KEMMERER v. MIDLAND OIL & DRILLING CO., 229 F. 872

SMITH, Circuit Judge. John S. Woodard, a Cherokee Indian, leased, by written instrument dated December 26, 1911, and.approved by the Secretary of the Interior under date of December 19, 1912, to O. Kemmerer 40 acres of land for five years, beginning on January 1, 1913, for $50 a year, being $2 per acre for the east 20 acres and 50 cents per acre for the west 20 acres. This instrument was duly filed for record on January 21, 1913.

This lease is headed “Agricultural Lease,” and recites that it is executed “under and in accordance with the provisions of existing law and the rules and regulations prescribed by the Secretary of the Interior relative to agricultural leases on restricted lands of allottees of the Live Civilized Tribes.” It is stipulated in said lease that “the lessee agrees * * * to work and farm said premises in a good husbaudlike manner.” Seven times the petition refers to the lease as an “agricultural lease.” On November 6, 1912, said John S.

Woodard made a lease to the Midland Oil & Drilling Company for 10 years of all the oih deposits and natural gas in or under the same land leased by “agricultural lease” to Kemmerer. This lease was filed for record with the superintendent of Union Indian agency the 6th day of December, 1912, and before the lease to Kemmerer was approved by the Secretary of the Interior. It was filed for approval February 18, 1913, and was approved by the Secretary of the Interior April 9, 1913.

Both these leases were executed in pursuance of the authority conferred by the act of May 27, 1908, which, so far as material, is as follows: “That leases of restricted lands for oil, gas or other mining purposes, leases of restricted homesteads for more than one year, and leases of restricted lands for periods of more than five years, may be made, with the approval of the Secretary of the Interior, under rules and regulations provided by the Secretary of the Interior, and not otherwise.” 35 Stat. 312.

Shortly after approval by the Secretary of the Interior of the agricultural lease to Kemmerer, he took possession of the tract under the same. The 40 acres in question was then fenced, but had no buildings thereon. The east 20 acres was then broken out and under cultivation, but the west 20 acres was still in prairie grass. About June 6, 1913, the Midland Oil & Drilling Company entered upon the northwest corner of the 40 — that is, upon the land in prairie grass— took possession of about one-half acre, installed a drilling machine, and commenced to drill for oil and gas.

It is expressly stipulated that the Oil Company has used only such portion of the surface as was necessary to properly develop said land for oil and gas. This suit was brought by Kemmerer against the Oil Company in the district court of the county of Nowata to enjoin the prosecution of drilling by the Oil Company and a temporary injunction was granted in the state court. The case was then removed to the United States District-Court for the Eastern District of Oklahoma. .Several orders were there made as to the temporary injunction, which was finally dissolved, and the plaintiff appeals.

It is settled law that the right to excavate coal under the surface of land is a corporeal hereditament. Lillibridge v. Lackawanna Coal Co., 143 Pa. 293, 22 Atl. 1035, 13 L. R. A. 627, 24 Am. St. Rep. 544. It is equally well settled that in a fugitive

article like oil or gas the right to bore or mine for it is an incorporeal hereditament. Priddy v. Thompson, 123 C. C. A. 277, 204 Fed. 955. In the latter case we held an action of ejectment would not lie to recover an incorporeal hereditament, but it doeg not follow that an action of injunction will lie to prevent exploration by the owner of such incorporeal right. The petition fairly shows that the defendant had been in possession of the northwest corner of the land in question and boring for oil and gas for nearly a week when this suit was brought.

It seems to be settled that the original owner of the fee to land owns from the clouds to the center of the earth; that he can plat and subdivide the surface’ of the earth.within his own boundaries substantially according to his will and pleasure is beyond question; in other words, he can by vertical planes subdivide his property as he chooses. In like manmer he may subdivide his property by as many horizontal planes as he may see fit, either above or beneath the surface of the earth.

The writer well remembers when the owner of property adjacent to a large hotel was about to erect a building which would preclude all air and light from one side of the hotel. The city commenced condemnation proceedings to take enough of his property for alley purposes to insure light and air to the hotel.

