& MINES AND MINERALS (8 51*)-RECOVERY OF OIL LAND FROM TRESPASSERS -RECEIVERS-EXPENSE OF OPERATING WELLS.

Where oil wells, drilled by defendants as trespassers on the land of complainant, pending a suit to recover possession, were operated by a receiver, who used defendant's tools and machinery, and the oil produced was awarded to complainant, but defendants were allowed to keep the proceeds of that produced by them, less a royalty, and to remove their tools and machinery, they were entitled to fair rental for their use by the receiver, and were not chargeable with any part of his compensation for operating the wells.

[Ed. Note. For other cases, see Mines and Minerals, Dec. Dig. § 51.*]

Appeal from the Circuit Court of the United States for the Eastern District of Oklahoma.

Suit in equity by Susan Turner, by J. T. Parks, her guardian and next friend, against the Midland Oil Company, T. N. Barnsdall, and William J. Seep. Decree for complainant (167 Fed. 646), and defendants appeal. Modified and affirmed.

Edgar Smith and Eugene Mackey (Zevely, Givens & Smith and Cornelius D. Scully, on the brief), for appellants.

Kenneth S. Murchison (M. C. Reville and A. A. Davidson, on the brief), for appellee.

Before HOOK and ADAMS, Circuit Judges, and AMIDON, District Judge.

HOOK, Circuit Judge. This was a suit by Susan Turner, a minor, by her guardian, to enjoin William J. Seep, T. N. Barnsdall, and the Midland Oil Company from trespassing on her lands in Oklahoma, and for other relief. There was a decree for complainant, and defendants appealed.

The complainant, as a member of the Cherokee Nation of Indians, received an allotment from the tribal lands. Her guardian, acting under the orders of a court of probate in what was then Indian Territory, executed, upon payment of a bonus, an oil and gas lease to the Midland Oil Company. By its terms the lease was not to be effective until approved by the Secretary of the Interior and the execution by the lessee within 60 days thereafter of a bond as prescribed by the regulations of the department. There was also a provision against the assignment or transfer of the lease, or of any interest under it, without the written consent of the lessor and the Secretary of the Interior, and that such assignment or transfer should be void; also that a violation of any of the provisions of the lease, or a failure for 60 days to pay the stipulated monthly royalty, gave the lessor the right to avoid the lease and cause the same to be annulled, when all the rights of the lessee should cease without further proceedings. The lease was executed November 16, 1905. The Midland Oil Company never took possession of the premises. In December, 1905, without advising the complainant, or her guardian, and without awaiting the approval of the lease, or the giving of the prescribed bond, the defendants Seep and Barnsdall, who were strangers to the transaction so far as complainant was concerned, took possession. They at once commenced the drilling of wells, and

•For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

then the extraction of oil. The guardian first learned of this on January 7, 1907, more than a year afterwards. The lease provided for the payment monthly of a royalty of 10 per cent. of the value of the oil extracted, and under the law the payments should have been made to the Indian agent for the benefit of the complainant. Seep and Barnsdall commenced taking oil from the land in March, 1906, and at the time the suit was brought, a year later, it amounted in value to $8,134.73; but no royalty was paid or tendered until July 25, 1907. March 7, 1907, the guardian brought this suit under the authority of an order of the court of probate. Afterwards, April 29, 1907, the Midland Oil Company assigned the lease to Seep and Barnsdall, without the consent of complainant or her guardian. On June 18, 1907, the lease and assignment were approved by an Assistant Secretary of the Interior against the protest of the guardian. By the decree of the tria! court Seep and Barnsdall were given the oil extracted before suit was brought, less 10 per cent. of the value, equaling the reserved royalty, which was awarded complainant, and they were allowed to remove their tools, machinery, and structures. The receiver, who had been appointed, was directed to deliver the premises to complainant, and defendants were enjoined from interfering with her possession and enjoyment.

The assignment of the lease was contrary to the express prohibition contained in it, and was void. It conferred no rights whatever on the assignees. We assume, without further consideration, that the approval of the assignment by the Assistant Secretary of the Interior had the same effect as if done by the Secretary himself. But that does not help matters. The power of the Secretary with respect to oil and gas leases of Cherokee allottees was that of approval or disapproval. He could veto, but could not initiate or make, a lease. He might refuse to approve because of the presence of a provision, and thereby render the lease ineffective; but he could not strike out a part, and have the remainder continue in force, without the concurrence of the lessor. If a lease were made to A., with a prohibition against transfer, the Secretary could not lawfully nullify the prohibition by approving a transfer to B. The land, subject to specific restrictions imposed by Congress, belonged to the Indian, and whether a lease should be made at all, and, if so, upon what terms, rested in the first place with the guardian and the court of probate.

