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Colonel Roots. It will take me only a little while. I ask this for the reason that it was stated by Mr. Macey yesterday that I had filed interventions and briefs for the Denson group of claimants, and that statement was made in such way that the impression might obtain that I had at one time represented interests that I am now opposing, and in order that no such false impression may obtain I want to explain just briefly the facts.
In July, 1920, Mr. Denson sent a telegram to me at Butte, Montana, in which he stated that the Red River Oil Corporation would like, if possible, to engage me to represent their interests in the litigation in the Supreme Court, and asked if I could meet him at Denver, Colo., where that company has its offices and its officers are located, on a day certain in the following week. I replied that I would meet him, as requested, at the Brown Palace Hotel, in Denver, on the day mentioned, and in compliance with my promise I arrived at the Brown Palace Hotel and there found a telegram from Mr. Denson saying that he had been called to Breckinridge, Tex., and could not come to Denver, but that the officers of the Red River Oil Corporation would call on me, and within an hour or two Mr. Paul Clark and Mr. Everett Owens, who were officers of that company, called on me, and I went with them to their offices.
The Red River Oil Corporation had 70 claims that had been located by Mr. Denson and his associates under an arrangement by which they were to furnish the money for the development, the original locators, however, to retain an interest in the property. They asked me if I would accept employment to represent them, and in discussing the matter they spread out a map upon the table. In looking at the map I discovered that one of their claims overlapped a portion of the Burk Divide property. They knew I was the attorney for the Burk Divide Co., and I said, “I can not represent your company if you are claiming this property. That is impossible, because I already represent the Burk Divide Oil Co.” They stated to me that they made their locations many months after the Burk Divide claims were located, made no contention that they were prior or entitled to any conflicting part and that if I would accept employment to represent them they would enter into a written waiver of the portion of their claims that overlapped the Burk Divide, and urged me to give them my services. Under that clear and distinct understanding and with that written assurance and written waiver, waiving the portion of the ground that they overlapped of the Burk Divide property, I undertook to represent them and did represent them.
I contended then that in so far as their claims overlapped senior valid claims they were invalid and with that contention they agreed and they waived that portion.
After the decision of the Supreme Court on May 1st, last, I came to Washington and in the last week of May Mr. Clark came from Denver and came to my room at the hotel and stated to me that my employment had been in that law suit only; that that law suit had reached an end and that my employment was at an end, and that it was the opinion of Mr. Macey, who was interested in that company, that inasmuch as those parties had filed applications for leases under the leasing law and that as their applications were filed first they could, notwithstanding the over-lapping locations on the Burk Divide property, hold the property that they had located, and that inasmuch as I was the attorney for the Burk Divide Co. and could not represent those conflicting interests, stated that they considered that my services were at an end, to which I assented.
I make that statement, Mr. Chairman and gentlemen, in order that the committee may know that I am not contending now for anything that I was not contending for then. I contended then that the senior locator who complied with the law would hold and I so contend at this time.
The CHAIRMAN. What is the matter you want to go into now?
Colonel Roote. It has been charged by Mr. Macey, inferentially at least, that the original locators of the Burk Divide Co. had transferred their interests. I have stated to the committee that the transfer amounts to a lease and I have the documents here, and want to show to the committee that there never has been a transfer; that these original locators are still interested in the property. The contract by which they turned it over to these Burk Divide companies specifically stipulates that upon the failure of the Burk Divide Co. to drill the wells specified and do the things specified they could reenter and take possession of the property. Now, the instruments themselves were drawn in Grandfield and there were no lawyers there. There was a real estate agent and justice of the peace.
The CHAIRMAN. Are they all the same?
Colonel RootE. I will do that, Mr. Chairman. I will give this to the reporter. I have here an abstract of this property, certified by the abstractor, but it is the same as I shall give to the reporter.
Mr. BURTNESS. Do they all bear the same date?
Colonel RootE. No, but about the same date. There are three of them, and two were dated the 19th of July and the other was dated later, but they are exactly alike in other respects. I would like to just read a portion of this and then it will all be copied in the record. As I stated the other day, these intruments were drawn by some scrivener, conveyancer, notary public, real estate agent or justice of the peace in Grandfield, and they are peculiar instruments. However, taken in connection with the contemporaneous contract they are perfectly clear.
Mr. BURTNESS. Were the originals drawn on some printed blank?
Colonel Roots. They were. They were drawn on a printed blank headed “Quitclaim deed.” I have seen the original but I have not the original to show to the committee. It was a printed blank headed “Quit-claim deed." Then there was a space in which the description was written. The description of the placer claim was by metes and bounds, and these are the words to which I want to call your particular attention:
“Except that parties of the first part retain a one-fourth carried interest in and to the said described premises. It is expressly stipulated and made a part of this conveyance that there shall be delivered to the credit of the parties of the first part, their heirs, or assigns, free of cost in pipe line, the equal one-fourth of all the oil produced from said premises."
That is one of the deeds signed by eight of the locators and they retain this interest. The CHAIRMAN. What does the party of the second part agree to do?