To avoid condemnation proceedings the property owner conveyed his entire tract to the proprietor of the hotel, who conveyed back to him the lot below the second story windows and reserved the title from tire top of the first story to the sky, thus asserting at least the power to divide tire property by a horizontal plane about 20 feet above the ground. The most common illustration of the right to divide property by horizontal planes as well as by vertical planes is of course found within the earth’s crust.

It is a common thing for the owner of' a portion of the earth’s crust to convey the coal or other mineral beneath the surface, and thus the owner of the surface has parted with a stratum or strata in the 'midst of -what was once his, and continues to own from the center of the earth to the bottom of the part sold and from the top of the part sold to the clouds, while the vendee owns the

part conveyed. No case that we have found involves the right of the parties in case of a sale of a part of a stratum. Ordinarily the sale or leasing of a stratum beneath the surface by implication carries with it the right to the use of so much of the surface as may be actually necessary to mine from the stratum conveyed.. Cases directly in point with this one are very rare. In Rend v. Venture Oil Co. (C.

C.) 48 Fed. 248, a temporary injunction was sought by the owner of a coal mine to restrain the sinking of an oil and gas well through it where at the particular place where the well was being sunk the coal had been mined, except sufficient of' it to furnish the necessary support to the surface above. It seems to have been assumed in that case either that the defendant had an implied right to go through the coal mine, or at least that the owner of the coal mine must show that there would be danger of explosion or the like in the mine from escaping gas.

This last would not be true unless there was a general right to go down through the coal mine by the oil company. This case was decided in November, 1891. The next case, and one more nearly in point, is Chartiers Block Coal Co. v. Mellon, 152 Pa. 286, 25 Atl. 597, 18 L. R. A. 702, 34 Am. St. Rep. 645. That case was decided in January, 1893. The court was divided upon some questions four to three.

It was unanimously agreed, however, that where the owner of an entire tract leased or sold the coal beneath his tract, without any reservation of a right of way through the coal to explore for oil or gas or anything^ else, and when it was unlikely that either the owner of the surface or his vendee of the coal knew of the existence of oil or gas beneath the coal, and subsequently the owner of the surface leased the oil and gas privilege to a third person, who commenced to bore from the surface down through the coal in search of oil and gas, that the right of access to the oil and gas existed always, and in the absence of statute the owner of the coal could not rightfully procure a temporary injunction to restrain the oil and gas lessee from boring through the coal.

The difference between the members of the court was as to the extent of the powers of a court of equity and the necessity for legislation on the subject. On the same day, in Mansfield Coal & Coke Co. v. Mellon, 152 Pa. 286, 25 Atl. 601, the Supreme Court of Pennsylvania followed the case of Chartiers Block Coal Co. v. Mellon. In Telford et al. v. Jenning Producing Co., 121 C. C. A. 516, 203 Fed. 456, the case of Chartiers Block Coal Co. v.

Mellon, supra, is cited and quoted from at length with approval. 'While the questions here involved have not often been considered the announcement in the Chartiers Block Coal Co. Case has never been questioned, so far as we can ascertain, in the more than 22 years since its announcement.

If these cases are correct, there can be no doubt that the decision of the court below was correct, because if the grant of a right in the subsurface necessarily implies the right of access, and if the grant of the first stratum below the surface necessarily implies a right to penetrate that stratum by the grantor or his lessee in reaching a stratum below, even where such right has not been reserved, then the same right of access exists as against the owner of the surface and in favor of the owner or lessee of a stratum below, even though no such right was reserved in a lease made of the surface. II.