It is urged that a court of equity will not decree a forfeiture. This rule has substantial exceptions; but it cannot in any event apply to the assignment, for that instrument never had a valid beginning and there was nothing about it to forfeit. Seep and Barnsdall were trespassers. The inquiry, therefore, turns to the status of the lease to the Midland Oil Company. It may be admitted that a void assignment does not destroy a valid lease, but the company was made a defendant, and it is asking nothing for itself by pleading or proof. Barnsdall, who organized the company and acted for it in obtaining leases, testified, and he was not contradicted, that the lease here was taken in the name of the company by mistake; that it was intended for Seep, the witness to be also interested; that the company had no interest in it, and made the assignment because it did not wish to keep something

that did not belong to it. There is no claim that the complainant or her guardian was aware of this. So to hold the lease valid in the hands of the company would either give it something it does not ask or make a new contract for the parties, by establishing the company as a naked trustee for Seep and Barnsdall, and thereby evade the express provision against any transfer, direct or indirect, of the leasehold interest. Though the company, having executed the lease, might be held to it at complainant's option, yet, if it repudiates it as being for itself, the complainant may take it at its word and end the contract relation. The company disavows personal interest in the lease. Seep and Barnsdall cannot, against complainant's will, obtrude themselves as lessees or assignees, and complainant accepts the situation and retakes possession of her property. This was the theory of the trial court, and we think it is right.

It is urged that the terms of the lease are fair, and the complainant is not injured by the assignment. But complainant did not contract with Seep and Barnsdall, and no court has power to impose a contract on a person against his express stipulation. It is as much a natural right of a person to select those with whom he contracts as it is to determine the character of his engagement and the terms and conditions by which he will be bound. As was said in National Bank v. Hall, 101 U. S. 43, 50, 25 L. Ed. 822:

"In making a contract, parties are as important an element as the terms with reference to the subject-matter. Mutual assent as to both is alike necessary."

The hardship which it is said will follow the decree results directly from the negligence of the defendants or their careless disregard of the rights of the complainant. Little attention seems to have been. paid to a prudent and orderly procedure in such matters, or for that matter to any duties or obligations to the owner of the property.

The trial court preserved to the individual defendants their tools, machinery, etc. The receiver has used them in operating the wells, and the oil he extracted was awarded complainant. We think a fair compensation for the use of the tools, machinery, etc., should be given them; also that they should not be charged with any part of the compensation of the receiver for operating the wells, the exclusive benefit of which accrues to complainant.

The decree should be modified accordingly, and the cause is remanded to the Circuit Court for that purpose. As so modified, the decree is affirmed.

SEEP et al. v. SPADE.

(Circuit Court of Appeals, Eighth Circuit. April 11, 1910.)

No. 3,067.

Appeal from the Circuit Court of the United States for the Eastern District of Oklahoma.

Suit in equity by Robert Spade, by J. T. Parks, his guardian and next friend, against William J. Seep, T. N. Barnsdall, and the Midland Oil Company. Decree for complainant, and defendants appeal. Modified and affirmed.

Edgar Smith and Eugene Mackey (Zevely, Givens & Smith and Cornelius D. Scully, on the brief), for appellants.

Kenneth S. Murchison (M. & Reville and A. A. Davidson, on the brief), for appellee.

Before HOOK and ADAMS, Circuit Judges, and AMIDON, District Judge.

HOOK, Circuit Judge. The essential facts in this case are like those in Midland Oil Company et al. v. Susan Turner (just decided) 179 Fed. 74, and there is a stipulation that this case shall abide the result of the other.

It is therefore remanded to the Circuit Court for a like modification of the decree, and, as so modified, the decree is affirmed.

BUSH v. PIONEER MINING CO. et al.

(Circuit Court of Appeals, Ninth Circuit. May 2, 1910.)

No. 1,755.

1. EJECTMENT (§ 84*)-PLEADING AND EVIDENCE EVIDENCE ADMISSIBLE UNDER PLEADINGS.

In ejectment, the plaintiff must recover, if at all, on his title as it existed at the time of the commencement of the action, and evidence of any after-acquired title is inadmissible, unless the foundation therefor has been laid by a supplemental complaint, under the authority of a statute which permits the filing thereof in actions at law.

[Ed. Note. For other cases, see Ejectment, Cent. Dig. § 231; Dec. Dig. § 84.*]

2. PLEADING (§ 274*)—Supplemental ComPLAINT-NATURE AND REQUISITES. The rule of practice under statutes allowing the filing of supplemental complaints in actions at law is similar to that of the chancery courts in reference to supplemental bills, and the supplemental complaint differs from an amended complaint in that it does not take the place of the original pleading, but stands with it, and adds to it some fact which has occurred since the beginning of the action, which fact must be set forth therein.

