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(273 F.) advice, the correctness of which he supposes to be acquiesced in by the party to be adversely affected by conduct in pursuance of it. The evidence is not inconsistent with the conclusion that the advice was sought with the disclosed purpose of finding an excuse for or justification of an already contemplated appropriation of the land, in disobedience of the withdrawal order as construed by the official who made it. It was given under conditions conducive to partisan bias and to the vitiating influence of selfish motives. It was acted on with knowledge, or ample opportunity to be informed, of the conflicting views as to the right or lack of right of the defendants to do what they did. It was not unwittingly that they took the chance of their conduct being condemned as wrong and unlawful in the to be anticipated possible event of the legal views expressed by their counsel not prevailing over inconsistent ones known to be entertained by high offieials who had no personal interest to be affected.

We are not of opinion that, in the determination of the damages for which the defendants are liable because of their unlawful acts, the giving, under the circumstances disclosed, of the advice of counsel in pursuance of which they made mistakes of law, which they claim influenced their conduct, requires that those mistakes be given an effect or influence not accorded to the mistake of an occupant of public land included in his unperfected homestead entry, in making an unlawful use of that land when he thought there was no law against his doing what he did, and, so far as appears, was, unaware that any one thought otherwise, nor to the conduct of the holder of an oil lease in taking oil from the leased land after he was informed that right to that oil was claimed by another under a prior lease made by the owner. We think the evidence adduced required the conclusion that the wrongful acts complained of were committed under such circumstances as forbid their being regarded as anything less than a willful taking and appropriation of the plaintiff's property, with the result of depriving the wrongdoers of a right to be credited with the amount of expenses they incurred in taking the plaintiff's oil.

Such a valid conservation measure as the one in question could not be expected to be at all effective if the erroneous advice of a lawyer as to its validity or meaning is given the effect of enabling a trespasser,

knowledge or ample opportunity to know that the correctness of that advice is officially and publicly controverted, to take and convert the things of value sought to be conserved, and to contest the question of his liability without risking anything but the profit he would realize in the event of his being successful in the contest. A reason for the existence of the rule that ignorance of law does not excuse is that a different rule is incompatible with the regulation of human conduct by law. A mistake of law, made under the influence of advice of counsel. given and acted on under such circunistances as those disclosed by the evidence in this case, is within the reason of the rule mentioned, and is not within any recognized exception to or modification of that rule. To charge the government with the amount of expenses incurred by trespassers in taking oil from public land validly withdrawn from appropriation is incompatible with the enforcement of the policy evi

denced by the withdrawal order. To allow the credit claimed in behalf of the defendants would amount to paying them for doing what was legally forbidden.

[4] A provision of the Louisiana Civil Code and decisions of the Supreme Court of that state are referred to in argument of counsel for the defendants in support of the contention that under the law of that state the defendants, in the circumstances disclosed, are liable only for the difference between the value of the oil produced and the cost of producing it. It is not necessary to determine the import of the state statutes and decisions relied on, as in this suit in equity by the government for redress for an alleged unlawful appropriation of part of the public domain the relief grantable is not determined by local laws or rules of decision, but by general principles, rules, and usages of equity having uniform operation in federal courts, wherever those courts are sitting as courts of equity. The public domain is not at the mercy of state legislation or decisions. Utah Power & Light Co. v. United States, 243 U. S. 389, 37 Sup. Ct. 387,61 L. Ed. 791; Guffey v. Smith, supra.

[5] The amount for which the defendant corporation which got the oil became liable was not lessened by its payment of royalties to other defendants, who were liable as cotrespassers. Trespassers cannot, by dividing the fruits of their wrongdoing, convert their joint liability for the whole into a several liability of each of them for only the share or part he got or retained.

It was not error to allow interest from the date of the master's report on the amount he found be due at that time. Interest from that date was compensation for the withholding of the amount after the date it was found to be due.

For reasons above indicated, the decree under review is affirmed in so far as it was in favor of the plaintiff, and is reversed in so far as it credited the defendants, or any of them, with the drilling and operating costs incurred, and the cause is remanded, with direction that the accounting and the decree be conformed to the views herein expressed.

Affirmed in part; reversed in part.

NORVELL et al. v. UNITED STATES.

(Circuit Court of Appeals, Fifth Circuit. May 17, 1921.)

Nos. 3541-3547.

Nos. 3541, 3543:

Appeals from the District Court of the United States for the Western District of Louisiana. Nos. 3542, 35443.347 :

Appeals and Cross-Appeals from the District Court of the United States for the Western District of Louisiana.

