Petition for Writ of Certiorari — Miles v. Tomlinson

Supreme Court brief1963

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spreme Court US,

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REPRO COURT, U, ge] JUL

Supreme Court of the Yuited fies

_Octoper TERM, A.D. 1962

nae No. < : 3 ae

STEWART OIL COMPANY, a Corporation; MICHIGAN OIL

19 1963

COMPANY, a Corporation; STEWART PRODUCERS, INC.,

’ @ Corporation; KENNETH PATTERSON; G. F. STEWART;

W. ROLLAND STEWART; sens J. TIERNAN and MOR-

_ RIS YARBROVE,

Plaintigs-A ppellees,

VS.

SOHIO PETROLEUM COMPANY,

Defendant and Counter Claimant,:

VS.

WALTER E. KLINE; STELLA P. KLINE;-R. E. HAYES:

W. T. FREDERKING and A. P. WAGEMANN,

Counter Defendants-Appellants.

\ .

and

CARL E. MOSES; DAVID RB. STEWART and DONK BROS.

“COAL & COKE COMPANY,

Petition For Writ Of Certiorari To The United States

. Court Of Appeals For The Seventh Circuit

WILLIS P. RYAN”

“HARLAN HELLER,

RYAN AND HELLER,

1702 Broadway,

Mattoon, Illinois,

: L. C. COMBE,

311 W. Main Street,

_ Greenville, Ilinois,.

a Attorneys for Counter Defendants Edward W.

* "Kline and Ruth Lyoch, Administrators of

pa 3 ‘the Estate of Walter E. Kline, deceased;

: "R. E Hayes; W.. T. Frederking and A: P.

Wagemann.

Midwest Law Printing Co. 326 N. Michigan Ave., Chicago

Telephone: \Finane ial 6-3988 —

c ‘ounter DeFe ndants- Appellees —

> e

pee 2 e

; INDEX

PAGE

_ Opinions Below 7 oe. , “ o.

Jurisdiction, eae ieee Re Stan yer tate saa EE

P= Questions Presented ©0070. ee :

. Constitutional Provisions. and Statufes Involved , }

Statement of the Case 0.0... een re aA kel 4

Reasons for Granting the Writ 0.0... fet ET ,

The Trial Court did not have jurisdiction of the parties

and subject matter for three reasons:

. A. There was not the required diversity of citizen-

“shi pm Ngo Meg See hee Ole ae ~<A er ae Oa

_ B. The suit is spécifically aad hecossarity-an-at-

MR ETRE: mpt O ) adjudic: ate the title'to real estate outside the,

- jurisdiction of the Triai Court... a He Sear 16

C. The deposit with the Court by the interpleader

does not place jurisdiction in the Court where it would.

‘otherwise lack Jurisdiction. ‘Jurisdiction determines

deposit. Deposit: does not determine jurisdiction ...... 3

; ee ee ee ee aan

~——~“Phe decisions on “on the merits by the District Court and

the Court of Appeals were contrary to all of the evidence

and the law of [lhnois and the weight of authority general-

‘Jy. Those decisjons, appellants. beliey e, make a travesty of

justice ina court of equity Ries hbanaladiocs oe cooeehnccaes Ree 24

III cet ear cces ie coe eae Pact aah - 34.

‘Oo

(. ppe ndix :

Appendix ‘* ‘BY —Opinion of the

{

ag . £

—Opinion of the United States ~Distriet’

Court for a Baste rn Distriet of Tlinois’ on ) jurisdic.

: tion herp tea a Mites AE ae

United States ~ District

A ‘ourt. for the Eastern: District-of lines on the me rits . - Sa

ove

Appendix “¢

ale pinion’ of the

Uv nited States Court of

Appeals tor the Seventlr Cirenit ................:......,-.. 21a

Appe ndix “D'-—Judgiment or decree of the United States

"Court of Appeals for the Seventh Circuit aie, qe 5 |

Appendix. “R_Cdaxti¢utional Provisions and Statutes Gant

Involved | SAN A

Be CrraTions

| Cases: .

Bear v. Millikin Trust-€o. (1929), 386 "TIL 366, 381,

KE 3 .............. ao oe

Bevans v. Murray aoe 51 Th. “603, MG NE.

Pe oe eos 4,22

Blackhurst y. James < (192). . 304 Tl: BSAC 503. . BP

‘Bundt v. Tag: (1953), 3872 Pa. O85, 94 A. 2d 724... 29

Casey v. Adams. (1880) 102 TS, 66s. ae 16

Chicago, ee & Franklin Coal. Co, *. Minier f

(1942), 127 F. 2d 1006, 1009 2.0... aalted 30

i naolidesed “Ciieeains Inc. v. Marti (1941),

F. Supp. 560 jel SiLaranscieiieaaniapamtes ae

Darst v. _— (L937), 307 Th. 119,10 NE. 2d 659,

ae Miehiex: (1918), 285, I, 513, 52287121 ~:

N.E. 165 LVM COS OL SO * 30

- j

———

‘il

Dill v. Widmas (1953), 415 Il. a N.E. -2d..

765, 769. 2... ae 2 inayat ae

Dunham v. Kirkpatrick (1R82); Ww Pa. 36, ry Am.

Rep. HOG 2.2.1... LNT eee

Grubh +. — Utilities Com. of Ohio (19: 0). Pel |

U.S. 470, 50:8. Ct. 374, THe Lokd. 972 08 6,

“Guth v. Texas Co. (1946). 166 F. 2d 6S 3... 1

Hawi. Haughn (1921). 296 HL 305, 308, 1290

ye Memrtieunert enn ee

Haynes v. Felder (19974. 234 F OD oie Oe

Hickok ve Gil Oi Corp. (1959), 265 F. ant 08 2: AF

‘Indianapolis v., Chase National Bank (1941), 314 US.

630-68, 86-1. Ed. 47, 62.8. Ct 1h 002. TL 12. 13, 14.

Jivide nV. Now Pittsburg Oil Co: (1933). 45 Ohio.

Aew. 20, 107 NE. 198 oo .. ae

Ander \ v.. LaSalle County Coal, Co. 93 10 me

126, 18RD NES S87 Os : 38 20, 30, %

Magnolia Petrobeum Co. v. West ena v4 ML YA16:

BONE. 2d 24, Doo. Z. “28 529

mo fall vi _ Midleton. (1922), an I. goss. 1 136°

ae A ie; a ; Tee Ai

“Miller v. “is nae 2 IM 2 a eAr ‘ K

— 759, T60.. 761, DS ’ 5 ee Ds

Monon Coal Co. v, 2a 194), Ji N. K. 2d 42, 3

. N.E. 2d 598 ee ee AN tes bi: Js

Mutat Ljte Ins. Co. v: Lott ho ). 275 F. 368. <a

Nance v. Donk noe y Hl. 2a 399, 151 NL. 2d

pte Po orn “28,41

Parker v. enue ist), 14 CS. SI. 12 4

| Bs cople v -Flahe ys (1947). S06 TIL 304, rk vb 2d. |

SMES means cae side ce cae Santas ee

People’s Bank v.-¢ Calhoun ISSO). Wwe ¥. s. 2G. 26

oe oe peence ne ayo es

. Bie

- ie any : P ry

Po lomane > Milling & om Co. ¥, Baltimore '& Ohio Rt. Re

er (1914), 217 IA. 665 WRAY Ae Seal eoceas 1s

_ Preston v. South Pe Tn. om ‘oe (191 rb. 258 Pa. 201.

6 A. M6 : ishtpeaner ee

Primos (C hemical Co. A:, ” Palion Stee Corp. s(1918), .

24 Be 454 a

a eee a

Rhomberg v. Texas Co. (1942). 978 He 430) 40 NE.

ne A rk, ek Fe oe cts 28, 29

Robertson v. Sease (1878), $7 U.S. 46, 2401. Ed.

; Lge a Ee aera Us A allaoe ime o eek. : i)

Robinson v. Seatex Oi 1 Co. (1944). 5 avr in Sapp. SSL 16

Silver v. Bush (106), 213 Pa: 95, 62 A: 832 .2...... 28

Smith, v. Grubb putihe 402 INO 451, SN. Boe 2d

[i ee co a ee

eonn sites ae \. Curtiss (1806), 5 Cranch Mi: 2 I.

, Sis and Wyoming Valley RR, and Coal Co.’

Bk atejutord (ISTE). 11 Wall 172,20 1. Pal. We. 11

Tear Te Ae be pea AVOST 5, 377 er gaa 36. NE.

i ne ok a

Troinies v. Sunshine Mining ro, “9: 0), US U. S. 66,

Ou Ct. 2, OF Bd Se

Tyler v. Stanolind Cirand (ime Co. (F935). 77 B2a

28, Dy

io «scene co droee Fe wocedacam escoesess

Webber oo Case & Weta Co. v. Waugh (10505,

42 F.2d oly * rs ie tod ares > iG.

‘ ustitution :,

Constitution of the United States. Article TIL See

ee "10, 14, 28a

Reconstruction Finance Corp. v. Maley (1942), 129 .

