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Mr. GORE. To see whether there was oil in the well. You see, he had provided a tank and made a run of the oil on the 22d day of August. He said to himself that "it was well done,” and then this injunction was served. Afterward they took him to court for contempt and fined him $100 and put him in jail for violating the order of the court, which had, however, no validity, no more than it would have had in any foreign land. Ie was in Austin, Texs., in durance vile. His attorney phoned the attorney general of Oklahoma that a citizen of Oklahoma was imprisoned in Texas for contempt of a court that had no jurisdiction over his acts or his property. The attorney general phoned his attorney to meet him in the City of Washington; they met in Washington and made application to bring the suit, the case of Oklahoma against Texas. That is the origin of this suit, and it grew out of the unlawful imprisonment of Tom Testerman. As I say, he is a frontiersman and has braved many dangers, but he is not familiar with all these technicalities of the law.
What has happened in the course of the litigation is known to the gentlemen of the committee. I insist he acted in good faith, believing he had a right to go on the property, and he certainly did not damage the property; he revealed to the United States that it had a very large treasure there which ought to be and which will be—if not dissipated by the receiver—a source of revenue to the United States, and it ought to be a source of revenue to the man who took the chances. He did not know when he spent $25,000 in putting down one of these wells whether it would be a dry hole or not; he took the chance. Tom Testerman stands well amongst his neighbors. He collected money from eighty of his neighbors; they raised $120,000 and more to do this development work. They had faith in his character as a man; they had faith in his judgment and they made their contribution or investment, and he expended one hundred and twenty odd thousand dollars in teaching the Government of the United States that this land was a treasure-house. I will not say the land that God forgot, because He dowered it with a treasure more precious than wedges of silver, but it seems to have been land, according to Judge Dyar and the Supreme Court, that Congress forgot. However, I think Congress assumed that it was within the mineral laws, otherwise it would have applied the mineral laws to the south half of the river.
Now, gentlemen, we are not asking you to do a strange thing; we are not asking you to do anything new under the sun, and you can not go very far astray when you tread the beaten path, when the light of precedent guides you. This has often been done in the past. I need not do more than refer to it, because it has been amply referred to before, but when the Secretary of the Interior found that building stone was not subject to placer entry what did Congress do? Inspired by a spirit of justice and guided by the public policy of this country, it immediately passed a relief measure under which men who had in good faith located placer mining claims could pursue them to patent. It did not stipulate good faith, as I remember, in allowing them to pursue those claims to patent. I have read the reports in the House and the Senate, and the reason set forth in the Senate report was that these men had, in good faith, made their investments; that property rights had attached, or had been supposed to attach, and that it would work an injury and injustice if Congress did not relieve those who had in good faith made those locations. There was not any hesitation about it; there wag not any debate about it.
Later on, as has been suggested, it was ruled by the Secretary of the Interior that oil was not a mineral. Did Congress hesitate about relieving those men who ventured their fortunes in an effort to develop the oil lands of the West? No. Congress immediately enacted relief legislation. There was not any opposition to it; there was not any quibbling about it and there was not any cheese-paring about it. Congress met the occasion and took care of the men who were building up this country.
When the leasing act was passed the gentlemen who sit at this board, and whose counsel contributed, may I say, to the wisdom of that measure, provided relief legislation in four sections of that act. There may have been differences as to the measure of relief, but I venture to say that in the confidences of your committeee meetings there was never any dispute about granting relief to men who acted in good faith, however opinions may have differed as to the measure and character of relief.
In the Greer County case the homesteaders were protected in their claims, whether they were contested or not. That does not go to the vitals of it. The question is that a man who is in possession of a claim, and who has acted in good faith, ought to be relieved. And, Mr. Chairman, the pioneers, the men who made America what it is. have never appealed in vain to the Congress of their country for relief when they have acted in good faith and have been mistaken as to the technicalities of the law. The men who have made America were not versed in legal technicalities, but they have been versed in the ways and means of building up here the greatest civilization ever known. They know how to do that; they have done it in a rough and ready way, but they have never stood with one foot upon the bank of the Rubicon and debated whether or not they had a technical right and they entered the promised land when they knew the general policy was an invitation.
Tom Testerman is of that mold; he is a sort of David Crockett, a man who, if called on, would brave any dangers and protect himself as a she tiger protects her young. Now, the men who have redeemed this country from the wilderness, the men who have subdued the forests, who have conquered the mountains, who have built for themselves a home by the side of the eagles and who have carried our flag and our institutions from the eastern to the western seas were not jurists; they were not Marshalls or Storys, but they knew how to do things, how to meet situations, how to carry forward the vanguard of civilization and how to make America the greatest land the sun shines upon. Tom Testerman is of that mold, and I do not believe he will appeal in vain to the Congress of the United States for a reasonable measure of relief under the circumstances as they have been proven to this Committee.