Separate suits in equity by the United States against W. W. Green and others, against Henry Hunsicker and others, against the Arkansas Natural Gas Company and others, against B. R. Norvell and others, against W. H. Matthews and others, against Dillard P. Eubank and others, and against Lydia Hanszen McMullen and others.

(273 F.) Nos. 3541, 3543 :

Robert A. Hunter, Sp. Asst. Atty. Gen., of Shreveport, La., for the United States.

S. L. Herold and J. A. Thigpen, both of Shreveport, La., for appellees. No. 3542:

Hampden Story, s. L. Herold, and J. A. Thigpen, all of Shreveport, La., for appellants and cross-appellees.

Robert A. Hunter, Sp. Asst. Atty. Gen., of Shreveport, La., for the United States. Nos. 3544–3547:

S. L. Herold and J. A. Thigpen, both of Shreveport, La., for appellants and cross-appellees.

Robert A. Hunter, Sp. Asst. Atty. Gen., of Shreveport, La., for the United States.

Before WALKER, BRYAN, and KING, Circuit Judges.

WALKER, Circuit Judge. Each of these cases is so far like the case of Mason et al. v. United States (Circuit Court of Appeals, Fifth Circuit) 273 Fed. 135, that the opinion rendered in the cited case sufficiently discloses the grounds relied on to support the decisions now announced. The decree in each of these cases is affirmed in so far as it was in favor of the plaintiff below, and is reversed in so far as it credited the defendants below, or any of them, with drilling and operating costs incurred, and the cases are remanded, with direction that the accounting and the decrees be conformed to the views expressed in the opinion above referred to.

Affirmed in part; reversed in part.

MILLER et al. v. ESTABROOK et al.
(Circuit Court of Appeals, Fourth Circuit. April 2, 1921.)

No. 1792.

1. Evidence 178(3)-Abstract of destroyed records held admissible as best available evidence thereof.

In ejectment action, evidence offered by plaintiff, to show that defendant M., in possession, derived title through one C., who had executed a disclaimer or quitclaim to the minerals on the land, consisted of evidence by an attorney that before destruction of the county records by fire be had made an abstract of the title to the land, which he produced; that his memory was not so refreshed by the abstract that he could testify to its correctness from memory; that his abstract showed the record of derivation of defendant M.'s title by successive deeds from C.; that it was witness' habit in making abstracts to note defects or limitations in the deeds; and that there were no notations that would affect the derivation of defendant's title from C. Held, that the evidence and the abstract it. self were admissible as the best available evidence of the record; the evidence and abstract being admitted over the sole objection that the witness had no recollection of the record and that his memory was not refreshed by inspection of his abstract, and without objection that plain

tiffs should have introduced the original deeds or proved their loss. 2. Lost instruments 8 (3)—Evidence of contents must be clear and con

vincing.

Evidence as to lost documents must be clear and convincing. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

h Appeal and error 231 (3)-Objections to evidence must be specific.

Objections to evidence, without acquainting the trial court of the

grounds, will not be considered by the appellate court. 4. Appeal and error On 232 (2)-Ground of objection, different from that be

low, not considered.

Where the objection, on trial, to an exhibit, the copy of a will, was that the copy did not show it was ever probated in the county in New York state where testator lived, the objection could not be made, on appeal, that there was no evidence that the will was ever probated in the county

in West Virginia where the land sued for was located. 5. Evidence (348 (2) - Will, properly authenticated, admissible.

A copy of a will, properly authenticated under Rev. St. 905 (Comp. St.

8 1519), was admissible in evidence. 6. Mines and minerals 55 (2)— Instrument held quitclaim of mineral rights

in land; "release;" "disclaimer."

Under Code W. Va. 1913, c. 72, $$ 3, 11 (secs. 3780, 3790), an instrument, given by defendant in ejectment, in settlement of conflicting claims to the land, disclaiming all interest except in 95 acres, and, as to that, disclaiming title to the mineral title and rights, held a quitclaim, rather than a mere disclaimer; a “release” being the act or writing by which some claim or interest is surrendered to another person, the giving up or abandoning a claim or right to the person against whom the claim exists, or the right is to be exercised and enforced, and a "disclaimer" being technically a pleading alleging that the defendant has not any right or title, and that he does not claim the subject-matter of the suit.

[Ed. Note.-For other definitions, see Words and Phrases, First and

Second Series, Disclaimer; Release.] 7. Mines and minerals Cw55 (1)-Disclaimer of mineral rights held not too

indefinite as to naming grantees to operate as quitclaim.