[Ed. Note. For other cases, see Pleading, Cent. Dig. § 832; Dec. Dig. § 274.*]

3. EJECTMENT (§§ 76, 84*)—PLEADING (§ 428*)—SUPPLEMENTAL COMPLAINTSUFFICIENCY-EVIDENCE

An amended complaint in ejectment, filed by leave of court, which merely alleged a cause of action, as did the original complaint, and which did not allege any fact occurring after the filing of the original complaint, cannot be construed as a supplemental complaint, under Carter's Code Civ. Proc. Alaska, § 98, which permits the filing of a supplemental complaint "alleging facts material to the case occurring after the former complaint," and does not warrant a recovery by plaintiff on a title acquired after the commencement of the action, which was not pleaded therein; nor does the defendant waive the right to object to the introduction of evidence of such title by failing to demur to the amended complaint.

[Ed. Note. For other cases, see Ejectment, Cent. Dig. §§ 212, 231; Dec. Dig. §§ 76, 84;* Pleading, Cent. Dig. §§ 1433-1436; Dec. Dig. § 428.*] 4. PLEADING (§ 274*)-"SUPPLEMENTAL COMPLAINT."

A "supplemental complaint" is one which assumes that the original complaint is to stand, and must consist of facts which had arisen since For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

the filing of the original complaint, and must relate to matters which had occurred subsequent to the commencement of the action..

[Ed. Note. For other cases, see Pleading, Cent. Dig. 832; Dec. Dig. § 274.*

For other definitions, see Words and Phrases, vol. 8, p. 6799.]

In Error to the District Court of the United States for the Second Division of the District of Alaska.

Action by William H. Bush against the Pioneer Mining Company, the Nome Exploration Company, the Bear Mining & Trading Company, O. W. Carlson, R. D. Adams, and A. N. Ashley. Judgment for defendants, and plaintiff brings error. Affirmed.

On September 26, 1906, the plaintiff in error filed a complaint in ejectment against the defendants in error to recover the possession of an undivided onefourth interest in a mining claim. In the complaint it was alleged that the plaintiff therein owned and was entitled to the possession of an undivided onefourth interest in the Daisy or Big Clid claim, since 1905, through mesne conveyances from F. F. Bowers, who, the complaint alleged, located the claim on August 1, 1900, and thereafter, on January 12, 1901, filed an amended location thereof. In August, 1907, the plaintiff moved the court for leave to file an amended complaint, and based the motion "on records and files in the aboveentitled action, and facts occurring subsequent to the filing of the original complaint," but without specifying what were the records and files or facts relied upon. On August 14, 1907, the amended pleading was filed, and it was designated an "amended complaint." It did not, as did the original complaint, set forth the deraignment of the plaintiff's claim of title, but described the mining claim by metes and bounds, and alleged title in the plaintiff of an undivided one-fourth interest therein, and his right to the immediate possestion thereof "under and by virtue of valid and subsisting locations made by his predecessors in interest, under the mineral land laws of the United States, on and subsequent to August 1, 1900, who thereafter conveyed to said plaintiff by certain mesne conveyances an undivided one-fourth interest of, in, and to said premises." The defendants moved to make this complaint more definite as to the specific acts of location under which the plaintiff claimed, but the motion was overruled. The defendants answered the amended complaint, setting up claim of title under locations prior in date to the Bowers location, and the cause went to trial before a jury. On the trial the plaintiff introduced his evidence of the location made by Bowers on August 1, 1900, and of the amended location of January 12, 1901. He also sought to recover on a title derived through one Alexander, who claimed to have located the land on January 1, 1901. The deposition of Alexander, containing the evidence of his location, was introduced; but it was struck out when it was shown that the deed from Alexander to the plaintiff was not made until July 19, 1907, long after the commencement of the action. The jury returned a verdict for the defendants in error.

Albert H. Elliot, Hobbes & Bell, Geo. D. Cochran and John J. Reagan, for plaintiff in error.

Ira D. Orton, Campbell, Metson, Drew, Oatman & Mackenzie and E. H. Ryan, for defendant in error Pioneer Mining Co.

Ira D. Orton, A. J. Daly, Albert Fink, Campbell, Metson, Drew, Oatman & Mackenzie, and E. H. Ryan, for defendant in error Nome Exploration Co.

Joseph Hutchinson, for defendants in error Bear Mining & Trading Company, Carlson, Adams, and Ashley.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes