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tion is still pending in the Land Department at this date. It is the first application for a lease under the leasing law that was filed in the Land Department by anyone for land on the Red River; the first application was that of the Burk Divide people.

Mr. BURTNESS. You use the word “first.” Has that any significance, and have others filed since?

Colonel RooTE. Yes, sir. But I did not mean it that way. I meant to show that we were at all times taking every step that could be taken to preserve our rights.

Mr. BURTNESS. I understand that, but it occurred to me from what you said that possibly others had filed since.

Colonel ROOTE. They have, and I am going to come to that. In discussing the reasons why we urge that this bill be enacted as it reads, I mean the Sanders bill, I am coming to that very matter, and I may as well take it up


The chairman asked me whether I had any objection to the striking out of lines 18 to 24 on page 2, and the insertion of a clause that is in the leasing law in the place of those lines. I want to be very frank in saying that I am in favor of the bill as it now reads, without amendment; and I propose to give what I think are good reasons.

Mr. LARSEN. You are speaking of the Sanders bill?
Colonel ROOTE. The Sanders bill; yes, sir. I will read those lines :

“In every case where there shall be any conflict or contest on account of overlapping claims the said conflict or contest shall be determined upon competent evidence, and in every such case the land in such conflict shall be granted to the person or corporation that in good faith first possessed and claimed the land and maintained such possession until dispossessed by judicial process or otherwise."

I frankly admit, gentlemen, that that language was inserted in this bill for the express purpose of giving to the pioneers in this oil field a reward for the fruits of their expenditures. That is consonant with all previous legislation by Congress of a similar nature.

Mr. RAKER. Do you make any distinction between the mineral land claimant who does not have to possess his land or be in actual possession and the claimant in the State of Texas who might have an absolute right to possession and ownership, if you please, but not in possession at the time. That provision would cut him out, would it not?

Colonel ROOTE. It would cut him out under the decision of the Supreme Court in this case.

Now, Judge, the Texas people who claim under Sam Sparks's lease had no right and neither did we.

Mr. RAKER. The reason I put the question was that that provision gives no one any right, no matter what he had there, unless he was in possession.

Colonel ROOTE. That is it. The first in possession; and I am going to make an argument, with the permission of the committee, for just a few minutes on the justness of that position. Now, to begin with, we were wrong; Sam Sparks was wrong; the State of Texas was wrong; and we were all wrong. are in no worse situation with respect to it than Mr. Sparks. Now, there are hundreds and thousands of similar situations that have existed in the West during the past fifty years, and the uniform rule has been that the first in point of time is given the property that he actually possessed. The senior locator of two claims, two mining claims, in your State or any of the western States, gets the land when there is a contest, assuming that both of them, of: course, can show good faith.

So we

Mr. BURTNISS. But in that case they are seeking something to which the prior man is really entitled under the law?

Colonel RooTE. That is true. But the situation here is analogous. Take the case I recited the other day, where it was held that certain locations in Cali. fornia were invalid, so held by the Secretary of the Interior in August, 1896. What did Congress do? Congress did not pass a law that would permit the Land Department or the Interior Department, where there were two or three claims overlapping, to cut up the property into small bits and parcel it out, giving a part to one and another part to another and another part to another.

Congress merely extended the existing mining laws to that property so that thereafter, if there were a half dozen contestants to one piece of land, the senior locator, under the law, got the land. And there were many such cases under that very law, the act of February 11, 1897; many such cases. Sometimes claims overlapped corners like that (indicating] or the sides or the ends. Sometimes it is done unconsciously and sometimes there is no intention to overlap a man's claim. A prospector goes upon the ground and he may not see the stakes of the earlier locator. It is possible that the stakes have been destroyed, but he finds later that he has located his claim in such a position and such a manner that a part of it overlaps another claim; and when he does that he loses that part of the claim that overlaps the claim of the senior locator.

Mr. RAKER. In other words, the first applicant whose claim is properly staked and recorded gets all of his claim as against subsequent claimants?

Colonel ROOTE. Yes, sir.

Mr. RAKER. But you take these overlapping claims. If the first man does not happen to be in possession when the first, second, third, and fourth gentle. men come in, are you going to give the first, second, third, and fourth all the rights because they took final possession? That is the only question I am putting to you?

Colonel RootE. I am going to give you just what the law is; I will tell you what the law is. I have it right here in Lindley on Mines. In case A has a mining claim located and B locates a mining claim that overlaps a portion of it, A is the senior and B is the junior locator; A afterwards forfeits his claim, but that does not make B's claim good for that part.

Mr. LARSEN. In the case you speak of the lands were open to entry, were they not?

Colonel ROOTE. Yes, sir.
Mr. LARSEN. And they were able to inake their applications to a proper party?

