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the subject to lead to the view that this can not be done, and there is much to give countenance to the contrary conviction. Thus the law expressly provides that if one of the colocators abandons his clain or interest, by refusing to bear his proportion of the cost of the assessment-work, such abandonment does not, as would be claimed, work the destruction of the whole location, but ‘his interest in the claim shall become the property of his coowners who have made the required expenditures.' * * * It is to be borne in mind that a location such as this, though it contains 160 acres, is still a single location, a single claim, with undivided interests, covering the whole of it.
“Any work done upon the claim is done for the benefit of all the colocators. It is undisputed that when the location has once been perfected one of the associates may by conveyance acquire all of the rights of his fellows, and we can perceive no reason why the right to prosecute the work and perfect such a location by discovery may not itself be vested in a single one of them. If, instead of conveying, the seven associates had stood idle and refused to contribute their share to the necessary work of developing, and Miller under these circumstances had alone prosecuted the work to a successful discovery, no one could contend in the face of section 2324 of the Revised Statutes of the United States but that Miller would have acquired the rights of all and would have had a perfected location covering the whole 160 acres. If, then, by their abandonment, without a conveyance, Miller would have acquired the right to prosecute the work and perfect the whole location for himself individually, it is impossible to see why a conveyance to him of their right, instead of an abandonment of it by a refusal to join in the work, should effectuate any different result.
“For the foregoing reasons the judgment and order appealed from are affirmed.” The CHAIRMAN. That case was appealed to the Supreme Court? Colonel RootE. Yes, sir.
The CHAIRMAN. And it was contended that while the decision was affirmed, yet the Supreme Court did not comment upon whether or not an assignment is valid.
Colonel Roots. No; that is true.
The CHAIRMAN. And the Land Office, in 39 L.D., page 460, said that the Supreme Court's decision in this case was not authority that an assignment is valid before discovery
Colonel RootE. Decidedly. That is the case of the Bakersfield Fuel & Oil Company Case that was referred to by Mr. Macey yesterday. Well, now, this case was appealed to the Supreme Court of the Unitd States, the whole case, and the Supreme Court of the United States affirmed this decision without discussing, however, the matters that are here mentioned; but the whole decision is affirmed in 197 U. S. by the Supreme ('ourt of the United States. And whether it was or was not, the reasoning here addresses itself to me much more forcibly than the reasoning in the Land Office decision. This is undoubtedly the law. However, there is no conveyance of these interests. Those 24 farmers at Grandfield still have their interest in this property; they merely got the Burk Divide people to agree to put up the money to drill the wells and, for that, the Burk Divide were to have a certain part of the proceeds. That is all in the world there is in it and here is the contract.
Mr. DRIVER. What is the issue in that case that was discussed and made the basis of the opinion of the Supreme Court?
Colonel Roots. What is that?
Mr. Driver. In the opinion of the Supreme Court, I say what was the issue in this particular case here that was discussed and to which the decision is peculiarly addressed?
Colonel Roote. I do not recall; but the decision was affirmed. The volume is here.
Mr. DRIVER. But, evidently, in affirming it, they gave some reason and, in doing that, evidently they referred to some one or more of the issues involved in this particular case.
Colonel Roots. The appeal brought up this question and that was presented to the court, but the court, without giving any reasons, affirmed the decision of the Supreme Court of California.
Mr. DRIVER. Without discussing any issue involved in the case?
Colonel RootE. But I say that there has been no conveyance. These original claimants were in the Supreme Court; their interests appear and it appears in this testimony that they still have the property. It was they and not the Burk Divide Co. who applied for the patent; it was they and not the Burk Divide Co. who asked for a lease and who filed an amended application for patent.
Mr. Collins. You contend those are merely leases?
Mr. DYAR. But, Mr. Roote, you have not yet told us about that transfer or conveyance by the Burk Divide Co., have you, which you said the other day was after or about the time of the appointment of the Federal receiver and for whom and on the basis of an investment of $900,000 and odd you made an impassioned plea that you be given a lease of all this land?
Colonel RootE. I explained that fully, Major Dyar, that these individual gentlemen owned a very large part of the stock of those three original companies and had bought that stock before the Texas rangers had put them out of possession, and they later formed this corporation and the three unincorporated companies thereupon, whatever interest they had (and I say they have nothing but a leasehold) passed their interest on to the corporation; that this corporation, having Indiana stockholders and some in St. Louis and elsewhere, bought the remaining stock in those three companies.
The CHAIRMAN. You claim you have a full explanation of that in the record.
Mr. BURTNESS. And you have actually given the dates of those transfers in the documents referred to here just in the last few minutes.
Colonel RootE. Yes, sir.
Mr. LARSEN. Assuming the committee will try to pass such legislation as will do equity to all parties concerned in this matter, regardless of whether a transfer would be legal or illegal, is the bill sufficient, as it now stands, to protect the interest of all parties, that is, to protect the equities of all parties? Is the language of the bill such that it would do that, without amendment?
Colonel Roots. Yes, sir.
Colonel Roots. Yes, sir. I hope you will allow me to say one word more. There were two Sanders Bills. In the first one I have here, we sought to have this matter referred to the Secretary of the Interior to be determined under the provisions of the mining laws.
Mr. LARSEN Now in the Sinnott Bill—you are not addressing yourself to that? Colonel Roots. No; to the Sanders bill.
Mr. LARSEN. Is it true of the Sinnott bill on that same point, too; is it sufficient in that particular?
Colonel RootE. As I said the other day, I think the Department Bill, as I would prefer to call it, introduced by the chairman at the request of the Department, does
not give directions to the Secretary of the Interior as to whom this land shall be given, but it gives powers that are entirely too broad.
Mr. Larsen. But in this particular respect, with reference to protecting the interests of all parties, regardless of whether or not these transfers, if we should find they were transfers, are legal or illegal, is the Sinnott bill sufficient to protect them and give them their rights?
Colonel Roots. It is possible they could be protected under that bill; but, on the other hand, it is possible the Secretaty could cut the land up and give it to whom he pleases, the way I look at it. And we feel that Congress should state what parties, upon making a showing, are entitled to leases--that is our contention--and that it shall not be left as a matter of discretion to the Secretary of the Interior to determine.
Mr. LARSEN. That is, among the classes, certain classes should be granted relief?
Colonel Roots. Yes, sir; that is our contention. And it is based upon a principle that is older than the civil law. That came out of the language that he has the better title who was first in point of time.
Mr. LARSEN. I had reference simply to the language of the bill, whether or not it would protect the rights of all parties?
Colonel Roots. Yes, sir. We are perfectly willing to have any bill passed that will say that it shall be determined by the Secretary of the Interior upon the mining laws and, if we can not show that we did the things that would have made valid locations had the mining laws applied and that we maintained them, then we would not be entitled to any property. That is our contention exactly.
I thank the committee for permitting me to make this explanation.
ADDITIONAL STATEMENT OF MR. W. W. DYAR. Mr. Dyar. Somewhat out of order, but while we are on this subject, let us pursue it a little further.
My contention was and is, and it is the fact, that these locations were absolutely invalid. They count for nothing as a matter of equity, because it does not involve any expense to go out and stick down some stakes. Whatever equities these parties may have, if they have any, must be based upon expenditures for developing the land for oil and that resulted in developing the land for oil.
Now, then, in the case of Mr. Testerman. As explained here to-day, the original locators, I judge under that situation, still have their proportionate interest in the lands-I mean if they were right-in whatever there is to be had. They have not gone in—there is no party there claiming a right or an equity who bought into an existing law suit. Now I take that to be the distinction between the two parties.
Now Mr. Roote here the other day, as you all very well remember, acknowledged that the $950,000, which he was in such an impassioned manner claiming as a basis of an equity, was paid in, the purchase was made, about the time the Federal receiver was appointed. In other words, they bought into a law suit, right in the midst of it, when the lands had been once in the hands of a Texas receiver and again were in the hands of a United States receiver and there were five different parties litigating for the right to it. Now I say the man who buys into a law suit while it is going on runs the risk of the result, both in law and in equity.
Mr. BURTNESS. In that connection, would you give to those people who buy into the law suit less consideration than you would give to the people through whom those people, in turn, claim?
Mr. DYAR. Surely. If there is any equity at all and the original parties who put in the money to develop the land still have an interest, whatever it may be, and they are the parties who will receive the bounty (and it is a bounty of Congress so far as the money in the hands of the receiver is concerned), they are the parties who have an equity if anybody has.
Mr. BURTNESS. You mean the equities they would have do not succeed to the person who buys into the law suit?
Mr. DYAR. Who buys into a law suit, no; because the whole thing is without any legal foundation whatever. Now just think of those 45 claims located by people in Denver coming away down there and going out and sticking stakes down over the river whose claims are absolutely invalid, without a shadow of legality about them, and then coming here and saying “We are entitled, by reason of having done that, to the bounty of Congress." You see, the equity, whatever it is, the moral right, the moral claim to some consideration, is not based on the mere act of going out and trying to get something for nothing, where the law says that act is utterly illegal; but it is spending money on the land resulting in its development that has resulted in legislation for relief that has been given, is it not?
The CHAIRMAN. Why, they must have made expenditures on the property.
The CHAIRMAN. Did you have that in mind when you were referring to those Denver people?
Mr. DYAR. I had it in mind in a general way, yes. But the relief which you have heretofore extended has been to those people who finally succeeded in developing the land for oil and their developments did not, as I say; they never resulted in anything
The CHAIRMAN. No; we have given relief to others than those.
Mr. DYAR. Yes, in the single case where they went on to the lands that were withdrawn prior to the act-previously withdrawn and before the validating withdrawal act of 1910 was passed.
The CHAIRMAN. Well, those under Sec. 19 they did not develop oil necessarily, If they had spent $250, they were given relief under Sec. 19 of the Oil Leasing Act.
Mr. Dyar. They were given the right to lease the land, you mean?
Mr. DYAR. Yes. That brings us to another thing. As far as the United States was concerned
The CHAIRMAN. There were some of these people that went on after the withdrawal in the oil leasing act.
Mr. Dvar. Yes, I know. These gentlemen all talk about lands. I have been trying to talk something about money, and I make no apologies for thinking the United States ought to have some money when it wins it in fair litigation. Now I thought I had made it clear before that the Department of Justice is not here saying that these people, whether they were in good faith or not, who actually spent some money on these lands, should not be given a preference to a lease.
The CHAIRMAN. Before you go into that, though—my mind was diverted for the moment when you were talking about those to whom we gave relief under the Oil Leasing Act. Of course, we gave relief in a number of cases to people who had not made any development at all.
Mr. DYAR. I understand.
The CHAIRMAN. Under Section 37, if any one was upon the land at the date of the passage of the act, in diligent prosecution of work
Mr. DYAR. Yes.
Mr. Dyar. My statement was a little broad, but what I have in mind is this: Here is a fund of some $3,000,000. Now the United States has won that in a fair fight and by strenuous exertion, and the putting down of stakes, as I say, was utterly futile. And these gentlemen all talk about a right to lease it. Now, we do not care about who gets the lease. We would like to see the right man get it and we realize there must be some legislation authorizing the leasing of these lands; but, while I do that I maintain that under any definition of good faith that is applicable to this case,
of them are or can be in good faith, because they all knew of the opposing claims. Yet entirely aside, even, from any question of good faith, those who actually spent money on this land, in greater or lesser sums (and their equities would depend on the sums expended, somewhat), should be given the preference right to a lease.
But, as I say, these gentlemen are all talking about land. Now these bills provide not only that they have the right to get the land but, if I understand them correctly, they mean that seven-eighths of the $3,000,000, or whatever sum it is (which absolutely, under the decision already made, will be adjudicated to be the absolute moneys of the United States, just as much as if they were in the Treasury raised by taxation), shall be paid over to whoever gets his proportion of the leased lands.
Mr. BURTNESS. In that connection, just assuming nothing is done, just how would that money be distributed by the court?
Mr. DYAR. If nothing is done, I do not know exactly. There are laws and regulations by which it would go into the Treasury of the United States, I think into a fund from moneys arising from the public domain, or money of that kind obtained under the law in regard to trespass. We have a timber trespass law and the money we collect under the timber trespass law goes into the Treasury. I have never followed it through, but there is a fund there and I think it is probably segregated from the funds raised by taxation. It may have a different disposition; some proportion of it may go into the reclamation fund.
Mr. BURTNESS. In that event, what consideration would be given to those who owned the property, other property, that was seized and that has been used by the receiver, which the receiver did not buy?
Mr. Dyar. Well, I think they ought to be paid back the value of the property that they left there on the same theory as they have been paid back for the wells they dug and which produced oil; but I imagine that the Supreme Court is going to see to that later. I do not know. Some of those claims have been paid and I do not know what that situation is. But surely we are not going to come here and oppose the recovery or the payment out of the fund in the receiver's hands, or in the Treasury (if it goes into the Treasury) of those men who were there on that land, just like an occupying claimant in good faith-and I concede from the testimony most of them had that. They are entitled to get back most of the improvements they had on the land, whether attached to the realty or not, and I rather think the Supreme Court thinks it has done that or that it may still be done.
Mr. BURTNESS. Is it your theory that it is the Government who has really produced this oil since the receiver took charge?
Mr. DYAR. Yes, it has produced it and it came out of the land belonging to the United States, to which nobody else had any valid claim whatever, and it is money of the United States.
Mr. BURTNESS. There is no question that it came out of the land which belonged to the United States; but the work which has done, the machinery and everything else that was used there, in getting the oil out of the land which belonged to the United States, was property which belonged to somebody else and which somebody else had provided.
Mr. Dyar. Surely.
Mr. BURTNESS. And the agent who was in charge doing the work was not the agent of the Government; he was the agent of the court. He was there for the purpose of protecting the rights of the Government as well as the rights of individuals.
Mr. Dyar. Certainly.
Mr. BURTNESS. Now, then, I am just trying to get your opinion; I am not arguing the matter with you, but just tryimg to get your point of view, as to whether all of that work which was done since the receivership should accrue to the benefit of the Government, and should accrue to the benefit of the Government alone, and that you should regard the individuals whose property was taken simply as individuals who in