This point is strengthened in this case by the federal statute heretofore referred to. It is provided in

section 2 of the act of May 27, 1908 (35 Stats. 312): “That leases of restricted lands for oil, gas or other mining purposes, leases of restricted homesteads for more than one year, and leases of restricted lands for periods of more than five years, may be made, with the approval of the Secretary of the Interior.” By thus expressly authorizing, with the approval of the Secretary of the Interior, the leasing of the oil and gas right in what was formerly Indian Territory, Congress itself made a severance of the oil and gas right from the surface, and of necessity authorized access to the oil and gas, and this more than three years before the lease to the plaintiff was even executed by the Indian allottee, and more than four years before his lease was approved by the Secretary of the Interior.

III. The land taken was a part of the unbroken prairie. This was leased to plaintiff at 50 cents per acre cash and 40 cents per acre on the 1st day of January of each year thereafter for five years. The defendant took possession of one-half an acre. There is nothing to indicate this half acre was of more or less rental value than the average, pr than tire plaintiff had agreed to pay. Presumptively the one-half acre was worth 25 cents a year, or $1.25 for the entire period of the lease.

He now seeks, upon this trifling investment of 45 or perhaps 65 cents, and his promise to pay 20 cents a year for three or four more years, and his promise to pay not to exceed a total of $1.25, to obstruct the exploration of this land for oil and gas until the expiration of his lease. In the meantime it appears there were three wells'adjacent to the land, which were sucking out the oil and gas beneath this land, perhaps to the total loss of the chief value of this land to the Indian.

It is very questionable whether over so small a matter to the plaintiff the law would concern itself at all. “De minimis non curat lex.” IV. It was" said in American Grain Separator Co. v. Twin City Separator Co., 120 C. C.

A. 644, 648, 202 Fed. 202, 206, that: “The granting or dissolution of an interlocutory injunction rests in the sound judicial discretion of the court of original jurisdiction, and, where that court has not departed from the rules and principles of equity established for its guidance, its orders in this regard may not be reversed by the appellate court without clear proof that it abused its discretion. ' The question is not whether or not the appellate court would have made or would make the order.

It is to the discretion of the trial court, not to that of the appellate court, that the law has intrusted the power to grant or dissolve such an injunction, and the question here is: Does the proof clearly establish an abuse of that discretion by the court below? Fireball Gas Tank & Illuminating Co. v. Commercial Acetylene Co., 198 Fed. 650, 653 [117 C. C. A. 354]; Massie v. Buck, 128 Fed. 27, 31, 62 C. C. A. 535, 539; Love v. Atchison, T. & S. F. Ry. Co., 185 Fed. 321, 330, 107 C. C. A. 403; High on Injunctions (4th Ed.) § 1696 ; Higginson v. Chicago B. & Q. R. R. Co., 102 Fed. 197, 199, 42 C. C.

A. 254, 256; Interurban Ry. & Terminal Co. v. Westinghouse E. & Mfg. Co., 186 Fed. 166, 170, 108 C. C. A. 298, 302; Kerr v. City of New Orleans, 61 C. C. A. 450, 454, 126 Fed. 920, 924; Thompson v. Nelson, 18 C. C. A. 137, 138, 71 Fed. 339, 340; Sociètè Anonyme Du Filtre Chamberland Sys. Pasteur v. Allen, 33 C. C. A. 282, 285, 90 Fed. 815, 818; Murray v. Bender, 48 C. C. A. 555, 559, 109 Fed. 585, 589; U. S. Gramophone Co. v. Seaman, 51 C. C. A. 419, 423, 113 Fed. 745, 749.” That opinion was by Sanborn, Presiding Judge, and was again approved by him in the case of Magruder v.

Belle Fourche Valley Water Users’ Association, 133 C. C. A. 524, 219 Fed. 72. One of the rules with reference to> the granting of a temporary injunction is that the court will take into consideration the amount of damage which the plaintiff will sustain if an injunction be not granted and the amount which the defendant will sustain if it be granted.

Of course such considerations can have no weight if the rights of one of the parties are clear and indisputable, but under the facts of this case we entertain no doubt that toe District Court was well within its discretion when it dissolved the injunction in this case. It follows that for all of the reasons assigned in this opinion the action of the District Court in dissolving the injunction must be affirmed.