An instrument in an ejectment suit, disclaiming title to minerals, was not inoperative as a quitclaim to minerals on the ground that plaintiffs in the cause had parted with their title before the date of the instrument, where the surrender and relinquishment was to the plaintiffs and those claiming under them, and the persons claiming under plaintiffs at the time of the execution of the instrument were easily ascertainable, so

that it was not necessary that they should be named. 8. Mines and minerals 55 (1)-Disclaimer or quitclaim of minerals not

binding on parties daiming under disclaiming party without notice there of.

A disclaimer or quitclaim deed of minerals would not be binding, as a severance of the surface and minerals, on those who purchased and held under the disclaiming party, unless they had actual or constructive notice

of the disclaimer or quitclaim. 9. Mines and minerals 55 (1)-Quitelaim deed of minerals held so recorded

as to be constructive notice; "well-bound book."

Under Code W. Va. 1913, c. 73, 88 2, 7, 7a, II (secs. 3805, 3810, 3812), Id. c. 74, $ 5 (sec. 3835), and Id. c. 76, § 5 (sec. 3862), the contention of defendants in ejectment that a disclaimer or quitclaim of minerals by their predecessor in title was not binding on them, because not prop arly recorded, in that, although not a release, it was recorded in the book provided by chapter 76, § 5 (sec. 38C-), to be kept exclusively for the purpose of recording releases and deeds of release, could not be sustained, where the book in which the instrument was recorded was not a book set apart exclusively for the record of releases and deeds of release, but containeu other records; for the only requirement of chapter 73. § 7 (sec. 3810), as to the book for recording deeds, is that it be a "well-bound book," which does not exclude such a book as was used, and if the clerk recorded the instrument in one of two or three such books, preserved and indexed as required by the statute, so that the books and For other cases see same topic & KEY-NUMBER in all Key - Numbered Digests & Indexes

(273 F.) coutents were readily accessible, this would be a substantial compliance

with the law. 10. Vendor and purchaser E231(7)-Grantee protected by delivering deed

for record.

Even if a West Virginia quitclaim deed was recorded in a wrong book, the grantees and their successors were protected when they lodged the deed with the clerk for record, and he certified to them on the instrument that it had been properly recorded; and an unsigned memorandum on the back of the deed, "Release Docket A," would not charge the grantees with notice that the deed had been recorded in a book used exclusively for releases, where there was no such book, in view of the clerk's duty to

record it in the proper book. 11. Judgment w710-Determination as to rights under tax deed not binding on one not party.

In ejectment suit to obtain title to minerals, where, to show common source of title and to defeat claim of adverse possession, plaintiff's gave evidence of deed from E. to defendants' predecessor, conveying the surface and reserving the minerals, the court properly excluded a decree, offered by defendant, to the effect that a tax deed to E. was to defraud the state of taxes for prior years, and that E.'s purchase was really for the benefit of S., the prior owner, and operated only as a redemption from the taxes for which the land was sold; defendant's predecessor having purchased from E. before the decree, and not being a party to the suit, and not bound by it, and there being no showing that the prior taxes were not afterwards paid, and there being no decree divesting the title of S., the

owner, so that the tax deed to E. was in any event good against him. 12. Taxation (319 (2), 728, 776_Tax deed did not convey minerals, where

party whose title was thereby divested owned no minerals; sale carries both surface and minerals unless separately assessed; presumed that law was complied with in making assessment.

Defendant's title to the minerals was not shown by a deed to defendant for delinquent taxes of one to whom the surface had been conveyed by deed reserving the minerals, for the tax deed conveyed only whatever title the person taxed had, and, although a sale of land for taxes will carry both surface and minerals, unless they are separately assessed, the statute requires a separate assessment when there has been a severance, and where there has been a severance the presumption is that the law was complied with and a separate assessment made.

In Error to the District Court of the United States for the Southern District of West Virginia, at Huntington; Benjamin F. Keller, Judge.

Action by George L. Estabrook and another, trustees of the Lincoln County Land Association, against Joseph D. Miller and others. Judgment for plaintiffs, and defendants bring error. Affirmed.

E. L. Hogsett, of Huntington, W. Va., and D. E. Wilkinson, of Hamlin, W. Va., for plaintiffs in error.

W. C. W. Renshaw and Cary N. Davis, both of Huntington, W. Va. (J. S. Clark and H. A. McCarthy, both of Philadelphia, Pa., and Vinson, Thompson, Meek & Renshaw and Fitzpatrick, Campbell, Brown & Davis, all of Huntington, W. Va., on the brief), for defendants in error.

Before KNAPP and WOODS, Circuit Judges, and BOYD, District Judge.

WOODS, Circuit Judge. In this action of ejectment, instituted by George L. Estabrook and Sabin W. Colton, Jr., trustees, against a For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

273 F.-10

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