Sree aecteneenke 16

a e ©

| Statutes! -° .. Pert

United States Code | Annotated, Title 28, Neetions

21382, 1535, 1359, 1392, 1659 2020/0... 11, 12. 20, 28a,

Illinois Revised Statutes, Chapter 110, Section 7.

Fee OTE eS eihien dt Uae Sr phe nde iP ed Saison ee a

. . 2 ae | ‘

Miscellaneous: : : oe

Chatee, The Federal Interpleader Act of 1936, 4i)

Yale LJ. B04, 39)

‘Federal Jurisdiction a Pivcedure, eres Gi.° Fins *

(1960), Ch..11, pp. 6, 13. ......... Vem

- Hardin, Transfer of Gites gad Hovis ‘interest,

Grant or Reservation’ of Coal and Other Mineral»

(1959), No. 2.U. of UL, Law Forum.907, 518,

Hermann, Reformation ‘and Reset Ission (1960); No. 12.

oT... ae Pe 8 soe.

S Maelo Bee TE oe ae

: - Wass. - a Be

- an 2 -

nf 3

Gj -

¥ .

24a -

BOs

He:

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“ae

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° ‘i ®

ie a THE. :

| Supreme Court of the united States -

- Ooroprn Term, A. 1D. 1962- ee

STEWART OIL COMPANY, a- Corporation; ‘MICHIGAN’ OIL |

COMPANY, a Corporation; STEWART PRODUCERS, INC,

& Corporation; KENNETH PATTERSON; G. F. STEWART | :

- W. ROLLAND STEWART; FRANK J. TIERNAN and —

‘RIS YARBROVE,

Plaintiff se Appellees,

| e } i Vs.

SOHIO PETROLEUM COMPANY, : ;

. , ‘De té nedant and Gi enite r Clammaut,

“VS. c-

WALTER E. KLINE: STELLA P. KLINE; R.E HAYES.

OW. T. FREDERKING and A. P. es. -°

( ‘counter Deti ndaut ay pel a nt a

-. and a

: CARL E. MOSES: DAVID R. seewant and pot’ anos. |

_ COAL & COKE COMPANY, |. cae ee St

De Counts r AD te ndants-A pyr i

Petition For Writ Of Certiorari To The United States :

Court Of. —_— For The Seventh Circuit

Petitioners. Medword AW, Kime and Rute Lypel. fe nist

rors of the Ie state of Walter Ez Kling, deceased : I . Haves:

T. Frederking ee A. PP. Wagemann, ra. ae owt of

he issued-to review 2 jude rent of the 'nited. Stat

Court «ef Anpeals for the Sevonth Circuit, entered on Mr) io,

:- TMb..,

Y /

a é “ ery

‘ %

24 of

° on

. >

% re -

ee oe .

es oy :

ee ee

> “2 ia OPINIONS BELOW. : ~ X

~ —_—

s 1 jos Bes :

e .-

“ hye Pistrick ‘ourt: wrote y menrorandaAy oninion or a mo-

. ; - Ri abaanc Re ee : are 3 (oa

. ten to dismiss. Mt ix attached lrereto as “pendix A” infra ‘

?: . 4 Pe . g - it . ° . : «a

oobrand js reported imedso BF. Sepp. 76. ” : ‘

The Distriet Conrt’s opinion qn the merits ts attach al hereto

as Appendiy “B™ infra p. Saland is reported in 202 F Supp.

a S20 5 ’ Py Feet! ¢ . 4 ’

*s : ar : —- — : } j

‘Toe onntion oat the Conrt of Anbents is atta shed hereto as

Nnpendix “Cr, infra. Phy. : oa

~ : |

Ve 4 uyderinent oe Aeeree.of the Court of Ament ix tached

ehepetos Appendix "infra p. Jen. t.

JURISDICTION. rep

‘ a 6 a ~

The decree or judgmentod the Court of “Apipeals..was en

tered April 15, 1963 (Appendix “1% intra p. Yha.) The jur;

“sdiction of this Court 4 pnvoked under 28 US.CLA. See, 1204

Ty amd Rute US. See. ACk? of thd Supréng poe

> 2

QUESTIONS PRESENTED.

be Died the tagal court have mrsdiction ef the parties and

subject matter fi accordance with the Constitution of the .

% ° , : 3 sa

United States and the statutes of the United States and the | |

State of Jilmors. as const ined bs the courts?

2° Were’the lower courts in error in holdrt that ou and

cas Were conveyed by the 1907 “Warranty Deed to Coal and X

“Minine Richte?" Was thet error in view of (Lpcall of the

> A “ : =

ee, fm, 2 ®

i wording in the conveyance, 2B rie “fntertmeation of, the

words “at coal depth’ by” typeyriter, ins the printed “forin,

(3) all of the evidence, and (4) the uncontroverted ev idence

oral and doeumentars, that the parties did not. interid me

oie words “other tnineral’ pt the form to, inelude oil and

gas, nér any surtace riehits. nor any rights whatever below

coal dey thi of T2 tr ost) fivt helow the surface, but only. coal

‘and other <li minerals necessarily mined with coal at such

coul depth access being gained under “rround from other lands ?

: 3. [isthe alternative, were the tower eourts in error in not

\peforming that *W: ar bant Deed to-Coal and Minin Risht-"

tor clearly show that interitivn and Jimitation.’

° 4.) Shall the cor murt ad Ljuddicate ' phe 1 remagate title as between

the divergent groups of lain Units satis Rocide which of the

is entitle af The ae

two Opposing 4 sides <= af th: CONE

cumulated atid future proceeds Tr: Amy io Drecovered ant oh:

» reeovered from the land.

. > » *

___. CONSTITUTIONAL PROVISIONS AND

eri _ STATUTES INVOLVED. -

: <7 Appendix *E”

herein oe

? . Ae . . ‘ s + ; ‘ é ,

‘Constitution of the United States, Art. TET) See, 2.0 28a -

28 USA. Sey! bi . e eae : Dea

98 USCA. She, 1335 , rt. ects ee 9

228 USGA. See, 1359 oo. el!

28 USCA. S Ee LOE SOS ae Padre: Ua

28 USCA, See. 1655... faa ie hk lata

Illinois Revised lie Ch.110, a peer nconce-- OPN

” oN

Pal

: &

a} =e . Z ath

STATEMENT OF CASE.

—+ 2 «.

x r

Plaintiffs, citizens of ‘the State of Michigan, filed suit

against Sohio Petroieam Company, an Ohio Corporation au-

thorized to do business’ in theeState of Hlinois. The suit was

. filed in the Distriet Caurt of the United States for the Eastern

District of Tlinois. The suit demanded proceeds. from the

sale of oi] produced frone lands in Bond: C ounty, [inois.

Sohio Petroieum Company filed an answer to the complaint

sand a counterelann of mter-pleader. The counterelaim was

later amended, and the oil company admitted the purchase ot

the oil from the premises and stated that.adverse claims had

heen filed to the proceeds, and stated that im order to determine

the rights to the proceeds it would be necessary to add addition.

“al parties. The amended countegelann asked that Sohio not be

compelled to become involved he dispute: and that cortain

parties be added to the suit, and that the Court determine the

parties entitled to’ the money Withheld by Sohie and alse’

money that would be ace umulated j in the future’ by eason of the

purchase “of oil from said property.

The parties added were Donk B ros, Coal and Coke Companys,

an Illinois Corporation, ( ‘arl FB. Moses and: David R. Stewart.

citizens of Illinois, and these parties were referred to iméthe

trial court and briets as Donk, et al.; Walter FE. Kline, Stella

P. Kline, R.E. Haves, W.T. Frederking and A. P. Wagemann,

all citizens of [inois, referred to in the trial court and in

the briefs as Kline, et ai. In addition. John J. Steiner and

“Josephine M. Steiner, citizens of Hlinois, were made parties,

bat did not appear and were defaulted.

The dispute between plaintiffs and Donk Bros. et al.

aligned on one side, and Kline; et al., aligned on the other

side, arose out of a deed to said premises.

aan ae

The original defendant, Sohioe Petroleum Company, was dis-

charged pursuant to‘an interloeutory deerse,

Plaintiffs produced oil from the Southeast Quarter of the

“Southeast Quarter of Seetion 29, Township 6 North, Range 4

West of the Third Principal Meridian, Bond County, Ilimois,

pursuant to an ail and segs lease dated October 21, 1959, from.

Donk Bros.” Coal and Coke Companys tesser, te Carl . Mases

and David R. Stewart. lessees, and assigned to plaintiffs, sub-

ject. only, to overriding reyalty interests, ageregating a

3 /D2nds of F/Sths of the of and eas so produced and marketed,

reserved unto the lessees. ° 7 - ’

Donk Bros. Coal and Coke Company acquired its ownership

Inthe premises by quitlaim conveyance frome Thesdore Ras

sieur, agent and attorney for Donk Bros. who had been vested

with title by the Warranty Deed te Coal and Mining Rights

dated September 21, 1907, from Saimiel J. Brown Cunmarrieds

as Grantor. to Theodere Rassieur, as Grantees, conveving :

~ + all coal.and other mineral under the surface ‘of said

land” together with the riteit do mine and remove said coal

and other mineral and the right to conduct mining operd-.

tions under, the surface of said tract of land therefor, ane!

the right to use call rooms, entries and mining wavs ft

coal depth). ander. the surface of said tracts of land, as

and for mining: ways to and from beds of coal. or other

mineral in other lands.” (The words “at coal depth” are

interlined by typewriter in the origina? imstrument.)

a . os ‘ ® re ae ‘

Walter Ie. Kline, Stella P. Kline and Ro i. Halves and their

oH and gas lessees, WoT) Frederking and A. P. Wagenaeti.

