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that and they simply looked at the broad declaration in the mineral law, which was not true when it was written, in the literal sense; it was utterly impossible it could have been true. It does not apply to all the lands of the United States, because there are exceptions of Indian reservations, of military reservations, of Navy lands and of a dozen other kinds of lands that have been appropriated to some particular kind of use, and the mineral laws do not apply to them any more than the other general land laws do, although they contain no exceptions.
Of course, this is only going to the question of good faith, but I am perfectly willing to concede that Mr. Testerman and the original locators of the Burke Divide claims, if they had had similar advice, had that measure of food faith which would enable them to get back their improvements when they wrongfully and mistakenly went upon somebody else's land and lost it; but I do not concede at all that is the measure of good faith which would give them the substance of the property. And I might say, and I repeat, that they had no occasion, no reason, and there was no practice in that country-none of them knew anything about the mineral laws as they did in the mining States; they just had inquired of somebody in Colorado who, I believe Mr. Roote said, told them they could get land under the mineral laws; anybody can. There was no presumption in the minds of the people that Oklahoma lands were subject to the mineral laws and they were just taking a shot at it; a shot was taken at it by all these people.
Mr. DRIVER. Your position, if I understand you, is that so far as the money that has accumulated and is now in the hands of the receiver is concerned, that out of that, those upon whose claims these producing wells have been put from which this money was received, should be repaid the money they actually paid out in bringing about the production?
Mr. DYAR. Yes.
Mr. DRIVER. And you stated further that, in your opinion, some legislation was necessary in order to properly handle these lands by the Interior Department to get the benefit of the oil. What suggestion have you made or would you care to make about that?
Mr. Dyar. If you want me to make a suggestion, I can do it, but I would like a little more time to think about it, because I have been too busy thinking about the arguments these gentlemen have made here to consider it. But I can not bring my mind to think that the mere going out and staking out claims, which cost practically nothing and were utterly invalid, unaccompanied by development, would give, for instance, the Denver people with 45 claims, which would take up an enormous area in the river, to the exclusion of anybody else who wanted it. So far as the conflicts between the Burk Divide people and the Texas claimants and the Sparks lessees are concerned, I confess I am somewhat up a stump. I do not like the idea of rewarding people who obtained their possession or went into possession under the protection of a military force and in defiance of the process of a Federal court, even though it was on the ground and the theory that the Federal court's territorial jurisdiction did not reach that far
The CHAIRMAN. You mean the Texas people ignored the Oklahoma Federal court?
Mr. Dyar. Yes. Of course, Mr. Harrison comes in here and says he did not know anything about any rangers, he did not know anything about any receiver, he did not know anything about any process. He said he went there and Sparks was in possession and that is all he knew about it; but Mr. Harrison was an Ohio lawyer who did not know anything about the facts on the ground, and it is easy for him to make those statements. He may have gotten that general impression; but those people who went in on that ground, the people who invaded the possession and took the land, knew, of course, and you can not accept a statement of that kind, because the testimony is there, was in actual force there all the time.
Mr. BURTNESS. Right there, Major: As you are arguing the matter now, you want the successors in interest of Sam Sparks to be charged, practically speaking, with the knowledge Sparks had; or, at least, that the committee should deal with these successors in interest of Sparks in about the same way the committee would deal with Sparks, if he was before us?
Mr. Dyar. No; no.
Mr. BURTNESS. But, in the other case, in the case you talked about a few minutes ago, you felt (I think you were talking about the Burk Divide stockholders)that they should not have as many rights as the original locators would have had, through whom they traced their title. I do not think you are consistent.
Mr. DYAR. No, no; you misunderstand me entirely. Whoever took an assignment of a Sparks lease and went into possession (I mean the men who were actually operating for the concern that took that lease), the men on the ground knew all of the facts.
Mr. BURTNESS. Yes.
Mr. Dyar. I only spoke about the lawyer from Ohio coming here and making a great plea, and very honestly, maybe, because he did not know anything about the facts; but the company is bound by the acts on the ground of its agents who are doing these things. That is what I meant to say.
Mr. BURTNESS. Well, it is a poor rule, however, that does not work both ways. If we are to go back to the original people in the one case and try to determine what the rights of the successors are by the situation as it existed on the ground in that case, then I think we ought to be consistent and to apply the same rule in the other case.
Mr. Dyar. I can not see any inconsistency.
Mr. DRIVER. Take your view and let me ask you again, Major, to state just the provisions which would be necessary in order to enable the department propertly to dispose of them, to operate them or to get the benefit of the oil production.
Mr. DYAR. I would not like to venture on it without a little time. I have had too many other things to think about. The kind of equity-for instance, take the Burk Divide people, they are always in a position, if you pass this legislation as it is, to take practically everything to the utter exclusion of everybody else in that territory. The developments of the Testerman land are comparatively limited. Practically all of this fund has come out of land which is covered by the claims of the Burk Divide people. Now, I would not like to say that they should have it all, and the men who went in under a Spark's lease should have nothing, although he did go and probably must have known he was going in under military protection and in defiance of the Federal court. I do not know.