Colonel Roots. In this it does not say, but I have another instrument here which does state what they are to do, written at the same time.
Mr. Dyar. Will you give us the date?
Colonel Roots. This is the 19th day of July, 1919. Now, this is acknowledged before a notary public, and it was recorded in the county recorder's office of Tillman County at 8 o'clock a. m., on the 20th of August, 1919, in book 93 of the records of that county, at page 579. It is in my abstract here and anybody can get it from the county records.
(The deed referred to follows):
(Individual form.] This indenture, made this 19th day of July, A. D., 1919, between Walter C. Daugherty, Robert L. Hart, Evander Kiser, A. C. Goddin, James L. Taylor; Thomas R. Foster, Floyd N. Thompson, and James Crossland, parties of the first part, and Adrion Skinner, party of the second part,
Witnesseth, that said parties of the first part, in consideration of the sum of $1 and other valuable consideration, dollars to them in hand paid, the receipt of which is hereby acknowledged, do hereby quitclaim, grant, bargain, sell and convey unto the said party of the second part all their right, title, interest, estate, and every claim and demand, both at law and in equity, in and to all the following described property, to-wit:
Situate in Tillman County, State of Oklahoma: Beginning at a stake at the south bank of Red River, south of section 5, township 5 south, range 14 west of the Indian meridian being in line with the east line of section 5; thence south 56° west 400 feet, thence south 35° west 444 feet, thence south 45° west 283 feet, thence south 57° west 355 feet to a cottonwood tree, thence south 57° west 190 feet to a second cottonwood tree, thence south 34° west 300 feet, thence south 65° west 161 feet, thence south 65° west 618 feet to the southwest corner, thence north 2,640 feet to a stake in the bed of river, thence north 47° east 2,640 feet to the northeast corner, thence south 2,640 feet to the southeast corner and place of beginning, lying in the bed of the Red River except, that parties of the first part retain a one-fourth carried interest in and to the said described premises.
It is expressly stipulated and made a part of this conveyance that there shall be delivered to the credit of the parties of the first part, their heirs, or assigns, free of cost in pipe line, the equal one-fourth of all oil produced from the said premises, together with all and singular the hereditaments and appurtenances thereunto belonging.
To have and to hold the above described premises unto the said Adrion Skinner his heirs and assigns forever, so that neither they, the said grantors or any person in their name and behalf, shall or will hereafter claim or demand any right or title to the said premises or any part thereof; but they and every one of them shall by these present be excluded and forever barred.
In witness whereof, the said parties of the first part have hereunto set their hands the day and year first above written. ROBERT L. Hart.
WALTER C. DAUGHERTY. EVANDER KISER.
A. C. GODDIN. JAMES L. TAYLOR.
THOMAS R. FOSTER.
Their Attorney in Fact. STATE OF OKLAHOMA,
County of Tillman, ss: Before me, the undersigned, a notary public in and for said county and State, on this 19th day of July, 1919, personally appeard James L. Taylor, to me known to be the identical person who executed the within and foregoing instrument as attorney in fact of Walter C. Daugherty, Robert L. Hart, Evander Kiser, A. C. Goddin, James L. Taylor, Thomas R. Foster, Floyd N. Thompson, and James Crossland, and acknowledged to me that he executed the some as his free and voluntary act and deed and as the free and voluntary act and deed of the said grantors for the uses and purposes therein set forth. (SEAL.]
Earl LEAR, Notary Public. My commission expires September 24, 1921.
(Indorsed:) Quitclaim deed. From James Crossland, Floyd N. Thompson, Walter C. Daughtery, Robert L. Hart, Evander Kiser, A. C. Goddin, James L. Taylor, Thomas R. Foster, to Adrion Skinner. State of Oklahoma. Tillman County, ss. This instrument was filed for record on the 20th day of Aug. 1919, at 8 o'clock A. M., and recorded in Book 93 of at page 579. Fees $1 Mrs. Nora Stagg, County clerk, by L. M. Whitelock, deputy.
Colonel Roots. That deed is made from the eight locators of this claim and the one I have read happens to be the Judsonia and that is Claim No. 1. The deed is to Adrion Skinner, trustee. Adrion Skinner was the trustee for the Burk Divide Oil Co., the original company.
Mr. DYAR. To whom did these documents run?
Colonel Roots. To Adrion Skinner, trustee, and Adrion Skinner was trustee of the original Burk Divide Co.; that was an incorporated joint stock association, and under the law title to property had to be in the name of a trustee, or at least the lawyers so advised them. I will not put in the others, as it would only encumber the record. Then the deed from Adrion Skinner to the Burk Divide Oil Co, refers to the instru“ ment I have offered for the record and conveys to the Burk Divide Oil Co. this same property with this statement:
“Subject, however, to the one-fourth royalty retained in the conveyance by the original locators to Adrion Skinner.”
Mr. BURTNESS. What is the date of this latter conveyance?
Colonel Roots. This is November, 1919. He held it as trustee and was then requested to convey it to the company.
Mr. BURTNESS. To the corporation?
Colonel Roots. No; to the original company. They thought it had to be held by the trustee but they got other advice to the effect that it could be conveyed to the company.