.tlaim ownership of the oil and gas-from said) premises. im

eluding the funds placed on. deposit by Solio. bs mest ¢on

vevances from one Albert T. Brown, being the Grantee of ®

Warranty Deed from the same Samuel J. Brown, as Grantor,

dated, also. op September 21, 1907, covering the forts acre

_ corrected by reformation. *

tract, with other lands, but specifically providing: “ (coal, ete.

underlying said premises reserved, same having been hereto-

fore sold)”

: q z : :

The pleadings filed by Walter KE. Kline, Stella P. iKXline,

: . 7 aN ae -f 7, .

R. ke. Hayes, WT. Frederking and A. 2. Wagemann, referred |

to as Kline, et al. alleged that the oil and gas rights were not

conveyed by. the above described “coal and other mineral deed”

“from Samuel J. Brown to Jheodore Rassieur, but were con-

veved by the-deed from Samuel J. Brown to Albert cf. Brown,

and claimed, (a) That the “coal and other mineral deed” ¢on-

veved-no oil and gas ax amatter of law, and (b) That if the

legal effect of the deed is otherwise: then the ,ine ‘lusion of oil

und gas ix the resulf “of either the mutual mistake of the

crantoty grantee and erantee's attorney who ‘prepared the

deed, or the mistike of grantor or the fraud of the grantee

and or his successors” and, therefore, should be accordingly

The plaintiffs confended, (a) The “coal and other mineral

deed” from Samuel J. Brown, to Theodore Rassieur did in-

clude-and convey the oil and gas as‘a matter of law; and

ih) The alleged co aft deed reformation (=o as to exclude

the oil and gas) is not available as against the intervening

rights of third pi ine ‘hiding the saath te

Carl K. Moses and Davia RoStewart contended, (a) The

“coal and other mineral deed" "yeom Samuel J. Brown to

Theodore Rassieur did include and convey the oil and gas as a

ratter of law; and.-(b) That the said deed is not in any eve nt

subject to the alleged right o! reformation as to then.

The position of Donk Brosg ¢ ‘oat and Coke Company was

idéntical with that of the plaintiffs, except that they are not

third parties insofar as the question of reformation is ¢on-

cerned, and they contended that the facts did not warrant the

reformation 6f the deed as requested,

fee as arnt

- The contentions of the’ plaintiffs, citizens of Michigan, and

_ the counterdefendants, Carl E. Moses, David R. Stewart and

Donk Bros. Coal ané Coke Company, citizens of Illinois, were ,

identical, except that Donk Bros. Coal and Coke Company

could not claim to be innocent third parties. On the other side

were Walter FE. Kline, Stella P. Kline, Re Ik. Haves, W. T.

Frederking and A. P: Wagemann, all citizens of Tllinois.

In order to judge the case, the trial eourt had to determine

title to the property in Bond County, Hlinois. Bond County,

Illinois, is not within the territorial. lnnits of the United

. States District Court for the Eastern District of Hlinois, but-

is in the territagial limits of the United States District Court

for the Southern District of Mlinois, | a

In the trial want: W alter KE. Kline, Stella P. Kline. RoE.

Hayes, W. T. Frederking and A. Pj Wagemann contended

that the court did not have jurisdiction for the reason that’

the court could not adjudicate’ title to real estate outside the

territorial limits ‘of the court, and for the further reason

that the alignment of the parties deronstr: ated a dispte be.

tween citizens-of Michigan and Tllinois on one side and citizens. ,

— — _———---- nea ae

ofAllinors en the othe r side. . ‘ .

The trial was held March ist, 22nd and 2: 3rd, 1960), and the

plaintiffs and. the counterde fendants Moses and Stewart, and

counterdefendant Donk Bros. Coal- and Coke Company. pro.

ceeded on the theory that the warranty deed to coal “and mining

rights conveyed oih and gas as a matter of Jaw and was not

subject. to construction or reformation.” They ‘rested their

cases_after introducing in evidence varions exhibits including

deeds, oi] and gas leases and assigninents thereof,

Walter FE. Kline, Stella P. Kline, R. FE. Hayes, W. T. Fred-

erking and A. Pp. Wagemann offered a number of Witeeaiies ‘and

exhibits designed to show the circumstances surrounding the

transaction and the intention of the parties. a

_°

The trial. court held that the United States District Court

for the’ Eastern District of Illinois had jurisdiction to adjudi-

cate the property. rights: to land lying outside of the district,

and that the action in question wasein personam and therefore

transitory. The trial court further held, with reference to the °

merits, that the established: law of Illinois was that “eoal and:

other mineral” does convey oil and gas as a-iatter of law.

The deed in question. was dated September 21st, 1907.

‘The United States Court of Appeals for the Seventh Cir-

cuit affirmed the trial court.

A more detailed statem nt of he’ ate appears int the Kline,

et al. Court of Appeals appendix and briefs filed with the ree-

ord in the Supreme Court.

REASONS FOR GRANTING THE WRIT.

THE TRIAL COURT DID NOT HAVE JURISDICTION OF

THE PARTIES AND SUBJECT MATTER FOR THREE REA-

SONS. A. THERE WAS.NOT THE REQUIRED DIVERSITY

OF CITIZENSHIP. B. THE SUIT IS SPECIFICALLY AND

NECESSARILY AN ATTEMPT TO ADJUDICATE THE-TITLE

TO REAL ESTATE OUTSIDE THE JURISDICTION OF — :

TRIAL COURT. C. THE DEPOSIT WITH THE COURT

THE INTERPLEADER DOES NOT PLACE JURISDICTI

IN. THE ‘COURT, WHERE IT WOULD OTHERWISE LACK

JURISDICTION. JURISDICTION DETERMINES DEPOSIT,

DEPOSIT DOES NOT DETERMINE JURISDICTION of

. miter Asi ates courts jiave me quar iacdietion except Hie! wh

is conferred upon them by the constitution andy Iws of the

United St: The presumption persists the: pie shi mit the ense

‘that ‘the vourt is’ “without: jurisdiction unless the contrary

affirmatively appears. The jurisdietion’ must arse trom the

law-and not merely by consent of thecpartios. People’s Bank \

CMronig V801, W2 US, O50, 28. Fd. Ws Roberton

Sead (IRIS$. 97. US 646,24 L. EAGT: Panter Onite

( Is), M4! SSIS |

A. THERE WAS NOT THE REQUIRED DIVERSITY OF

CITIZENSHIP. oP oe

There are only two sides to the controversy, On one side are

chika who chiim through the: coal company grantee ofa Wat

cranty Deed to Coal and Mining Rights” “froin a WOR fare

owner. On the other side are those whe claim through an oil

and cas dease froma 1956 owner of the receammeder an the

land. There ix no dispute among those on each side of the cone

“troversy, regardless of how they are designated in the plead

Satins

as ~~

zl * fe . 5) °

ings, They worked together throughout the acquiring of the ine...

terests lin the property, the ple: udings, the trial and the ip-

weal, . Fs . ' “ ?

Griceally a part wale of” the closely related parties on the,

coal company side of the’controversy, and who were Michigan’

~ citizens, sued in-the Eastern District of Mlinois the oil company

of Ohio which had. purthased oil from the premises, They al-

loved the Sond County land: (in the Souithe m Dietriet of Tli-

° *

hols).

“The oil company examined the title. It discovered the omitted

_parties’and the disputed title to the real estatg, The oil com

pany filed an intGrpleader alleging ‘the émitted Parties and the

“title dispute, and deposited the proceeds up to.a certain. date

with the court. iT allezed the condition of the title, the fact.

that the kind was in Bond County in the ‘Southern District

of TH Riots, the names and eitizenship of the claimants from Th-

nois and from Michigan on the coal: company side’ of the

- controversy, and the names and citizenship of the claimants

trom: Llinet< on the other side of the controversy. It requested

the court to adjudicate the tithe to the real estate, and alleged

that at had no daterest in the CONTFOVErSY, and asked to be dis-

tuissed With its costs and attorney fue, Doe trial court accord

gly dismissed the interpleading oil. COUNPRUY: Srom- the cast

and, allowed Its costs and attorney fee. +

e -

This ‘suit is not*within the jurisdiction: of the Court fortthe

reason that it sleies not involve a controversy between citizens

of different. states as prov ided by the Constitution of the

United States, Art. IW. 62. and the judicial construction of *

that section. ;

Furthermore, it is not within the jurisdiction ‘of the Court‘

for the reason that it does not involve “two or more adverse

claimants of diverse ¢ vitizenship 3 as defined by Section 1332" of

: Wee | tae

the Judicwrye oAet. Tgle 28 US.CLS.. par. 1355, referring to

. par. 1332, “-— Eee

Prior to the complete revision of the Judieiary Act in 1948,

there were differing opinions regarding complete diversity and —

the relevance of the citizenship of the interple auder, Soi

based this definition of diverse citizens hipseon the Judiciary

Act and others on the Int ypleader Act. By the revision beth

were brought together, Now there must be “diverse citizg nship

ts defined by section I. = = A of the Jugliciary Net. My

Harty G. Fins, in his recent dition of Peder ‘at Jurisdiction

and Procedure, published in 1960, disens-es this point. Chap

ter Lion page 6 ts entitled Jurisdiction in Civil Cases. On thie

_ Sane page under tlie subhead A., Diversity ef Citizenship, ap-

pears the following: > . ‘

“(1) ‘ Complete diversity is required. Therefore, when

there are two or more plaintiffs of defendants, all of the

parties on one side of the litigation must be citizens of a

state different from any of the parties on the other side.

