find no abuse of discretion by the District Court. The interlocutory injunction was properly granted. Ohio Oil Co. v. Conway, 279 U. S. 813, 49 S. Ct. 256, 73 L. Ed. 972. Other contentions of appellants are without merit, and require no discussion.
Affirmed.
Rehearing
On Rehearing.
Appellants’ motion for leave to present oral argument on petition for rehearing in the above numbered and entitled cause is denied.