Colonel ROOTE. Will you allow me to correct one erroneous impression that has evidently gotten into the record?
Mr. DYAR. Yes.
Colonel RootE. I think you have stated several times that the Burk Divide was repaid what it had spent.
Mr. DYAR. No.
Colonel Roots. The record shows the Burk Divide spent, before they were driven away, more than $107,000 and they only got back $46,000 of all that was spent before they were driven away.
Mr. BURTNESS. Major, if I understand you correctly, then, it is rather your viewpoint that if any relief is to be given by legislation, the relief should be given to the individuals who are in possession and have made actual developments, and to be given not upon the territory that they made claims on, or anything of that sort, but simply with reference to the territory which they have specifically held and developed?
Mr. DYAR. That is my general proposition. I think that is right and just.
Mr. BURTNESS. Well, I confess there is a great deal of doubt in my mind as to whether that should be the proper test to apply.
Mr. DYAR. Yes.
Mr. BURTNESS. But I can not agree with you in the other contentions you are making, that these people did not act in good faith in the beginning; nor do I agree with you that in the one case we should go back and inflict the same kind of punishment upon some of those stockholders who have acted in good faith as you would have inflicted upon Sam Sparks, if he was here asking for relief, while, in the other case, we should not take that into consideration.
Mr. Dyar. You misunderstand me entirely there.
Mr. Burtness. That we should not take into consideration the good faith somebody else may have had or had at the beginning, so long as his successors realized they were buying into a lawsuit, when they commence to claim certain privileges here.
Mr. DYAR. As I say, you totally misunderstand me. I say that nobody took an assignment of a Sparks' lease and went on to that ground to develop it without knowing they were going in under the protection of the military—I suppose they were enforcing a decree of the Texas court-and defying the process of a Federal court in Oklahoma.
Mr. BURTNESS. Yes, but you did refer to the impassioned plea made here by Col. Roote, on behalf of the stockholders of the Burk Divide Co., and emphasized particularly when those people invested their money, if I understand your argument at all, they knew the property was claimed by three or four different sets of litigants, in addition to the United States, and that then they knew they were buying into this law suit; and, because of the fact they knew they were buying into a law suit, you did not feel they were entitled to the same consideration and that they did not have the same equities as the original locators would have had, had they stayed in.
Mr. DYAR. Let me ask you a question: Do you think where there is actual litigation going on over some subject matter, whether it is land, or timber, or anything else, and a man comes along and he looks on awhile and says, “I think this man is going to win; I am going to buy him out, or an interest in it,”-is not that buying into a law suit, and isn't it just and right, in any such case, that the man who does that shall abide the result of the decision? It is certainly true as between any private individuals, and the exception that would be made here is because this party is the Government of the United States. Has not the Government some rights?
Mr. BURTNESS. I won't argue about that at all.
Mr. DYAR. Now, it has been repeated here, over and over and over again, that it was these people who showed the United States that this was valuable land and, therefore, they ought to be rewarded. I deny it. I want to introduce Mr. J. A. Tellier, who was connected with the investigation, and to ask him to make a statement, if you please.
The CHAIRMAN. Have you concluded, Major?
The CHAIRMAN. It is 20 minutes to 6, and we evidently can not conclude this evening
Mr. DYAR. I do not know how long Mr. Tellier will be available, but it won't take but a moment.
It has been said here repeatedly and repeatedly and repeatedly that Mr. Testerman showed us, and that the Burk Divide showed us the value of this land and that they were the pioneers; that the General Oil people put down wells and they were pioneers, and they showed us the value of this land. Well, now, did any of them? Mr. Tellier, will you tell us what you know about the Texas Chief well? I can say, though, to expedite matters, that the Texas Chief was a very productive well that was brought in right on the brow of the bluff, at that point [indicating on map), and I understand that that was the well that first, I was informed by Judge Carrigan, who was the man who was interested in it, and I sent him a telegram last night to give me the particulars : about it and I have not heard from him yet—that was the well that first came in in this region, and I think that is true. And it was a good while before any of these others came in.
Now, Mr. Tellier, you were down there and you tell us about how you can fix the time, as nearly as possible, from your own knowledge, as to when that well came in.
Mr. TELLIER. Mr. Chairman and gentlemen-
STATEMENT OF MR. J. A. TELLIER.
Mr. TELLIER. J. A. Tellier. I was, in August, 1919, special assistant to the Attorney General and was directed by the Attorney General to make a preliminary investigation to see what rights, if any, the United States had in the situation along the Red River, and I went down to the Territory in August. By reference to a teiegram which I sent the Attorney General, I find I was on the ground on the 19th of August, 1919. At that date, I was piloted around by Judge Carrigan and others and we visited what I was told was the Texas Chief. At that time, I understood that the well had been brought in some time. The date, I do not know now, and I do not know that I knew at the time. The well was not flowing then; but I was advised by the principal owner, whose name I do not know recall, that it had been flowing and the crustations on the derrick showed that it had been shooting oil and the well was open at that date and we were shown running oil from the Texas Chief.
The location of the Texas Chief, I suppose, you can give a great deal better than I can, Major.
Mr. DYAR. It was right at the brow of this little hill (indicating on map]. I got Mr. Kidder, of the General Land Office, who made surveys all around down there, to show me where it was, and he located it right there (indicating).
Mr. BURTNESS. How far from the Testerman well?
Mr. DYAR. The Testerman well is right there (indicating); that is, about a mile and a quarter.
Mr. Gore. Pardon me; about 2 miles, Major.
Mr. Dyar. There is one section; that would be a mile. Well, yes, that is right; 1} or nearly 2 miles.
Mr. BURTNESS. I would like to ask Mr. Tellier if he knew or understood at that time that this land south of the medial line was land belonging to the United States.
Mr. TELLIER. Oh, the whole question was in a fluid condition when I went down there; that was the purpose, I think, of sending me down there, to see what rights the Govenrment had or should assert.
Mr. BURTNESS. Whether the Government had any land down there, or not; was that one of the questions?
Mr. TELLIER. Yes. I was first to look into the physical situation; then I came back and wrote a memorandum or a letter to the Attorney General and my connection ceased, I think, about January, in the case.
Mr. BURTNESS. You were the Christopher Columbus who discovered this land south of the medial line of the river did belong to the United States, in so far as the Government officials were concerned? (Laughter)
Mr. TELLIER. I have been in the Department of Justice for a good many years and used to be in the Interior Department, and I think I had the Government point of view; and, since it was up to an executive department, my thought was to reach out and take everything and, if the Government was not right, it ought to be determined by the court and not to let anything go by as an executive branch of the Government, frankly speaking, and it happened that was the way the decision turned by the Supreme Court.
Mr. BURTNESS. Did you give an opinion to the effect this land was land belonging to the United States? I refer, of course, to the land south of the medial line.
Mr. TELLIER. Yes; in my report to the Attorney General, I set that out and cited authorities, and I worked with Major Dyar on that.
Mr. BurtnESS. What was the approximate date of that report when you arrived at that conclusion?
Mr. TELLIER. I think my report was handed in the very last of November.
Mr. TELLIER. 1919. While I was here, the original suit was instituted by Oklahoma v. Texas.
The CHAIRMAN. Is that well determined now to be over in Texas, this Texas Chief?
Mr. TELLEIR. Yes; as I understand the decision of the Supreme Court, this well was, put into Texas. It just up on the edge of the bluff.
Col. RootE. Oh, it has always been there.
Mr. DYAR. Oh, it does not make any difference. These people are claiming down in this region this is wildcat, and they each say, “I was the one that showed the way,' whereas, as a matter of fact, that was the first well down and it gave a tremendous impetus to all this drilling. I just wanted to get this fact before you.
Mr. Driver. At the time you were making this investigation, were you advised as to the date when this well was brought in—the Texas Chief?
Mr. TELLIER. I think I was, but I can not recall definitely. I have an impression it was brought in several months before, but I can not give you definite information about that. It certainly is available.
The CHAIRMAN. Is that all you want to say, Mr. Tellier?
Mr. Dear. I am not through with Mr. Tellier on this. Mr. Tellier may be a little confused about the matter. Was not the special' matter you were sent down there on really to find out whether the food plain south of the sand bed was in Oklahoma and belonged to the United States; was not that the chief subject, and you went down there with experts, did you not, to investigate the condition of that land over there?
Mr. TELLIER, As I understood.
The CHAIRMAN. Does it make any difference what he went down there for? He has simply testified about this Texas Chief.
Mr. Dear. I do not care to give a wrong impression.
Mr. Gore. Did it come to your attention there were dry holes on the Texas Chief, in the investigation to which you refer?
Mr. Tellier. Senator, I paid no attention whatever to the interests of private claimants, because I conceived my duty was to see whether the Government had any interest in there. That is what I kept in mind and dealt with all the time.
The CHAIRMAN. Mr. Testerman, you may make a statement now, briefly. You see the bearing of this?
Mr. TESTERMAN. I see the trend of this; yes, sir. I can not be accurate in the dates of the month, but in May the material was on the ground of the Texas Chief. I was hauling my material about the same time.
The CHAIRMAN. May of what year?
Mr. TESTERMAN. After I went in in December. The Texas Chief came in in June;
Mr. TESTERMAN. No; they were drilling in June, and the last part of June the well came in. However, there were three wells out in the flood plane. There is a dry territory between what is known as the Burkburnett and the Northwestern. The wells to the west of the northwest township were dry.