* ** If A, a citizen of Illinois, and B, a citizen of Ohio,

- sue C, a citizen of New York, D, a citizen of California,

and E, a citizen of Illinois, diversity is destroyed because |

there are Illinois citizens on. both sides of the litigation.

_ (2) * * * The intervention or subséquent joinder of

one who is an indispensable party ousts the jurisdiction

of , the court if diversity of citizenship is thereby de-

stroved.’

Straubridge v. C urtiss (1806), 3 Cranch 267, 2:L. Ed.

435; Susquehanna. and Wuoming. Valley Railroad and

Coal Company x. Blatchford (1871), 11 Wall 172, 20 L.

Ed. 179; Indianapolis v. Chase National Bank (1941), °

314 U.S. 63, 86 L. Ed. 47, 62 S. Ct. 15.

In the same chapter on page 13, Mr. Fins sti ites as follows :

“The court will scrutinize the case to determine whether

there really is diversity of citizenship, and in order to do

so will = > position in which the plaintiff has

—l-—

. placed the parties. And if it determines that a party who

. should have been a plaintiff was placed as a defendant,

or yite page court will realign the parties, and if

after such realignment there is no diversity of citizenship

> the cause will be dismissed for want of jurisdietion. Thi#

; be known as the doctrine of realignment. ( Citing [ndianap-

par > v. Chase National Bank (1941), 314 TS. 63, 86 L. Ed.

, 62 8. Ct. 15).” ee

The Judiciary Act now has codified a number of these

{ points; 28 USCA, paragraph 1359, provides:

“A District Court shall not have jurisdiction of a civil

action in which any party, by assignment or otherwise,

has been improperly or collusively made or joined ‘to in-

voke thé jurisdiction of such court.”

The Judiciary Act, Title 28, USCA, Paragraph 1335, pro-

¥ ide s as follows: ‘ <

“Paragraph, 1335(a) The district courts shall have

original jurisdiction of any civil action of-interpleader or —

in the nature of interpleader filed by any person, firm or

corporation * * * having in his or its custody or posses-

sion money or property of the value of $500:00 or more

* * * if (1) Two or more -adverse claimants, of diverse

citizenship as defined by section 1332 of this title * * *

are -clainiing or may claim to be entitled to such money

** *; and if (2) the plaintiff has deposited such money or

property * * * into the ‘registry . of the court iii

It will thus be seen that the claimants must be of diverse

citizenship, and that the citizenship of the interpleader i is im-

material to jurisdiction, .

Such realigninent beveiia that parties from Illinois are on

both sides of the gontroversy.s When that is true, this Court

‘has no jurisdiction, All of the ¢laimanfs on one side of

the controversy mast “be diverse from all claimants on

the.other side of the controversy. The Michigan, and IIlinois

claimant= on the coai egmpany side of the controversy, in the.

aay

words of Justice Frankfurter, “fre -colloiuially. speaking,

pagtners in litigation.” IndianapolX \; Chase ——

(1941), $14 US. 63, 86 I Ed. 47, 62S. Ct. 15. There being

‘Hlineis citizens on hoth sides of the sdiaplen rsv, jurisdiction

is defeated. The interpleader is not a “claimant” in any. sense

of the word, and has no interest, other, than as stakeholder, in

the controversy. ° | - |

The Court of Ane als, in order to sustain jurisdiction, be-

lieves “that Sohio’s interest was more than that ef a mere

“stakeholder.” This is in spite of the Donk, et al. insistence on”

‘page 33 of their brief tfiat Sehio was “but a stake holder.” The

Court of Appeals recites a number of reasons for that he-

lief. All are compon to interpleading stakeholders, viz. “pro-

tection-etrem multiple ‘suits.” “potential. ability as at stort

feasor,” and “validjty of its purchase agreements with aye of

rg at

‘the group of adverse claimants, es

The ( Court then states, “Necessarily, it was igter er vitally

in the identity of future recipients of royalties: and in the.

ownership of the oil, This ater: st of Sohie j is sufficient seyzive

it standing "fe emphasis hy Court}. The important point is

that there must be diversity let ween “claimants.” *Sobso is in no

sense a “claimant™-of the land or ait of the proceeds fropi. the

sale of oil. Its only interest ix to dispose of all of thie? nrbceediag

to claimants ‘designated by the court, and for that purpose to b.

have the court ad judic: te the title ty the real estate.

The Court of Appeals im its opinion. cites Haynes Vv. Felder,

239 F. 2d N68, Sth Cir. 1957, as. authbrity for the holding that

“it is suffice lent if two adverse claimants with genuinely adverse

interests are citizens of different statés"—even though more ©

than one may be from the same state, That citation stands

practically alone, and ix directly contrary: to the Supreme

Court of the United. St: ites and the great weight of authority.

a oe

‘ilranapolis vo Chase Nat cual bank O41 ), O14 US. 63, S6-

1. Bde 4705 Tiremies 8 Suushind *Mining Co. (1939), 308 T.S

, 6. SO SOC 44.84 1. Ed 85: Federal Turisdiction and Pro-

~. cedure, Harry G, Fins (1960), Ch. 1 pp. 6. 15. At follows some

if the arguments used prior to the 1948 revision of the Jur,

dieiary Act, by which revision the Judiciary Act and the Inter-

pleader Act were brought together. Haynes v. Felder leans

heavily on pre-1948 Act.articles and EP Chafee, The Feder-

al Interpleader, Act of 1936, 49 Yale L. J. 377,. sO5eand 3 Moore’

32.0). dh the first part af the ‘citation (p. S70): it correctly

states) that “it is clear that such a. proceeding could not be

brought as a diwe ‘sity action under 28. ULS.C.A, 31352 -° * ? it

~ has Consistently been beld that the law requ res. that each’ party

have such citizenship thaf he coul® sue in diversity every. ether

aetual or indispensable party properly -aligned. against: him.

(uli of Indianapolis v.. Chas: National Beuk., 314 U.LS..63, 62

1 |

OS. Ct. 15.86 1, Ed. 47, and this requirement ® ats been held ap-

plicable to non-statutory interpleader.”

‘Phen in thy latter part, of. the ct ag the Court appears to

have determined: to tala liberal attitude in order to retain

‘urisdiction. It seems to say that the statutes do not allow

jurisdi tion but somehow the Constitution, Art. WHY. §2, should.”

dy neue ~ for “partial dive rity.” “permissible inconph te di-

versity, “minimal diversity” and “this ftionale,” and nfikes

the following utterly chaotic jurisdivtion’Y conclusion €p. SO:

_ “Granted that the cases and text writers have Fejected

as inapplicable to statutory interpleader suits the ‘com-

- plete diversity’ rule,. it still innst be, agreed, we think,

that it ix hot easy to determine precisely how ‘incomplete’ a ’

diversify amofig claimants has actually been - sanctioned

by the. cases. This problem arises from the fact that.

though the courts and the text writers have stated that

complete diversity would not be required ‘theyyhave not

<pecifically catalogued and dealt with each of the several

possible forms of incomplete diversity.” ~ {9

& °

’ ~*

; Tersity . unnecessary.

=—-.

—15—

Again citing “Professor Chafee” the Court says, “juris

dictional requirements should be liberally: interpreted to per-

mit the federal courts to handle as many as possible of the

cases that state courts may be unable to:adjudic: te completely.”

That is directly contrary to the fi indainental law rie eat

courts. are” of strictly limited _ jurisdiction. Gtherwise the

would be-overrum with litigation. I ufthermore, the record in

the present case shows conclusive ‘Iw! that there is no: possible:

reason Why the state court of thy situs Of the land, the title of

which | is being adjudicated, would not. be as able. as the fed -

eral cout of the Easter District of lifmnois- toa Ijudicate

Tei Ae? the cont rowers, The form was a matter of choice

and not necessity. AT parties werd Prem amenable to a:

court of the sits: ‘of the land. ; Pat aie

The ¢ ‘ourt of Appeals also cites Guth v F Ev ras, Con, 155 az.