Now, Mr. Chairman, if there be any questions I shall be very glad to answer them. The CHAIRMAN. Is Mr. Testerman going to testify?
Mr. GORE. I think not, no, sir. Of course, he is at the disposal of the committee, but my own view, Mr. Chairman, was that it was really wise to keep out of this record the testimony which bears solely upon disputes between different claimants. Of course, any testimony and evidence that may be necessary to enable the committee to establish the conditions and requirements which these men should have met I think would be material, but I think the issues between the different claimants, the Burk Divide people, the Denson people, the Wyoming people, or the Sparks people, ought to be referred to a different forum.
The Chairman. What do you think about the language in section 18 of the leasing act, to which I have referred several times, the language being:
“In case of conflicting claimants for leases under this section, the Secretary of the Interior is authorized to grant leases to one or more of them as shall be deemed just."
That language to be in lieu of the language granting priority rights.
Mr. GORE. Of course, I realize that the language you have just read is the result of a great deal of thought and research and fixes a policy, and as far as the terms of the leasing act can apply to these circumstances, I think they ought to apply. I assume, and as far as I am concerned, I have no doubt that the claimant who shows that he has conformed to the conditions which you pres. ribe in this act and has complied with those conditions in good faith will have a seniority right and that such a claim will control in any decision that is made.
The CHAIRMAN. They have had cases under the oil leasing act in which they have applied this language, and I understand from the Interior Department that they give consideration to priority, although they do not make it wholly controlling, depending upon the particular equities of the case before them.
Mr. Gore. Other claimants are more concerned about the language of the bill as drawn then we are, and I have no obje:tion to the language remaining as it is.
The CHAIRMAN. What other claims conflict with Mr. Testerman's claims?
Mr. GORE. The principal contest is on the part of those who claim on the Texas side. I think there is, perhaps, a 40 acre conflict with one of the placer claimants, but that turns not on the question of priority but on whether the lines of the congressional survey should have been extended south.
The CHAIRMAN. On what date did Mr. Testerman bring in his well?
Mr. GORE. He struck the sand on the 13th of August, although he spudded in in May, I think it was; he struck the sand on the 13th day of August.
The CHAIRMAN. When was the injunction served on him?
Mr. GORE. He swabbed his well on the 21st and made his trial run on the 22d and was served with the injunction that evening at 8.30.
The CHAIRMAN. And had not had possession since?
Mr. GORE. I think he did assert a little possession between that and the time he got into jail or, I mean, at the time he was fined.
Mr. TESTERMAN. The Cotton County officers took charge of it on the 7th day of October under the receivership.
Mr. GORE. Then he went back on the premises, under the protection, as he thought, and authority of the court. Then he was put off by the rangers.
The CHAIRMAN. He had four claims?
Mr. GORE. The western claim is the Border Line; the next is the Tiger, then the Lucky Spot—and I might say that Lucky Spot is a misnomer-and Black Jack.
The CHAIRMAN. Are they contiguous?
The CHAIRMAN. Was he putting down any other wells when the injunction was served?
Mr. TESTERMAN. When the injunction was served I had two drilling rigs run down and just completed; for the fourth well I had a derrick built, and for the fifth well I had a stand of piling built. Those five wells are on the four claims, however.
The CHAIRMAN. You were operating on each claim?
Mr. TESTERMAN. Well, I got very light sand south of that, nine miles away. I drilled two wells, commencing one in December, 1918, and commencing the other one in January, 1919, and I completed those wells in March, 1919.
The CHAIRMAN. Were you instructed that it was necessary to be working on these claims?
Mr. TESTERMAN. Yes; I was instructed that it was necessary to put down a well on each claim. That was the instruction I received.
The CHAIRMAN. Each claim was treated as a separate unit?
Mr. TESTERMAN. Yes, sir. However, I might say that the locators of the claims assigned their rights to what we call the Mellish association and all became interested in the association. Now, when it came to development we got into a situation where a bunch of us were not able to pay our part, so that a number of the other men put in more money, and then we made it into a joint stock association.
The CHAIRMAN. They speak of you locating four claims; of course, you could not do that?
Mr. TESTERMAN. No.
The CHAIRMAN. Senator, do you happen to know how many wells are now down in the property in question?
Mr. GORE. Do you mean in the river bed?
Mr. DYAR. Yesterday I submitted a statement from the receiver, and I believe I read it into the record, but I believe I was interrrupted before I completed the full statement.
The CHAIRMAN. Will you put that into the record?
