242 F. 718 | S.D. Cal. | 1917
(sitting by special assignment). These three suits involve the northeast, northwest, and southeast quarters of section 24, township 31 south, range 22 east, M. D. M., in the state of California. The land in question is oil-bearing, and is included within the area described in presidential withdrawal order of September 27, 1909.
On November IS, 1908, Mr. E. D. Burge posted on each quarter section a notice prepared by himself, purporting to be on behalf of eight named locaters, evidencing an intention to claim the same under the placer mining laws, and caused such notices to be recorded. The alleged locators were principally relatives of Burge and nonresidents of the state. Burge had no previous authority from them to make such locations, and they did not know of the posting of the notices until after he had contracted for the disposition of the locations. On December 23, 1908, Burge, without consulting the alleged locators or obtaining authority from them, and without their knowledge, entered into a contract in his own name (which recites that he was the owner of the property described and was desirous of having it developed and proved to contain petroleum) with the defendant Brookshire Company for the development of the three quarters in question and also the southwest quarter of the same section. By this contract the Brook-shire Company agreed to enter into possession of the entire section on or before January 3, 1909, and to erect with reasonable diligence on each of three quarters thereof, at places to be selected by it, derricks, and upon the fourth quarter a complete standard drilling rig, and thereupon to commence the actual work of drilling and to prosecute same with all reasonable diligence to a depth of 2,000 feet, unless oil in paying quantities was discovered at a less depth: Provided, however, that if the conditions of drilling at the first location were not favorable, the company should have the right to change the location of the well before it was drilled to the depth specified. As soon as practicable after the discovery of oil in paying quantities and the completion of the first well, the company was to commence drilling operations on at least one of the three remaining quarters and continue such operations with all reasonable diligence until oil was produced there
The Brookshire Company entered into possession under the contract and did some work on each of the locations, and was drilling on the southwest quarter at date of the withdrawal. The other defendants claim portions of the land in controversy under alleged rights acquired subsequent to the withdrawal, through Burge and Johnson, being the portions to accrue to them under their agreement with the Brookshire Company. It is claimed by the government that the alleged locations were not made in good faith for the use and benefit of the locators, but were an attempt by Burge to obtain title to more mining ground than the law permitted one person to locate in one claim, and were therefore fraudulent and void, and as the Brookshire Company was in possession under him at the date of withdrawal, it was in effect occupying as his agent, and therefore had no rights to the property superior to his; and, second, that it was not in diligent prosecution of work leading to discovery on either of the claims now in controversy at the date of the withdrawal order, within the meaning of the Pickett Act.
It is unnecessary to refer to the evidence in detail. The entire transaction is well put by the witness Nyc, whose name was used in the attempted location of the northwest quarter, and with whom Burge
“I am Inclosing a quitclaim deed, which I am going to- ask you to kindly execute for rn'e, and also get the Kisers to properly sign. I am inclosing §50 apiece for yourself and Maud, and also the same for Nellie and her husband, which I will leave for you to give them. You undoubtedly have seen by the papers that thousands of acres of land in California have been withdrawn. Well, all my located land comes under that act and is affected by it, so we have quite a light on our hands, and the oil people in this district, and in fact all the fields in this state, have representatives in Washington, trying to protect us. I have been advised by my attorneys to get these quitclaims from all those whose names are used in my locations as it m'ay help me some in my fight for the land. I am into it and intend to stay until I know, one way or the other.”
By this letter, Mr. Burge himself characterizes the transaction. He refers to the property as “my located land,” and the names used in “my locations” and this characterization is borne out and supported by the testimony of practically all of the alleged locators.
I am not concerned at this time with the status or interest, if any, of an occupant or claimant at the date of withdrawal, who had, in good faith and without knowledge of the fraudulent character of the ipaper locations, purchased or acquired the alleged interests of the locators, and was occupying or claiming the property in his own right, and not for or as the representative of another. That question is not presented by this record’, and I refrain from indicating any opinion thereon. It is enough that here the defendants are claiming and were in possession under the so-called locators, and if such locations were fraudulent their rights must fail.
This view renders it unnecessary to consider the question of whether the Brookshire Company was in diligent prosecution of work leading to discovery on the claims in question, within the meaning of the Pickett Act, at the date of the withdrawal order. Whatever may be the construction or the scope and effect of the act, it is manifest that it was intended and designed for the benefit of those who were intending at the date of the withdrawal order to acquire title or the right to- possession of mining ground by complying in good faith with the mining laws of the United Státes, and not one seeking to evade such laws or obtain title in violation thereof.
Inasmuch as it appears from the bills that the plaintiff was not, and the defendants were, in the adverse possession of the disputed property at the commencement of the suits, it follows that, if a court of equity has jurisdiction at all, it is for the purpose of preventing waste, and the only proper parties to such a suit are those who are committing or threatening to commit the waste complained of, or causing or permitting it to be done. Such a suit cannot be treated or made to serve tho purpose of one to remove a cloud from the title, since the plaintiff is admittedly out of possession. Whitney v. Hay, 181 U. S. 86, 21 Sup. Ct. 537, 45 L. Ed. 758; Frost v. Spitley, 121 U. S. 552, 7 Sup. Ct. 1129, 30 L. Ed. 1010.
Plaintiff is therefore entitled to. a decree as prayed for.