2d 563, 566 (7th Cir.) 1946, which was not an inte orpleader ac-

tion, and reasons thet the. syver ral holders of sharés in the

Donk, et al. lease could cue se parately’ for their shares of the

royalty pavinents, and that th: Mt some show make ovary te di-

A reading of that citation élearly shows that it is net rele- :

vant to the present case. It is neither an fnterpleader nor one’

* involving diversity. . The complaint in that cas, after re-

peated ainénilinents, "stat: «cone eause for reKef for negli-

‘genee and one on account” for oil and gas tat were ‘burned

and wasted. Fhe appeals court “agreed withAhe District Court

that the cause of action asserted for neghgence by the plain

tiff was “joint with: other coonants. nd could not be main.’

tained by the plaintiff alone.” ut At ‘did not “think the Dis-

trict Court stiould have ignored ty allegations,” * “on account

‘for. gas, gasoline “ * * (and tt it it) Wer a ‘several obligation

and the plaintif could sue s°} ari ately for his proportion ¢ of the

rovalty.” Nine, et al. wrace’ it it is immaterial whether or not. ;

Frm WO Ne

the various holders of royalty interests in the Donk, et al. -

lease could sue separately. The important question ison which

side of the controversy are they? When [llinois citizens are on

both sides 1) the controversy, jurisdiction is defeated.

B. THE SUIT 18 SPECIFICALLY AND NECESSARILY AN

ATTEMPT TO ADJUDICATE THE TITLE TO REAL ESTATE

OUTSIDE THE, JURISDICTION OF THE TRIAL COURT.

The distinction between local and transitory actions is as

old as actions themselves. No one has ever supposed that laws

which prescribe. generaily where one should be sited included

such suits as are local in their character, either by statute or.

by common law, unless it was expressiv so declared. Loeal ac:

tions are in the nature of suitsein rem, and are to be prosecuted

where the thinfe on which they are founded ix situated. © Jaseu4

. Adams (1880), 020 S: 6H. ; - : .

A ‘leasehold interest to minerals in-place is a tithe to

‘ealtv, and suits mvolving the title to real estate — /

‘eied | in the district: in which the dancdk is located. The jur-

ixdiction of the. district eourt’ is egextensive with “the bound:

anes of the judicial district. and extends no further, save

as congress has. expressly extended it. An action to quiet

title. to remedy er remove a cloud en. the title, is local in-char-°

acter. It must be filed in the distriet where the land is situated. -

. Robinson v. Seater OW € a, (1944). 5 as F. Supp. DSI; Tuler £

Stanolind On and Gas Co. (1935), 77 PF. 2d 802; Primas Chemr-

cal Co, v. Fulton Stecl Corp. (1918), 254 F. 454; Reconstruc-

tien Finance Corp. v. Malew (1942), 125 #. 2d 1312 Webber

Show Case and Firtigg Co. v. Wangh (19: 0). 42 F. 2d 515. The’

-jurisdigtion of the subject matter must arise frém the law, and

not merely by the consent of the parties. Grubh v. “Public

Utilities Commission of Ohio 1920), !<1 TS. 470. 50S. Ct. B74.

74 1. Ed. 972: Comsolidated & om panic s. Ine. v. v. Magtin (1941).

OD F. Supp. 567. ° ‘ . :

- settlement of aceounts as between them.

PEE

~The Phstriet Court’ mefnorandum on- jurisdiction cites

Hickok vo Galt OW Corp. cos 265 F.2d TOS, as holding that

the eofirt’s jurjsdiction is net affected by the ejreumstance

that. the funds in the registry possess the legal character of pre:

coods dived froin the sale cof interests in realty, or by the

fact that title to these funds is to be determined in accordance -

wath the state-law.

A Foading- of the ease shows that ite mot in pomt. An Ohio

resident died: in Ohio, @is estate was pending there. He owned

property in Ohio and: an oil interest. ite Texas. There was’

domiciliary: probate in Ohio, Also pending moa ‘Texas court

was go suit “secking determimation of Vights in, and accounting

,. or , ' co m

as to. the properties comprising the Hiekok Kstate i Pexa-

‘ ee cones . 3 Beele 4) Sonal

*** The precise question at bar is whether the (Ohio) Pederal

Court has abused discretion in defefring ndjudigation ofthe —

sight of the-interpleading claimants to the fund pending final

* determination of the action in Texas.” The ‘Texas. law also =ay-

that the “rovalty imvolved here ix real property, and interest

in the mineral in place pryer te extraction trod th land * °

and.it has dong been settled that the Jaw. of the state in whigh

the propérty is situated governs Mie devise of ano intends!

therein.” The Ohio court havin jurisdiction for other teiatson-,

dissolved the restrammn order and staved procemdines “until

final determination of the gatt-e in Texas.” }

At page S02 the Court highs

“The distriet judge did not abuse his discretion, in dis-

solving the temporary injunction” * * thus the® were

free to litigate their respective claims to the various Texa=

; properties and the accounting problems hetween them-

* selves as well. It may fairly be expected that the parties

will retgrn to the proseeution of their claims im the in-

‘ terpleader suit (in Ohio) not only wih an: adjudication

of their respective interests, but also with some up-to-date

Iris apparent that the Olve Court refused te adjudieate the

title to the’ part of the property in Texas, snd refused to dis

pose of the fumd o-. 7s

Potomac Mili aed he Cpe. Ballinior and Ot RR, (%.

(1914). 217 F. fin, involved a claiiy for tive damage to redlh es-

tate eaused by sparks from the raitroad. "The <uit was filed in

the Federal court of Maryland. The defendant pleaded that the

Lind) in oqutestion is an West Virginia and that, therefore. the

Court had no jurisdietidind I contendetl that ao suit for injury

to real property is purely a local action and: cannet ‘Dee mais

tained outside the situs of the real estate. Tjue contention Wis

anlield. The Court held: oe es

“The ynerring test by whidh it may be determined

whether @ particular cause of action sounding in damages

is Jocal ay transitory is that if the subject of the injury .

be real ekaie or an casement * * * obviously the action

for the reason that injury to that partieular

real estate or\easement could not possibly have arisen

anywhere eiseAhan where the thing injured was actually

situated. But if the subject of the imjury be an individual,

then un injury to that individual's: person, no matter by.

what means oceasioner-ar_where afflicted, it is essentially

ritist be lod

an injury toa subject not having a fixe 2-4 rable ae

‘wlocationt. In the courts of . Maryland a suit for damages

te reat astate caused Dy. fire negligently communicated

to improvements thereon MJoeal. (Quoting Chief Justice

Marshall of the United ‘y ; Supreme Court :) ‘Actions

are deemed transitory: w we transactions on’ which

they are founded might have taken place anywhere, but are

local when their cause is if its nature necessarily local.

it would require a hardihood which 1 do not possess to

pass this limit.” “ :

inthe present case, the Uraipaetion ook place onthe Bond

cfunty dand, in the Southern District of Hlinois. From thate

and the plaintiffs “have been and are now producins and

ninrketine oil * * 8" necording : to the Miginal complaint

. .

_19-

(App. 16). Solio in its answer { App. 18) "admits that it hia~

purchased oi) from: the property ee: - *" In Sohio’s

counterclaim for interpleader (App. 1) tt st ates that it pias

purchased oil. from ‘the property referred ty in parag he

Sof the complaint, deser ihed as the SEI, Shi. Seetion 20.

T6N: RAW, Hone County, Hlinei= sf lial tae

The District ( ‘ourt also cited Blackhor. tv, dame (1922),

204 TE aS6. 595. but failed to refer to the essential dit

ference between that case and the present oye. Th that - .

case it Was contended thi if ¥ Lecatise the lands deseribed itl « .

the deeds were an {eDonoingh and henderson Counties

(as well as Hancock County). the Ciremit Court of Han

cock County had ne juri<dietion of the subject, matter

Section 2 of the Chancery Act provides that =mits in chan,

ecery, Which may altect real estate shall be brough: in th

county where /the siie or some part thereot is situated”

Of “course ‘6 comet held it had jurisdiction. Apart ot the

and ‘was in the county where ‘the court sa‘. @> required

by the statute then and HOY.

The District Court wites Chapter TM), Ubineis Revised

‘StaturgZ. 3 SOtion 7. That Court makes 3 point of the word

sees” m tae heading. and contends that make < the ques

tion ope of venue and not jurisdiction. It contends thiaet ans

objection To venue Was. waived by the parties. Phe headin

was supplied by the compiler of, the statute and iwehet 2

part of the title or come nts of the Aci. Peopl: vy. Llaherty

(1947), 306 Tl. 304, Ti NE. ass. ‘ ee h

' The relevant portions of the statute eeu ae tollow= 4

* {

et F Venue—P ublic Corporaiion=-—Local Activin-—

“_. 4 ; ;

Libel Insurance © ompanies. <7(1) | a

(2) Any action fe. quiet tith 10 real estate, or: tol a

partition * or recover possession thereof, or to fore-

(.ose a mortgage or other lien thereon, must be brought

“f ; sa a,

in the county in whieh the real estate or some part, of

‘it is situated.”