The CHAIRMAN. Do you know what the present production is of the wells now in the hands of the receiver?
Mr. GORE. No, but I understand that some time ago there was a production of 600 barrels a day. That has been some months ago and undoubtedly the production has run down. The last time I consulted the receiver's report I think it showed that he had taken out something like $10,000,000 worth of oil and disposed of it, and that the expenses and disbursements have been something like $8,000,000.
Now, that brings up another point which I think is very important. It'seems to me this is an emergency that should be met immediately, not merely on account of these claimants but on account of the Government itself, because under the decision of the Supreme Court this land will have to be cared for when the receiver is discharged. It is valuable property and I think the duty devolves on the Government of providing some sort of administration of it. I know of no law which would authorize its administration and certainly there is no appropriation that could be used for its development or for its administration. That being so, it seems to me it is an emergency which justifies the gentlemen of the committee in resorting to a rule for the passage of this legislation in order to protect the Government's interests.
The CHAIRMAN. What is oil now worth down there?
Mr. TESTERMAN. It is $2.25 at this time. There is a premium of 25 cents on oil having a gravity of 38 and above.
Mr. GORE. This is a good character of oil. There is one other point. Mr. Testerman has in this vicinity 640 acres and this bill provides for 480 acres. Now, I would like to see that raised for two reasons. First, for the very plain reason that Mr. Testerman is interested in 610 acres, and I think, interested in a way that entitled him to relief. "That is one point. The other is that the smallest maximum which has ever been fixed in any legislation, so far as I can recall, is 610 acres. You will remember that section 17 of the leasing act provides for 640 acres and section 19 provides for a much greater number, and in some instances it is practically unlimited.
Mr. LARSEN. I believe it has been stated that Senator Testerman is associated with 32 men, 8 men on each claim.
Mr. GORE. Yes.
Mr. GORE. Yes, sir; each claim was located by eight locators. As you know, under the placer law it is provided that no one can claim more than 20 acres, but that eight can form an association and claim as much as 160 acres and not more. As I suggested, the lowest maximum that has ever been fixed is 640 acres, so that in order to be harmonious with the existing policy of the Government I think the number of acres in this bill should be raised to 640. I might say to the gentlemen from the West that if you reduce the maximum in this instance it may come back to plague you in the future, because there are those who will say that in this instance you thought 480 acres were enough, that you had departed from the general and existing policy and that if it were justified in this isolated case they might seek to make it the general policy. So I think as a matter of foresight and prudence it would be wise for you to adhere to the 640 acre standard.
The CHAIRMAN. Under section 14 of the leasing act they are entitled to one-fourth of the land embraced in the prospecting permit or in any event as much as 160 acres if there be that number of acres within the permit.
Mr. GORE. Yes, sir.
The CHAIRMAN, Of course, they were entitled to a prospecting permit on the four sections?
Mr. GORE. Yes, I believe they could get a lease on "one-fourth” and a permit on the rest which might eventuate in a lease.
The CHAIRMAN. How much had Mr. Testerman and his associates expended on the four claims at the time the Texas injunction was served upon him?
Mr. GORE. About $120,000. I might say in this connection that they took his machinery and equipment, valued at a little over $19,000, for which he has never received one cent of compensation. They used it in drilling the other wells in the claim that he had located, and they held and enjoyed the fruits and profits from the date of seizure until the appointment of the Federal receiver which, I think, was from October or November until the first of April.
Mr. TESTERMAN. From November 7.
Mr. GORE. They drilled wells with his machinery, took the oil and enjoyed the fruits from everything they recovered.
Mr. SMITH of Idaho. Have they ever made a claim for the proceeds of the development?
Mr. GORE. No, I do not think so.
Mr. Smith of Idaho. That operation was under the protection of the Texas courts, was it not?
Mr. Gore. Yes, sir. I may say that everybody else who put down wells, and were similarly situated with Senator Testerman, with one exception, have been paid back the expenses of drilling the wells, because the Government took them over; that is, the court took them over through the receiver and made use of them. The people who put down those wells have been reimbursed in every instance except Senator Testerman. Why a discrimination was made I do not know unless it was that technically he was in contempt of this Teaxs court, and I suppose that the comity which obtains between courts restrained the receiver of the United States Supreme Court from reimbursing him.
Mr. Smith of Idaho. If the title to this property was in controversy I do not see how they could go ahead and develop it and take the proceeds of it.
Mr. TESTERMAN. There was a receiver appointed out of the Texas court and he was appointed in October, the middle of October, 1919, and on November 7 they took possession of the entire property, machinery and all, and drilled wells on the property.
M. SMITH, of Idaho. Under the direction of the receiver?