Citations
- 64 F.2d 428
Full opinion text
LEWIS Circuit Judge,
, , This action was instituted m the court below by appellants, husband and wife, for tho ajieg.ed purpose of recovering possession of gQ aereg o£ ]and jn jjea County, New Mexico, They claim under patent from that state, and alleged that they are owners of the 80 acres in fee simple, and asked—
“that they have judgment for the possession 0f said premises, and ejecting the defendant therefrom, for the sum of $1,015,000.00 damages, that the plaintiffs be adjudged the owners of such premises in fee simple, and that defendant be adjudged to have no- right, title or interest therein, and for such other and further relief as they may be entitled to in the premises.”
In ^ ^ de£endant,a m8WBi_ f * , ,, . . ,. . . , “plaintiffs state that this is an aetion m ejectment only, as provided by the statutes of the State of New Mexico, and that they are seeking the relief against the defendant as authorized by the law of ejectment, and for no other pu?\ose’ and no °íhcr «lief except as and autkmzed m an action of
The parties waived a jury. The judge heard the proof and made findings of fact and conclusions of law, among others:
“This is an action (of) ejectment, and in such a proceeding the plaintiffs must stand °n the legal title — that is, the patent referred ^le foregoing findings of fact.”
Appellants’ brief opens with, “Thus is an aetion in ejectment * * * for the possession of eighty acres of land. * * * ” A copy of the patent issued by tho state of Fbw Mexico on September 9-, 1930, to Will Terry, one of the appellants, conveying to him ^he land in question was attached to the complaint and made a part of it by reference. Following the granting clause is this reserva-££on.
, . , „ “And reserving also to the State of New Mexico all minerals of whatsoever kind, in-eluding oil and gas, in the lands so granted, and to it, or persons authorized by it, tho right to prospect for, mine, produce and remove the same, and perform any and all acts necessary in connection therewith, upon compliance with the conditions and subject to the limitations of the laws of the State of New Mexico, such tract of land so conveyed being a portion of the lands granted to the State of New Mexico by the United States, pursuant to the Act of Congress approved June 21, 1898, and June 20,19101.”
There is also a copy of an oil and gas lease given by the state of New Mexico to appellee of date October 18, 1928, attached to the complaint and by reference made a part of it. It conclusively appears from appellee’s answer and the proof in support thereof that the only claim it makes and has is under that lease, that it has put down two oil wells on said 80. acres and has produced large qu-antities of oil and gas therefrom, and that it has used and is using only a sufficient amount of the surface for that purpose. Under said lease appellee has bound itself and is obligated to pay the royalties therein reserved to the state of New Mexico. In no other respeet has it interfered or is it interfering with appellants’ rights in and to said 80 aeres, Hence it appears appellants did not and do not own the fee and cannot maintain in the federal courts an action of ejectment ousting the appellee. Carter v. Ruddy, 166 U. S. 493, 17 S. Ct. 640, 41 L. Ed. 1090; Fenn v. Holme, 21 How. 481, 16 L. Ed. 198; Sanford v. Sanford, 139 U. S. 642, 11 S. Ct. 666, 35 L. Ed. 290; McGrew v. Byrd (C. C. A.) 257 F. 66; Ewert v. Robinson (C. C. A.) 289 F. 740. In St. Louis Smelting & Refining Co. v. Kemp, 104 U. S. 636, 26 L. Ed 875, the action was ejectment for land patented to another. At page 647 of 104 U. S, the court sai