It seems apparent from the plain wording that this see

tion is far more than a venne matter, jund: that if cannot

be waived by amere consent: of the parties or failure. to

raise the question. The Act places all three remedies in

the same statute. The principles applicable io one apply

co all three. No ong could contend that a+ te partition and’

L : : ont

POreciosure the Aet is a venue matter subject to waiver and

consent of the parties. Pf the Aet is jurisdictiota: as to

partition and foreclosure, it is mecessarily so as to actions

to quigt tithe; if it ix “must” as to partition and foreélosure,

it ix “must” as to actions.to quiet tithe. Tt is. important te ,

note Saat the word “must” prior toamendment read “shall.”

Hf one asstimigs that iis avenue matter and subject. to

owaivergeould it be reasoned that by consent of the parties

a Cook County, Hlinois cour could. partition lane solely

in Bond County, or that an Ilinois district ‘court for the

Kasten Distriet of Hlinois could quiet tithe of, partition, or

foreclose 2 morteaes 9 —property solely in the State. of

California, or even in the Southern Distriet of Hlineis?.

Similariy. could i be that by consent of the parties this

Court could quict tithe to real estate solely mi any one pf

the other:40 states, or real estate solely in the CHy of

Chicag» in Cook County in the Norfhern District, or as

in this case, solely in Bond County in the Southern Dix ,

trict! No doubt there are Cases of improper venue which

can be waived by the parties, but the quieting of tith: must

hes jurisdictional matter. In both the federal and state

~ courts. local actions involving titles to real estate must be

broaght in the district 6r county in whieh at lea. a part |

of the property is loeated., 28 ULS.CLA. 1392, 1655; LIL Rey.

Stat.. Ch. 110, Sec. 7. Any other decision would be chaotic.

If every county im every state and every federal, district

_ceurt in every district could adjudicate titles tov teal estate

solely in other counties or districts in the United States.

no tithe would be secure. HY the’contention is proper that

where the Court has jurisdiction of the parties it Tay act

in personum .and compel the parties to execute the 4 neers

sary instruments, then any casy invelyine a title to real

estate, Wherever facated, could be decided by the Court

having jurisdiction of the parties, Could it be stecesstulls

reasoned that a distriet court could effeet the fereclosur

of 2 amortyate by dee iding that the mortgagor could’) net

pay the mortgage and order hin. to convey the property. te,

the mortgage? Could .a district court: similarly effect a

partition of real estate aaywhere i the country, or even

ne another district. in Hino. by compelling the parties

to execute the necessary deeds Similarky. in an aetion: te

quict tithe, « or remote i cloud er construe or reform: 19 deed,

could the court decide the case, asim this instanes. by mere

tv deciding whe owned the prope rity, and whe ds enti ited 1

the oi! proceeds, regardless of ‘where the land t= located?

If that were the Taxt. what tith seeurity, would: a sttiss

quent owner havei! he'wiuld be required toteheek thy ie

tions of all the courts in the country to see how thes had

‘

construed thy: tithe » thie prraperts

The District Court an ats opimion alse erted) Beran

Minray (W911), 251 TW 805. 96 NUE 5460+ That? case

concerned the estate of a Cook County, Hlmeis, resident.

She died cowie a munber of properties in “Cook Coun

fy and some am indians. Hor -hushand. the executor, ine

eeuted, certam deeds of this property to dis soni hi,

It Was contended that he execeited his authority. Phe su

was a bill in equity: to set aside certain deeds to the prop

erty, ineladang sha in dmdiana. The. trial court ordered.

ee Cz

re-conveyance’ of the Indiana property. The Supreme Court

in a four-to-three decision upheld that part of the decree.

The decision is based on the ruling in a very early United

States Supreme Court case that “when the defendant is

liable, either in consequence of a_conteaet or SF trustee a

or as_hokder of a ‘Tegal title acquired ‘by a species of ‘mala

fides practiced on the pkéintiff” the. court may act.

the person. The court then negatives the value ot sap

cision by saying that “the interpretation, as well as the

force and effect to be given the will of Mary M. ¢ mani

as well as all other transaetions affecting the tithe of: the

Indiana real estate, may ultimately become a scdins to.

he determined by the courts of that state.” -The three-judge

dissenting Opinion “trongly disagrees with the ma jority

holding. > ‘

The trial court in its opmion citing the above case ot:

evans v. Murray (1911), 251 TIL 605, 96 Nu. 046, states

the question there wes ‘tsomewhat akin to the question

here presented. "’ Kline, et ‘al. believe .that gase is net

in point with the present action. The Key to the uphold

ing of jurisdiction in the “Bevars case was, thet “when

the defendant ts liable, either in consequence -of a cori

tract or as trustee or as a holder “of legal title acquired

by a species of mala fides practic ed. on the “plaint iff.” the

court may aet on the person of the defendant. It might be

that a person who contracts to, give a deed may -be followed

ty another jurisdiction and compelled to ‘execute the deed

—ealled for by the contract. Sitnilarly, it might be that a

dishonest trustee who absconds, or a person who, aftey :

species of mala fides leaves the jurisdictioneimay be pur-

sued, Such situations are tar removed fronmy the present ae

tion seeking to quiet the title to, or remove a cloud on,

the. Kline land. or construe the various deeds, leases and

a wer e

e aw?

nssininentis. of reforta, tf eee sinh. ‘the pa tie ‘Brown

Warranty Deed te Coal and Mining Rights Surely the

cigte ix not *“4qrown Wide for t hye: Court to effect the con

. ,. s . * “ >

struction of an Ambignoits deed. or the reformation of -a

; pe

a= easterly ons ston dee. merety by acting on ‘he person

: F on etacom sahe vaheerinpe thet “ea, eet eis -

; of the pore taees ae ordet ne hy Narre C2 pane titi LEEOS Abe

° rehedinees, ote, Of white + thieeet- th Joovestat jurisahe tion Is

‘the trib eour : a “rrnenit er cheers in tis cus © wstruing

the tithe: ar fave of PhOuR. eo a. ‘AR bine. ot al. teeteve it i>

af no effect

Cc THE DEPOSIT WITH THE COURT BY THE INTER

PLEADER DOES NOT PLACE JURISDICTION IN THE

COURT WHERE IT WOULD, OTHERWISE LACE JURISDIC- .

TION. JURISDICTION ‘DETERMINES: DEPOSIT DEPOSIT

i i bree? ‘i strie Court in {t~ cope rn tents sts ms, one: can

net Tr dispute j hint thi Court higa~ ; rym ite 4-4? oOvVeT the

proceeds of The Tt ite aside in this C'ourt."” This clea!

ly is in error! Tt ts Sbviout that Sobie clepusited et tund-

: . : 0

with the Court. ne that dloe= on % ove it jurypsetie? tem.

“In an ih terpleader action jurisdiction determines

chepocostt. ent? cheppersnt yur ipchie’ pOUL, i; would te more.

than mere howelty to hold that. thy Court otherwise

dae Ring jarisdietion, the interpdeadet ‘would confer

juMndiction eli the. “'ourt to deteribitie luis true obliga-

tion, in, the face of antagotiste claim-. amerely by

depositing the. amoun cof its admitted. — vy. with,

the Courts Under that theory the cuterplead®r eould

confer jatisdiction on at) court by depositmg the

lee omtirels yseless anal unnecessary. The truth is that

Aunad in that eeurd. and in sueh event the =tatute Vv would

: niless. the Colrt Wwiatu- ample jurisdiction ‘in the

ae yar anise A there is no fanedin the ines in which that

werd is used.” Vutual Lite Tue. Ce ‘. Lott (1927).

D.C.) 375 FB. abo. 352 Bert ae .

—- *

t also must be borne in mind: thaf if the trial court in

the present-aetion is correct in holding that the aetion Is

transitory and not local, then jurisdiction must be based

‘on some cother ground. Since (1) the land is not within

the jurisdiction of the Court, and (2) the Court does

not havy jurisdiction of the parties due to lack of- diversity

of citizenship, and (3) the deposit of the funds docs not

’ hariadiet) mr to

eontfer fourisdietion, then the Court ha- n

‘ ’ -- &

decid’ any transitory question.

Il.

THE. DECISIONS ON THE MERITS BY THE DISTRICT

COURT AND THE COURT OF APPEALS WERE CONTRARY

TO ALL OF THE EVIDENCE AND THE LAW OF ILLINOIS

_AND THE WEIGHT OF AUTHORITY GENERALLY. THOSE

DECISIONS, APPELLANTS BELIEVE, MAKE A TRAVESTY

_OF JUSTICE IN A COURT OF EQUITY.

The “Warranty Deed to Coal and Mining Rights." ex’

eomt fer the words “and other mineral” in’ the printed

form, is plainly a ean¥evance Gnly of coal. It is entitled

ie Jarge block lettering, “Warranty Deed to Coal ‘and

Mining Rights.” Tt specifically limits the conveyance to

“ander ‘the surface.” ‘together with the right te conduet

mining operations under the surface "Tt refers te “rooms,

eneries and mining ways at coal depth under the sur-

‘face °:° as and for mining ways, to and-from beds

of coal or other mineral in other lands.” (N.B. Not mining

ways, to and from beds of coal in other lands, but to and

‘from-beds of coal or other wineral in other lands.)

