# Petition for Writ of Certiorari — Miles v. Tomlinson

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1963
- **Citation:** 375 U.S. 828

## Text

oH ¢
vil CE DL

spreme Court US,

yD! ED

REPRO COURT, U, ge] JUL

Supreme Court of the Yuited fies

_Octoper TERM, A.D. 1962
nae No. 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 ,
I.
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 ~ 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

Su

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 ©
v
| 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.

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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
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. >
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e
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 » *

___. CONSTITUTIONAL PROVISIONS AND
eri _ STATUTES INVOLVED. -

:
- 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. . ‘ .

c

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

°
4
_°

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.

I.

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

A
. 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
C

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 . ‘

“(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: ‘ 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 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

oo

a wer e
e aw?
2s
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.

’

fe

¢

-
’

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

.

~~.

‘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

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_1135%3A2. Public record. Not legal advice.