Then on page 36 of my abstract is an instrument where the old original unincorporated Burk Divide Co. transferred it to a corporation. I am going to ask leave to read this for the purpose of showing how the parties regarded these instruments and what they were. I offer this instrument, the whole of the instrument, on page 36 of this certified abstract. This is taken from the recorder's record of Tillman County. It is headed “Assignment of oil and gas lease," and it is recorded in vol. 11, at page 247 of the deed records, or it just says “Records of Tillman County, Okla."
“Assignment of oil and gas lease. “Know all men by these presents: “That Burk Divide Oil Co., No. 2, a corporation, of Grandfield, State of Oklahoma, in consideration of the sum of 2,000 shares of capital stock of Burk Divide Oil Co., Consolidated, in hand paid, the receipt of which is hereby acknowledged, do hereby, sell, assign, transfer unto Burk Divide Oil Co., Consolidated, a corporation, its heirs (successors) and assigns, all of the following described leasehold interest in and leases of the following described real estate and premises, together with all its rights, licenses, and privileges in and to or concerning the property described in said leases or intended so to be:
“A certain lease bearing date the 7th day of July, 1919, made by F. M. Crane, B. H. Woodruff and Taylor, to Adrion Skinner, and recorded in the office of the county recorder of and for the County of Tillman, State of Oklahoma, in book
-; of certain real estate and premises situate in the County of Tillman, State of Oklahoma, as follows, to wit:
“Three fourths interest of 160 acres of land situated in the bed of Red River, Tillman County, Okla., located by the Bell Isle Developing Association, and described as follows:'
Then follows the description by metes and bounds, and it continues:
“This assignment is intended to convey all of the interest of the Burk Divide No. 2, to the above mentioned lease and all of the oil and personal property belonging to the said Burk Divide Oil Co. No. 2.
“To have and to hold the same unto the said Burk Divide Oil Co. Consolidated, a corporation, its heirs (successors) and assigns forever, subject, nevertheless, to the rents, royalties, covenants, conditions and provisions therein mentioned."
It is executed by the Burk Divide Oil Co. No. 2; it is acknowledged before a notary public and recorded in the records of the county recorder, showing that it is a lease.
Mr. BURTNESS. What is the date of that?
The CHAIRMAN. Colonel, we do not want to go too far into this assignment matter.
Colonel RootE. Well, I will stop right there, Mr. Chairman. I will say, however, that the other assignments of the other two claims are just like this.
Now I have here a contract which has never been placed of record.
It is a private contract and it specifically stipulates that if Skinner, the trustee of this original Burk Divide Oil Co., failed to drill the wells specified and furnish the money necessary, the original locators of the land could go in and retain.
Now on that showing, I say that these are in effect leases; the original locators, to this day, own their interest in this property, and in the case in the Supreme Court the 24 original locators were joined as parties with the Burk Divide Oil Co. In the pleadings there, their interest is alleged; it is alleged in my brief that we have a leasehold interest. That was filed a year and a half ago. It has been treated as a lease. It is true it is drawn in that crude way, on that piece of paper, but the effect of it is a lease. The contract accompanying it clearly shows it such; that they had to do certain things, within certain times and, if they did not, the parties who executed the instrument could go in and take the receipts of the property.
Mr. BURTNESS. Was the contract executed on the same date?
Colonel Roote. I think so. It is a very crude affair; it is drawn in July, 1919. I think, however, that is wholly immaterial. In the case of Miller vs. Chrisman, it was decided
Mr. Collins. Give the volume and page.
Colonel RootE. Yes. I would like if the committee would allow me to read just two paragraphs of this decision. This very question was before the Supreme Court of California, where eight men located an oil placer claim; seven of them, before discovery, assigned to the eighth, and the case got into court and certain parties took the position there that an assignment before discovery could not be made; that is, if the assignment was made, it was an abandonment of the seven-eighths interests and the one remaining could only hold 20 acres. That question was directly before the court and the court states the contention of counsel who took that position, as follows:
“Stating the proposition in a sentence, it is this: Where a location has been made by associates, those associates have no right or title which they can convey before the location is perfected by di ry, and their attempt to convey
You asked me to give the volume. This is in 140 California, page 450, the case of Miller v. Chrisman.
Mr. Dyar. That case went to the Supreme Court?
Colonel Roots. Yes, sir; it went to the Supreme Court of the United States. This continues
and their attempt to convey results in an abandonment of their claim and the destruction of the whole location.' That was the contention there. Here is what the court says about it:
* It sufficiently appears from what has heretofore been said that a location such as this, made by eight associates, is but a single location, each associate having an undivided eighth interest in the whole. It further appears that certain valuable rights become the property of such locators even before discovery. They have the right of possession against all intruders * and they may defend this possession in the courts. * They have then this right of possession and with it the right to protect their possession against all illegal intrusions, and to work the land for the valuable minerals it is thought to contain. We can not perceive why these rights may not in good faith be made the subject of conveyance by the associates as well before as after discovery. There is certainly nothing in the expressed law upon