Colonel RootE. In the cases I am referring to, the California cases, it was held that the lands were not open to entry under the placer law, because one could not locate a placer mining claim on oil land unless it had gold or other metal in it. That was the holding, and Congress very promptly passed remedial legislation validating those claims. When that was done, if there were two or three overlapping-and there were many such-the senior locator got all his land.

Mr. BURTNESS. Was that pursuant to the statute or was that pursuant to decisions made by the Secretary of the Interior?

Colonel ROOTE. No.

Mr. BURTNESS. I mean the result of this remedial legislation in that regard, as between the rights of overlapping claimants?

Colonel RooTE. It merely placed those men as they would have been if the mining laws had applied.

Mr. DYAR. That is a very short act, and suppose you read it into the record.

Colonel RooTE. It is in the record once or twice. And that is not all, gentlemen; there are many other precedents for remedial legislation.

Mr. LARSEN. Were there any expenditures in those particular cases—that is on the lands that were in dispute ?

Colonel ROOTE. In California ?
Mr. LARSON. Yes.
Colonel ROOTE. Oh, yes.

Mr. LARSEN. Were there improvements on them, or in what way do you mean there were expeditures?

Colonel RootE. I only know in a general way, Mr. Larsen, that there were many cases where their claims overlapped. I was not there and I had nothing to do with any of them, but I know the history in a general way.

Mr. LARSEN. That was simply the policy adopted by Congress in enacting the legislation?

Colonel RootE. Yes, sir; that was the policy adopted by Congress; and that has been the uniform policy of Congress from that date to this. There are many other such instances.

The CHAIRMAN. Do you know how the department has applied the paragraph you have been speaking about—that is, the paragraph in the oil leasing act?

Colonel RooTE. Which one, Mr. Chairman?
The CHAIRMAN. In case of conflicting claimants.
Colonel RootE. I do not, Mr. Chairman.

The CHAIRMAN. The thought occurred to me as to whether it was broad enough to permit the department to take those matters into consideration in adjudicating the claims.

Colonel RootE. I believe that the language in that act gives to the Secretary of Interior very unusual powers. In this very Red River case there are a number of so-called claim jumpers. A large number of paper locations were made in Red River for a distance of 12 miles many months after the Burk Divide people went into actual possession of this property, and some of those paper locations overlapped a portion of this Burk Divide property.

The CHAIRMAN. Did those paper locators make any expenditures on this land?

Colonel RootE. Not one single dollar on this Burk Divide property, but they made some expenditures in other parts of the river. On June 29, 1919, which was more than five months after the Burk Divide claims were located and six months after Mr. Testerman's claims were located, Mr. Denson, of Colorado, in about two days' time located 70 claims on Red River, covering almost the entire surface of the river for a distance of 12 miles; and the claims were located in this manner: He procured a map and extended the surveyed lines from the north, and each claim was located according to the extended survey made by Mr. Denson. Seventy claims were located, and some of these claims overlapped the Burk Divide property; and those gentlemen are wanting a part of our property, and they are of the opinion that under the department's bill, or under this bill, if it were amended as has been suggested, they would have some sort of a chance to get some of that land. I do not believe that in the circumstances they are entitled to it; and yet if the broad powers are given to the Secretary of the Interior that are given to him under the department's bill, or such as are given in the general leasing law, it would be possible for him, by way of compromise, to say, “ Well, you men are fighting about this; I will give you 60 acres;'I will give him 20 acres ; I will give him 30 acres ; and I will give somebody else 10 acres," and so on.

The CHAIRMAN. Would that be just?

Colonel Roots. No; it would not. I know that the reply to my argument is that we must assume that the Secretary of the Interior is going to do the just


and proper thing. Well, it is a delicate position to place me in, but I want to be frank and say that I think Congress should say to whom this land is to go, and leave to the ministerial officer, the Secretary of the Interior, merely the machinery to carry out the will of Congress. I think that Congress should say that the pioneers who went into Red River expended hundreds of thousands of dollars and revealed to the world the presence of oil ought to be rewarded for the risks they took and for the money they spent; and I do not believe that these claim jumpers, who came six months later, should be rewarded nor have a law enacted under which they could under any possible state of circumstances get five acres of it. That is just exactly the way I feel about it. And this bill, I say frankly, was drawn for the express purpose of giving that land to each of the original locators. In this connection, let me say, gentlemen

Mr. RAKER (interposing). In that connection, we ought to have, at least, a prima facie showing that none of these other people have any rights.

Colonel RooTE. Well, they have located some claims in places where they do not overlap, or at places 2 or 3 miles up the river.

Mr. RAKER. Could not that be done so far as the land that is involved in this controversy is concerned, or so far as your company is concerned ?

Colonel ROOTE. As you know, it would be an expensive thing to bring witnesses here from a distance of 2,000 miles. We are able to show that, and it has been shown in this record.

Mr. RAKER. You have put the proposition very clearly, and I, as one member of the committee, would want definite information in regard to that. For instance, you say there are other claimants, and I want to know just what I could go upon in saying that these other claimants have no rights. What would I have to go upon in joining in the preparation of a bill that would cut them out?

Colonel RooTE. Of course, you are not in possession of all the facts. I have only stated them to you in a general way. Those claims that I spoke of were located on June 29. I believe there were 70 claims located, most of them on June 29, or on June 27, June 28, and June 29, during that period of two or three days, in 1919.

Mr. RAKER. Your well came in in January?

Colonel RooTE. Yes, sir. They had no possession of any part of our property; they never spent a dollar upon it, nor did a thing. It is claimed that they came over a little way on the north edge of it and put up some stakes. I do not known anything about that. However, they did not remain there, because of the fact that our people had those patrols on duty day and night. The guards were referred to as gunmen, thugs, and ruffians; but they were not. One of them was a deputy sheriff of Tillman County, Okla., a peace officer. They did not disturb anybody and would not hurt anybody unless some one attempted to take forcible possession of the property. They were there to maintain possession.

Mr. LARSEN. Were they in fact armed?

Colonel ROOTE. This deputy sheriff was armed, and most people go armed down there.

The CHAIRMAN. How would you reply to the great number of stockholders who claim that they were acting in good faith and were misled through the action of the State of Texas in giving a lease to Sam Sparks?

Colonel RooTE. They are just in an unfortunate situation. I have no personal feeling against those people at all. I say that the law has always been that he who is first has the superior right. He who is first in point of time has the right. That is one of the maxims of Anglo-Saxon jurisprudence. We get it farther back than that; it has come down to us from the days of the Pandects of Justinian, and it is the law everywhere to-day. It is in effect both where the common law is in force and where the civil law is in force.

Mr. RAKER. You had started out to discuss the possession proposition and these overlapping claims. Just complete that statement, will you?

Colonel ROOTE. I really had said as much as was necessary on that; but I may say this, and I ask you gentlemen to consider this seriously: Those men who located some claims that overlapped ours also overlapped Mr. Testerman's clạims, or some of them, and I believe all of them. Just how much they overlapped I do not know. This, as a matter of fact, was just a paper location, but they are going to ask for some of this land. They believe that if the law gives carte blanche authority to the Secretary of the Interior to take all of this land and parcel it among these various claimants, as he sees fit or as his judgment may dictate-they believe that by coming in, they will get small pieces of the land. That is true, to be perfectly plain about it. I say that under no existing law and under no policy that the Government has ever pursued has such a thing been permitted, and I hope that this Congress will not depart from the policy that Congress has followed during all of these years in cases that are analogous to this. The maxim of the law is that he who is first in possession, the rights being equal, has a superior right to one who comes in later, or to the claim jumper; and if that maxim is to be upset at this time, it will be, in my judgment, an exceedingly bad precedent. Had there been such a law during the last 60 years, I wonder how far the West would have been developed to-day. Who, I ask, would want to locate a mining claim in the West if he were not certain that, having located it, he would be permitted to hold all of it? If he were in danger of losing half of it, or one-fourth of it, or one-third of it, or some other part of it, simply because some one might come in later and locate a claim over it, he would be discouraged. It would not be justice.

Mr. BARBOUR. Did any of those paper locators do any development work?

Colonel ROOTE. Up the river there were some derricks very late in December, 1919, or in January, 1920. There were three or four derricks.

Mr. BARBOUR. Were they on overlapping claims?
Colonel ROOTE. I do not know. There were no derricks on our property.

Mr. BARBOUR. If they were in there first, under the language of your bill they would get the land?

Colonel ROOTE. Yes, sir; if they were there first, they would be entitled to all of it.

Mr. COLLINS. I do not understand that that is the case under the provisions of this paragraph on page 2 that you just read. It seems to me that they must be there first and at the same time be in possession.

Colonel RootE. That is what I meant. If this law is passed, it will enable the three sets of pioneers to get possession of the property that they had the actual possession of.

Mr. BURTNESS. If we had the Sanders bill and eliminated entirely the date of October 1, 1919

Colonel ROOTE (interposing). I am not particular about the date.

The CHAIRMAN. There is no objection to a change of the date to the date of the passage of the oil act?

Colonel RootE. I will explain that, if you will allow me, in a moment. That is the date fixed in the leasing law. The first bill that we had introduced in Congress with respect to this land contained the date of February 25, 1920. That is known as the Newton bill, H. R. 11928. The date that was in the bill introduced by Mr. Newton was February 25, 1920, as will appear in line 8, page 1.

The CHAIRMAN. The date is immaterial to you?

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