. e a ”

The words “at coal depth” were interlined by typewriter

in the printed form. There must have been at ‘the tine an

; obvious and reasonable purpose in the minds of the par-

ties. It is noted that in many other deeds using the ‘same

primed form, to the same grantee, prepared hy the same

coal company attorney, notarized by the same notary, and

part of the same series of purchases, the words “at coal

depth” were not inferlined. But other interlineations were

used in diew the reof, « wg. “except oil and gts" and varia-

tions having the same meaning. There Was an obyiou-

pattern of having one or another of those jnterlineation=,

‘but not both. Untéss the: werds “at coal depth” -were in-

tended to denote the same limitation as “except oil and

vas.” they would serve no phirpose, There wonld be no_

logical purpose in specitically limiting mining w ays and

rooms to coal depth: that is the only place.mining ways

and reoms would be under any circumstances, If there

Was any good reason related only to coal for ins’ rting

those -interlined words “at coal depth.” that reason would

have been equally geod for all deeds..

The only way the deeds can inelude oil and gas is to

conclide that .the parties intended the words “other min-

eral” to ihelude oil and gas. The derds speak of the “right

to mine and remove. said coal arid other mineral and the

right to conduct mining operations under the surface of

sard tracts of land-therefor.” and of “mining ‘ways to ard

from beds of coal or other mineral in other lands.” One

does not “mine” oil and gas, or “conduct mining operations

under ‘the stirface” for oil and gas. One never speaks ‘ot

“beds” of oil and gas. The words “other mineral” appear

specifically three times. and a fourth time as “therefor.”

It would be unreasonable to argue that one reference to

“other mineral” includes oil and fas, but other refereneps

in the same deed do not. The test ix the intention of the

parties..It is nothing short of ridiculous to argue that the |

parties intended tc include, oil and gas.

’

Cc.

’

Dowk, et ai. mtroddeed no evidence whatever bearing

on the intention of the parties. They introduced other

deeds and leases and rested their case. On the other hand. °

‘line, et'all introduced jiegreat amount of direct evidence.

William Ganzer, the aged agent of the coal interests and

- solicitor ‘of the coal rights from the farmers testified. Hix

‘testimony Was uncontradié ted that only coal rights were

purchased and intended to he purchased. He actually went

to the home of the granter aed purchased. the options.

. : , .

‘

"Mr. Gianzer testified that subsequent, to the conveyances

he had a conversation with Rassieur, since deceeaSed. Ob- |

jection to the testimony was sustained, An offer af proof

Was made that, if permitted to testify, he would say that

he had made a special trip to St. Louis to ask Rassieur

what he intended chy the words *tother fineral’’ in the

deeds that Rassieur replied to the ofTdet that coal and other

sanineral 1 Fae mined with. coal, and not eit and ga

were intanded and pure hased, and that he, Rassieur, would

so testify if requested. The brief of Kline et al. clearly

shows -that the objection shoukl have: been overruled and

the testimony admitted.

; i

. The. printed form of “Not@e of Acceptance of Coal

Rights Under Option’? used in all -cases prior to exeeu-

tion of the deed was introduced in evidence. It does not *

. ad ‘ . .

speak of either oil and gas or other. mineral,

The sreeords of the coal company were subpoenaed inte

court. This included many letters and documents over the

signatur® of Theodore Rassienr, the grantee attorney for -

the coal company. They specifically referred to the land in

question, ‘and all of the properties in the field. AIL showed

eonchusively that only-coal rights were bought or intended

-“@

-— —

at |

to be bought. There was not even a suggestion that oil

and gas were included or intended to be ineluded.

The words “other mineral” as used in this Warranty

Deed to. ‘cal and Mining Rights, and under the cireum-

stances, are ambiguous. The adoption of arbitrary detini-

tions in reference to mre ‘ral substance buried in the earth

is not permissible. The word “mineral® standing by it-

self, might, “under a. broad, general, popnlar definition,

embrace the soil and ‘all that ix to be found beneath itse

surface; under a strict definition coupling it, wit) mines.

it covers all substances taken out of the bowels of the‘

earth hy the process of mining. With wreferenée to the.

scientifie detinition of minefais and* the popular under.

standing of what constitutes minerals, it ix necessary, if

- possible, in construing’ grants, taser ‘rtain the intention of

the parties. Iti< eeessary that gach case be decided upor

the language of the grant or reservation, the surrounding

circumstances, and the intention of the grantor if it can

be ascertained. The word “minerals” is used°in so many *

‘senses, dependent: upon the context, that the ordinary -deti-

‘nitions of the dictionary throw but little light .upon. its

significaney in a give ‘case. The most reasonable rule is

that each case must be decided upon the language of the

grant or reservation, the surrounding cireumstanees, and

the intention of the grantor, if it can be ascertained. This

is the “reasonable rnle, and it ‘is ~apport ted by an abun.

dance of authority.”

The primary purpose of construction of a deed is to

_ ascertain the intention of the parties, to be determined and

; gathered. from the instrument as a whole, giving effect to

every word and rejecting none as meaningles or repug-

nant, if this can be done without violatimg some positive

rule of law. The words need not be construed literally or

Z !

tog

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ie amy

strictly, siuce greater regard ix. accorded to’ the real in-

tention as mahifested in the entire deed than to any par

ticular word or arrangement -in its expression, Kinder v.

LaSalle County Coat Co. (1923), 210 Th 126, 132, 1410

N.B.. 5373 Miller ne Ridgley bree Mn. 2d 223, 117

N.E. 2d 759, 7602 Texas Co. v. O'Meara (941), 377 TL

144, O60N, BK. 2d oa ee Sagnotin ideas Mio. Co. v. West

(1940), yo4 Al. HG, 30 NUE. 2d 24, 262 Bear v. Millikin

| Trust Co. ° (1929), : 3060 il. 366,: 381, a N.E. 349; Nance

. Donk se 13 Hk 2d : 399, 151 N.E. 2d 97. (Opinion

a the ¢ Court); Hardin, Transfer. of Mineral and Royalty

Interest, pila Or Re ‘servation: of Coal and. Other Min-

Trals (1959), No.2 U. of UL Law Forum 507, 51S.

The arord “mine” is indicative of the intention that the

right to drill was not reserved. It is. a’ matter of ‘common

knowledge that coal can be removed from the ground by

- lateral mining operetions which will not disturb the sur-

face. Codl operators mine tracts consisting ‘of hundreds .

of Acres of coal. by means of underground galleries and

in many instances the coal is sold independent of the

v. Texas @o, (1942), 379 UL 450, 40.N. EK, 2d S26; 529,

This is also the law in Indiana ‘and. Ohio. Monon Coal

Co. v. Riggs (i944). 56° NUE. 2d 672, 57 NOR. 2d 508;

Jividen v. New Pittsburg Oil Co. (1955).45 Ohio App.

204, 187 NE. 124.

The Pennsylvania, courts, probably the most experienced —

in oil and gas law, go further and hold that “there is-a-

rebuttable presumption that the’ word -mineral when used

in-A- deed, reservation or exception’ does: fiot’ inelyde oil

‘or natural gas.” Dunham v. Ark patrick (1882), 101 Pa.

3¢, 47 Am. Rep. 696; Sdver vy. Bash- (1906), 213 Pa. 195,

‘ - ns - - ’

“hy

‘

mh ite

. FS ' Z

“ . t

OWA, | 832; Pre ees v. South Pean. Qil Co, (193), 23s

Pa. 31, S45 A, 203 ‘Bundy vo. Myers (1993), 372" Pal 583,

94 “A. 2, w24/ “” Ho oe

* ° . ©

. Where words of inlieritance ky not used, the rule is

that” every word used int the convey vanes, irrespective of

=e whery it ‘may be found, shall he given weight in eonstruing

the<instrument. Although défendants seek to captign the

‘ quoted statement an habendum clause, itis in-reality, a

part of the granting clause. The habendum clause: is the

“to have and to hold” clause. Theré is none inthis deed.

The old decisions making a distinetion based on the ‘lo-

cation’ in a .deed of particular wording are no longer

followed by the Supreme Gourt of Hlinois. In construing

a deed all of its parts should be considered’and npmoree

if. possible. Since it eannot he, presumed that) words s

terms in aw conveyance wer employed without’) a mean-

ing, or having Sone effeet accorded them, a construction

will be adopted, ift legally perinissible, giving effeet not

only to the instrument as a whole, but to each word and ~

term used, rejecting: non? as meaningless, repugnant or

surplusage. The circumstances attending the transaction.

the situation of theapartiés, the objects which they had in

_Mind,. as shown ol) this deed, as well as those they. did

not have in mind:and could not attain, merit consideration

in construing deeds. Smith v. Grubb (1949), 402 LIL $51,

84 N.E. 2d 421, 425; Magnolia Petroleum Co. vy. West

(1940), 374 Ill 516, 30 N.E. 2d. 24, 26; ‘Bear ve Millikin

Trust Co. (1929), 330 Ill. 366, 581, 108 Nv. 349; Rhow-

berg v. Texas Co. (1942)¢ 379 TL. 430, 40 N.E. 2d :

529; Texas Co. vy. O'Meara (1941), 377 UL 144, 36 NUE.

