COMMITTEE ON THE PUBLIC LANDS,
HOUSE OF REPRESENTATIVES,
Monday, January 15, 1923.

The committee this day met, Hon. Nicholas J. Sinnott (chairman) presiding. The CHAIRMAN. The committee will come to order. Mr. Dyar, before you resume your statement, can you give us approximately the cost of this litigation to the Government?

Mr. DYAR. I can not do it to-day, but our accounting officers are now at work trying to get, as nearly as they can, the exact cost. I do not think we will be able to give it with absolute accuracy, but we will be able to give it approximately.

The CHAIRMAN. Could you give us what has been paid the receiver in salary?

Mr. DYAR. Yes; I think we can.

Mr. VAILE. And the receiver's expenses.

Mr. LARSEN. I suggest that it would be more proper, and make a better impression on the committee, if all of those expenses could be put together. The CHAIRMAN. Yes; you may put them together.

Mr. DYAR. I did not bring the paper with me this morning, but I contemplate putting them in together.

Mr. RAKER. I have looked over these various decisions, and particularly this last one, of May 1, 1922, and I am wondering whether the Attorney General's office, and also the other gentlemen, have come to a conclusion as to whether or not the committee has any jurisdiction in this matter until the Supreme Court finally determines where the right line is. I just put that out as a sort of feeler.

Mr. LARSEN. Mr. Dyar, I asked you a question the other day, but we adjourned before it was answered. It was with reference to the channel of this river, and in connection with your statement regarding the decision of the Supreme Court of Texas in 1880, in which decision it was decided that the channel, as it now stands, was the dividing line between Oklahoma and Texas. Mr. DYAR. I will bear that in mind. Now, Mr. Raker, your question wasMr. RAKER (interposing). Whether or not, pending this litigation, we have any jurisdiction?

Mr. DYAR. We thought that the bills prepared by the secretary and submitted both to the Senate Committee and to this committee-although we do not know to a certainty that they will-might interfere with the jurisdiction of the court to go on and decide all of the questions on the record before it. I understand that the Watson bill and the Sanders bill have both been modified and reintroduced, and that they now have a special provision, proper and necessary, I think, that nothing in either bill shall interfere with the pending litigation or take effect until the court has decided all questions and is ready to release the land.

The CHAIRMAN. Is that on the theory that the Supreme Court has original Jurisdiction over the controversy?

Mr. DYAR. Yes. It is an original suit and everything was taken before the Supreme Court; there was no proceeding below at all; it was all in the Supreme Court.

Mr. RAKER. The court goes further and says it is a suit between States. which gives them jurisdiction; that it is a suit by the United States against both States, which gives them jurisdiction, and that incidentally they have

jursdiction over the disposition of the proceeds of the litigation and exclusive control over the same.

Mr. DYAR. Yes.

Mr. RAKER. Is not that your view?

Mr. DYAR. Yes.

Mr. RAKER. That being the case how can the committee intelligently determine as to the equities until the Supreme Court has finally, by its decision, determined where this south boundary line is upon the ground?

Mr. DYAR. Well, I think it might determine the equities without knowing exactly the lands involved. We do not know this exact northern boundary or this exact southern boundary, but we know there is a strip of land belonging to the United States not subject to placer mining location.

Mr. RAKER. But what I am asking is this: Would not the final determination as to where the boundary is affcet the equities of the parties who are claiming this land and the proceeds of the land?

Mr. DYAR. I do not see that it would so far as what we call the river bed proper is concerned. I have already told you that the court has treated this land [indicating on map the flood plain area] on a totally different basis,* and it did so upon the suggestion of the United States.

Mr. VAILE. You are referring to the overflowed plain on the south side? Mr. DYAR. Yes; that overflows at a time of extreme high water. We conceded and did so at the danger of injuring our own case, but we thought it was right-that the peope who had held that land under patents from Texas, long before this controversy arose, had a color of title and that we ought not to exact from them-if we won-any more than the royalty, and that is what the court did.

Mr. BURTNESS. You could not have very well argued otherwise with reference to those claimants.

Mr. DYAR. The fact of it was this: The receiver was appointed and he was instructed to take charge of all these lands clear down to the bluffs [indicating], and he did so. He was instructed to report within 30 days a plan for handling the property. Before that time expired he actually took charge of all the wells and took them over into his own control. Instead of leaving them with the operators, on the idea of taking a royalty proportion from them, he actually proceeded to impound all the production.

Mr. RAKER. You have not presented to the Supreme Court any question with reference to the equity in the other strip of land between the water and the south boundary? That question has never been presented to the court and the question as to where the equity lies in that land is not before the court. The only question is the strict, legal title; is not that true?

Mr. DYAR. No; you are mistaken. We presented that question. We thought they had an equity, by reason of their color of title, to thirteensixteenths of the oil that came out of there.

Mr. DRIVER. It is no concession of title; it is only a concession of the rights of the parties so far as the operation of the property is concerned? Mr. DYAR. That is all.

Mr. DRIVER. And the amount of the royalty the receiver was to handle? Mr. DYAR. That is all. We simply suggested to the court that inasmuch

as there would be expenses of the receivership that he collect one-eighth, that being the usual royalty, and one-sixteenth in addition, with the idea that that would meet the expenses, but, of course, not authorizing the receiver to spend all of the one-sixteenth.

The CHAIRMAN. I do not know that I understand you. Do you think that some of the Texas people are in good faith? Perhaps I did not understand this part of your letter on page 12:

"Also it is apparent that those who drilled wells under the licenses issued by the State of Texas were fully aware of the claims of the State of Oklahome, of the North Shore riparian owners, and of the United States, and so in the case of all parties, whatever their alleged source of title as opposed to the United States, it is evident that none of them can be said to have expended money in the development of these lands in good faith. They took all the risks of the title, with knowledge of all the opposing claims."

Mr. DYAR. Now, if you please, there we speak of the licenses; those Texas licenses only covered parts of the sand bed, the real river bed. One of them came to a place somewhere here [indicating] and ran way down the river. Those licenses did not cover this flood plain land here [indicating]. These lands were covered by patents, and it is the patented lands to which we conceded they had a color of title. But the licenses from Texas, of which we speak there, did not cover the patented lands; they ran up to the middle of the sand bed, and were just like this [indicating]. We have drawn them on a map, which I wish I had here.

The CHAIRMAN. Do you know the area of the patented lands?

Mr. DYAR. No; but I think it is something like 1,200, 1,500, or 1,800 acres. Mr. BURTNESs. Is it as much as one-third of the land in dispute? Mr. DYAR. Well, when we say land in dispute, there are 70 milesMr. BURTNESS (interposing). I mean of that part which is developed. Mr. DYAR. Well, it is about half, and just about half the proceeds of the receivership, I mean, of the total collections of the receivership have come out of this flood-plain land here [indicating] and about half out of the river bed. They are both right here together in a comparatively small compass; 3 miles, I suppose, would cover the whole region that is producing oil.

Mr. RAKER. Then you do not come within the decision of the Supreme Court, and I just want to read this. I am trying to get at this, so that I may think of the matter as it is presented. The court used this language:

“The decree recognizing and declaring that the boundary between the two States is along the south bank of the river and not along its medial line means that the entire river bed is within the State of Oklahoma and beyond the reach of the laws of the State of Texas, and therefore that the latter State and its grantees and licensees have no proprietary interest in the bed or in the proceeds of oil and gas taken therefrom."

Mr. DYAR. The question is, What is the river bed?

Mr. RAKER. The court also used this language:

"Of course, when the exact location of the boundary along the south bank is determined, it may develop that the receiver is holding some land on the southerly side of that line or proceeds arising therefrom, and, if so, the State of Texas and its grantees and licensees will be free to claim the same? The CHAIRMAN. From what are you reading?

Mr. RAKER. The decision.

The CHAIRMAN. Which decision?

Mr. RAKER. The last decision. That being so plain I was just asking that when he started in he give us some idea as to the equitable features he is trying to present.

Mr. DYAR. I confess I am almost unable to grasp your difficulty. The court has said that the entire river bed is in Oklahoma.

Mr. RAKER. That is the point.

Mr. DYAR. But it has not yet decided what constitutes the river bed. Mr. VAILE. And that is the only question remaining to be determined? Mr. DYAR. Yes; we believe it entirely clear from the opinion that the court meant to say that all of this yellow area [indicating], which is the real bed of the river, is in Oklahoma. The only question remaining, in our view, is whether the line falls here at the outer line of the flood plain [indicating] or whether it falls here at the bluff line [indicating].

Mr. RAKER. The court further says that the only question remaining—and that is the one they are going to determine-is where the line is upon the ground.

Mr. DYAR. Yes.

Mr. LARSEN. Is it your statement that the court misinterpreted its own decision-is that right-or that it is ambiguous?

Mr. DYAR. Well, there is no ambiguity about the south line, but there is a latent ambiguity as to the north line, because the court said, in general terms, that it is the middle of the main channel; immediately the north shore claimants say, "We bought when the land on the north shore extended away out to there [indicating the meander line of 1874-75] and we are going to start from there to find the middle of the main channel." That would throw the middle there—farther south [indicating] and would just split in two the productive wells. The Government, on the other hand, thinks that what the court meant was the main channel as it exists to-day, which would throw the medial line up here [indicating] and all the wells would be in the south half.

Mr. VAILE. Do you mean the location of the south bank has been determined? Mr. DYAR. No.

Mr. RAKER. This is what the Supreme Court says on that:

"The decree directed a further hearing to determine what constitutes the south bank, where along that bank the boundary is, and the proper mode of locating it on the ground."

Now, they have decided everything else except that one question, where the boundary line is on the ground?

Mr. DYAR. Yes; that is right; but there is a material difference between the claims.

Mr. RAKER. That being the case

Mr. DYAR (interposing). We will know more about this, I feel pretty sure, by this afternoon.

Mr. RAKER. That being the case, pending the final determination of that important and all important question, how can we determine the equities of those people until we know that fact?

Mr. DYAR. You can be gathering the information, and I feel sure that before this committee rises it will have that decision.

The CHAIRMAN. We can legislate for unborn children, and we can apply this legislation to any land hereafter held to be Government land.

Mr. DYAR. Exactly so.

Mr. LARSEN. I wish you would explain what you understand is covered by the term "main channel," the shifting condition of the main channel, and especially with reference to the decision of the Supreme Court of Texas in 1880.

Mr. DYAR. You see the yellow area and white area lying within the bluffs. The yellow area is just a great bed of sand, and that bed of sand is from 1 to 3 feet higher in the middle than it is at the margins. At ordinary times this

sand bed represents the river [indicating], that is, under the general condition of things. It is always changing, but this represents the river when it is between high and low water, and low water means no water at all. For three months this summer there was not a drop of water there.

Mr. LARSEN. You mean the channel not only includes that blue streak but also that yellow or sand streak?

Mr. DYAR. Yes; and we understand the court has already determined. Those blue streaks may be here to-day and there to-morrow [indicating].

Mr. BURTNESS. But those blue streaks do not pretend to locate the water as it is running to-day or at any specific time, because, as I understand, it changes from month to month.

Mr. DYAR. They locate it as it was running at the time the surveys were made. Now, we have another map superimposing upon those streaks of water the positions at subsequent dates, and after intervening floods they are in different places; then we have superimposed a third one and they are in still different places.

Mr. LARSEN. Construing the channel to be the blue and yellow, you would not say the channel is continually shifting-that is, if you construe it as covering both of those areas?

Mr. DYAR. Yes, sir; I would say that for this reason, that those flood plains are continually washing away and building up.

Mr. LARSEN. The yellow part, too?

Mr. DYAR. No; the white part. For instance, in 1875 that was the cut bank of the river [indicating], that black line. That was the meander line of 1875, but to-day it is away back there [indicating].

Mr. LARSEN. Do you mean by that that at that time it was white sand like the other?

Mr. DYAR. This flood plain is not white sand [indicating]; this is an area that is from 1 to 10 feet higher than the river bed itself; it has trees on it in places; it has grass in places, while in other places it just has sandy hills, lumpy sand piles that are shifting more or less.

The CHAIRMAN. You mean by a cut bank a bank where the water has cut it away?

Mr. DYAR. Yes; that is a most definite thing right along here [indicating]; you can walk right along the edge of this white area and there will be a bank from a foot to a foot and a half high, generally pretty sharp, too; sometimes it will slope so that it will be a little indefinite, but generally there will be a good bank, and then there will come a sand dune piled up there and it will be 10 feet high. Those sand dunes go down when the water is up, and when the current impinges against them they fall in and dissolve.

Mr. VAILE. I notice that in the Senate hearings you have used the expression "cut banks a good deal. When you refer to cut banks do you mean those banks separating the overflowed plain from the sand?

Mr. DYAR. Exactly.so.

Mr. VAILE. You do not mean the bluffs?

Mr. DYAR. No; we had to invent some sort of expressions, and we mean by the cut bank this bank here [indicating] which borders what we call the flood plain areas, those low, flat, sandy areas partially covered with vegetation. That is a cut bank. It follows right around the edge of that white area, and that is what we mean by a cut bank.

Mr. BURTNESS. And you call the outside banks

Mr. DYAR. (interposing). Bluff banks.