“2d 256; Kinder v. Lasalle County Coal Co. (1923), 310

IL 126, 132, 141°N.E. 537. :

~~.

‘mutual mistake?

o..

Pa o oa ‘

4 F aon! | See '

_ Equity may ‘reform a written instrument’ failing to

express —— ‘made or intended. by parties through

either of law: or of fact, or mistake of

one accompanied by the fraudulent’ knowledge and pro-

curentent ; other parties. Darst v. Lang. (1937), 367 TIL.

11%, 10 NEL 2d 6: 10, 661; Met ‘all : MBiieton | (1922 yo OMS

Ih. 408, $12, 13B6 N.E. 7222 Dil vo Wiel maw (1953), 415 Il.

448, 100 NEL 2d 765, 769: Dazeyw v. Binklew (1918), 285

HW. 545, S22. 121 NE. 165; Hermann, Reformation and

Rescission (1960), No. 1, U. of HL Law Forum 1.

If there ix ‘any inconsistency in the instrument between’

the printed form ane oe typewritten Words “at val

depth.” the typewritten Wards will be controlling as show.

ing the real intent or Sige parties. Hanahn v. Hanghn

(1921), 206 TIL 305, 308, 129 N.E. 807,

Tlie right to ingress and egress, and the right to us

the surface of the land, which may be imylied trom a

<pecifie grant of oil and gas, will not de implied against

language in the deed which is inconsistent with, or con- -

trary to, such rights. The Warranty Deeds to Coal and

Mining Rights do not convey surtace rights for any pur

pose. The result ix that no oil and gas rights were con?

z . .

veyed: nor interded to be conveyed:-The eonveyance. was

limited toeaal and other minerais recoyered at coal alepth

by means of under groand passageways from other lands.

Ambiguities in the deed shoud ‘be resolved agains the

grantee. becduse the granter drew the deed and approved

i as-drawn, Chicego, Wilmmaton d& Franklin ‘Coal Co.

v. Mine r (1942), 127 F.2d fons; wh dp rv. LaSalle Coun:

ty Coal-Ca, (1828).°310 HL 126, _ 141 N.BL 37.

The -Distriet Court’ memorandum or the merits and

lbonk, &t al. quote the so-called “concurring opinions” ip

added. The “coneurging opinioti=" oppose construction

alleges

—31

. . - |

Nance v. Donk (W958), 13 AIL 2d 399, 1 NEL 2d 97.

They ignore the Opinion of the- Court and the great maris

unanimons opinions of the, Supyenkw Coyrt of Mlinois.

Those “conenurring opinions” are more in the nature of

dissenting epinions. They were added under the pressure

of belated petitions by the [hinois Oil atl Gas Association

for- rehearing, and without further hearing being granted,

It must be noted that the ‘lecision Was not on the merits

but on the sufficiency of the complaint. It was uphe ‘ld.

The opinion as originally wiven Was cunanimons execpt

for ‘the notation at the close that Mr. Justiee Mouse diss.

sented Nniseqnent ly, the Hlineix Oil and Gas. Association,

as amicus cnriae, imervened with'a motion for rehearing.

The opapion was modified slightiy upon denial of petition

for behaarine. The first sentence of the fourth paragr pie

was stricken, viz. “Before we consider the merits of the

complaint, it is Heeessary to dispose of a matter of form

that d@fendant urges.” The second -entenee of the next

to the last paragr aph was modified from “The complans

ata) | Bas UME alleges °° °° T he last sentence

of the same paragraph: was changed: fromm “Wy OMY Opin

ion these’ tacts. i proved. would entitle the qplauntiffs te

the relief they seck™ sto “Tu ont ob Mion these alles ions

are *sufficient t% require an answer.” Mr fustice llouss

withdrew his dissent and “the conene ing opinions -were

by,

agree that reformation of the Warranty Deed to Coat and,

Mining Rigiit~ ix called Yor. They otherwise appear tis bye

more im the mature of dissenting opiniotis. Their oppo

tion 40 construction ix diffieult, if not impossible, fo pation

alize in the light of the well settled and clearly stated ‘law

of Hino in prior decision- and in, the Opinion of the

Court in that case and even in thé citations referred te

by those “concurring opinions.” They are so obviously -in

error in so many respects that they are-of no value. If

“they correetly state the law in Hinois. it would be a radicale

departure from precedent in Ulingis, and the weight of

authority elsewher:. es

Particular attention is called to the relevant wording of

the Opinion of the Court. The Nanee case involved a War-

rub a to. Coal and Mining Rights identical with -

the pfesent one.-The Opinion. of the Court reeites the

al ‘Hegations, of the complaint. viz. |

- Theodore Rassieur, the grantee in that deed (ana

Pip UUOE EG Was a principal shareholder and di-

rector oF Donk Bros. From 1907 to 191) and there-’

after Rassienr and other agents of the company,

<flicited options for coal right< in two townships in

Bond Cotmty. The agente represented to the owners

‘an the vieinity that only coal was desired, and ‘the

right to lremové it by means of underground passage-

ways. The various deeds resulted. In order to make

-definite the intention of .the parties that no surface

rights or anything below coal depth were being cou:

veyed, the words “at coal depth” were inte rlined in

the original ‘deeds. The grantor~ did not intend to

seller the grantees to buy the oil and gas underlying

or the right to drill for and recover it. The deeds to

the coal rights were prepared by the grantee. The

erantors intended to convey and the grantees to ac-

quire, only the eoal and such mineral substances a-

formed a part of, or were found Iving with, the coal:

in place. | mee

In construing deeds we start with the proposition

that the purpose of construction is, of course, to ar-

rive at the mtention of the parties. To that end all

‘of the Words used in the conveyance are to be taken

_into secount. and effect is to be given to the instrument

asx a Whole. Under these cirenumstances the relevant

background facts become ren. From what has

poee. ~<

been said it follows that the deere of the Cirenit

Court of Bond County must be reversed and the canse

remanded -with dircetion to overrule the motion to

«dismiss.

“In. the fgee of the Opinion of the Conrt and the obyiou-

errors of the “concurring: opinions, ix hevond compre

hension how the District Court in its pcarnadin on the

merits of the present case could bold for Donk, et al. and

sav that. “the ghosts of the past that have. jong haunted

the courts in the State of Hines. when they were faeed ’

with the term eoa! and other mineral was daid-te rest by

the Tlinois State Supretie’ Conrt in the ease of Manes 4

Donk Bros, Coal-and Coke Company.” Dow.

Certainly, if vhosts of right and equity owere laid to

rest, it. was ina shallow gravesThe [Hlinois Supreme Conr

has consistently held that each case must be decided upor

the larguage of the grant, the surroundime -cireumstanees.

and the intention of the parties. “The adoption Of arbi

trary definitions in reference to mineral substances burted

in the earth ts not permissible "Phe word mineraly

ds used in so many senses, dependent upon the context,

that the ordinary definitions of the dietjonary throw but

lithe light upon its Significance in a given-case * * * The

most reasonable. rule i= that each case aust be decided

upon the language of the grant or reservation, the sur-

rounding circumstances, and the intention of the grantor.

if it can be ascertained * * *" Header v. LaSalle Counts

Coal Co. (V925), 31M 1P126, 132. 141 NE. S87. Those-

statements are repeated over and over in the many deci.

sions cited. If they are the ghosts to be laid to-rest. they’

will, like Bonquo’s ghost. rise again. and again to haunt

the rapacious scheme=-of sucli ax Vouk, ot al. Right and

equity must prevail.

CONCLUSION.

> Pan ‘

tis respectfully submitted that the petition for a writ

ef certiorari should be granted for the following reasons :

The Court of Appe vtls has 1) slecide-c an important ues

tion of local law in a Way probably in contliet with ap-

plieab’e local decisions: 2) deeded an dinportant question

of federal law which has not becn, bat should be. settled

byethis Court: 3) decide da federal question in ‘a way prob-

ably in conflict with applicable decisions of this Court

. and 4) has so far depvart ed from the accepted and uns!

course Of judicial proceedings, or <0 far sanctioned such

a departure by a lower court, as to call for an exercise

of this Court's power of supervision: all as provide ‘dl by

Rule 38, Seetion 5¢b) of the Supreme € ourt,

Pree!

Respectfully submitted,

WILLIS P.-RYAN. ee ,

HARLAN HELLER,

RYAN AND HELLER.

1709 Broadway,

Mattoon, Ilinoi-~,

- L. C. COMBE.

311 W. Main Stree,

(ireenville, Illinois,

Attorneys for Counter Detendants

Edward W. Kline and Ruth Lyocl”

- Administrators of the Estate of

Walter : Aline, deceased: RR. E

Hayes; W. 7. Frederking and

re iad mann.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.