Opposition Brief — Placid Oil Co. v. Union Producing Co.

é a a m8 ter aa Office: Supreme Ceurt, U.S.

: oT. Set FILED °

—Ape—-28 1966

" a Te THE | !

JON F. DAVIS: cUER

“Supreme Court of the nite

OCTOBER TERM, 196

Nor Boe al c

_ PLACID OIL COMPANY and LA- TERRE CO., INC.,

Petitioners,

v.

UNION PRODUCING COMPANY and TEXAS GULF

- PRODUCING COMPANY,

-. Respondents.

On Petition for:a Writ of Certiorari to the Supreme Court

of the State of Louisiana and/or to the Court of

Appeal, First Circuit, State of Louisiana

JOINT BRIEF OF RESPONDENTS IN OPPOSITION

_. ELWARD WRIGHT =

254 Barrow Street - .

- Houma, Louisiana

J. MORT WALKER, JR.

225 Baronne Street

New Orleans, Louisiana

JOHN T. GUYTON:

; | - RAYA. BARLOW

Of Counsel: , 867 Texas Eastern Building

Ellender, Wright & Wurzlow, _ Shreveport, Louisiana

Houma, Louisiana. “ .Attorneys for Respondents.

Jones, Walker, Waechter; |

Poitevent, Carrere & Denegre,

_ New Orleans, Louisiana.

Hargrove, Guyton, Van Hook and ian

er Louisiana.

LECOMTE, SHREYEPORT, LOUISIANA |

- . 4

ae one C

: Opinions a Ene

Jurisdiction ..

Counterstatement of Questions Presented..................

Statute Presented ....

Counterstatement of Case .

Argument aa

I. There is no important question of

federal law involved. ..

II. The judgment of. the state court was

based on an adequate and independent

state ground.. .. : =

III. Petitioners failed to raise and preserve

a federal question in the state courts. ........

Conclusion ...................

18

21

ou

CITATIONS

Cases Page

Almonester ¢; Keaton, 80 U5.1 (1850), Se Ro 16

Black’ v. Cutter Eaboratories, . |

BBL U.S. 292° (1956) aot 15, 19

' Crayin ¥. Powell, 128 U.S. 691 (1888) .......... 18, 22

Ferguson ugGe eorgia, , ae ie ae

"865 UNR570, 572 (1961) cance eee cecesceeeeeeeeee 22

Graham v. Gill, 223 U.S. 643 (A911) eens 17

‘Hanson v. Denckla, 357 U.S. 235 (1958) ..-.-co--..- 23

Harding v. inois, 196 U.S. 78 (1904)..... wi ale

Herb v. Pitcairn, 324 U.S. 117 (1944)... ec ipe 12,

Huckins v. Duval County, Florida, 286 F.2d 46 °°

(5th: Cir. 1960), cert. den. 866 U.S. 945 ....... 15, 16

. Kirklin v. Ellerbe, 278 F. 168 (5th Cir. (1922)....... 15-

In re Lampkin, 355 U.S. 59 (1957) ciceescecececee 22

‘Lanfear v. Hunley, 71 U.S. 325 (1866)................ 16

Live Oak Water Users’ Ass’n v. Railroad . | |

Commission, 269 U.S. 354 (1925) ..-cecevn- 22

Long v. Northeast Soil Conservation District a |

Louisiana; 226 La. 824,77 So.2d 408 (1955)... 22

Lyrch v. New York ex rel. Pierson, .

298 U.S. 52 (1984) . 22

Michel v. Louisiana, 350° U.S. 91 (1955) ne 22

ee

tii

Oxley Stave Co. v. Butler County,

| 166 U.S. 648, 655 (1897) ........... r 21.

- Radio Station WOW v. Johnson, | ea

826 U.S. 120, 128 (1945) . 23 |

‘ } |

Thomas v. Iowa, 209 U.S. 258 (1907) 3 23 |,

United States v. Johnston, ae ee |

268 U.S. 2207(1924) ........ | 15

White v. Leovy, 174 U.S. 91 (1899) ceeecceeceneene 19

' White River ‘Lumber Co. v: Arkansas,

279 U.S:692 (1928) ... : ~ 2

| Whitney. v: California, 274 U.S. 357 (1926)........ 23}

- Statutes’ |

URE TAR ccc Se

Miscellaneous p:

“Clark on Surveying and Boundaries -

(8rd ed. 1959), § 38 ............... 20

| | IN THE ,

Supreme Court of the United States

°° OCTOBER TERM, 1965 7

pa 1113

PLACID OIL COMPANY and LA-TERRE CO., INC.,

Petitioners,

v.

UNION PRODUCING COMPANY and TEXAS GULF

PRODUCING COMPANY, ~ 7

. Respondents.

‘ On Petition for a Writ of Certiorari to the Supreme Court .

- of the State of Louisiana: and/or to the Court of

' Appeal, First Circuit, State of Louisiana

JOINT BRIEF OF RESPONDENTS IN OPPOSITION —

ej

OPINIONS. BELOW -

The opinions below are referred to in the Petition.

s

e

JURESDICTION |

Petitioners seek to invoke the jurisdiction of- this

Court under 28 U.S.C. § 1257 (3). However, this Court

F lacks jurisdiction because the case does not. involve a

’ substantial federal question and the judgment sought to

be reviewed is based on an adéquate and independent

_pon-federal ground; and, in any event, a federal question

was net raised and preserved in the Courts below.

?

0

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2.

- COUNTERSTATEMENT OF QUESTIONS ‘PRESENTED.

Petitioners’ statement of the question presented. is \

incorrect and woyld attempt to inject a felleral question.

- The Court of Appeal, in the construction of an oil and

gas lease description calling for the North 200 acres of

~ Section 18, Township 20 South, Range 17 East, and North ©

400 acres of Section’ 110, Township 20 South, Range 18

_ East, found that the parties to the lease intended that 600 .

acres of land in the two sections would be covered by the

lease and intended that the boundary between the two...

sections would be the range line established in 1831 by.

Foster and Walker and approved in 1832 by the Surveyor 2

General. Thus, judgment ordering the land to be so located

on the ground was — - questions pres are:

()) Whether the state court’s ‘factual “deternitiia- :

tions involved ‘a substantial federal question ;.

& (2) Whether. the state oui judgment was. based

) on an adequate and independent- non-federal

ground; and . — ; , as

(3) Whether petitioners raised and preserved in

the state courts the federal question which they.

contend is presented, if the federal claim and

the: grounds therefor ‘were not pleaded. as’ a

special or affirmative defense, as required by

state law, but to which only vague reference

was made in eral argument before the District

Court, in a brief on appeal and in an applica-

tion to the highest state court for certiorari,

writ of review, which application was de-

nied without opinion. :

at

pane 4

3 os - ; f

STATUTE PRESENTED, a

2 It is submit that none. of thé- seven statutes. ay

. ; printed i in Appendix.A of the Pyne is ere.

COUNTERSTATEMENT ‘OF THE CASE |

- Petitioners’ statement al: the case ‘is incorrect and

would attempt to inject a federal question. On June 21,

s,

1948, La-Terre‘) as lessor, granted to Union, ‘?) as lessee,

an oil and gas lease covering 18,056 acres of land in

_ Lafourche and Terrebonne Parishes, Louisiana (C-6; Stip.).

‘Included among the lands situated in Terrebonne Parish,

_ Louisiana, was land described dn the lease as: .

All of Section 13 (except W* of SW), contain-

ing 560 acres, Township 20 South, Range 17)East, ,

. and all of Section 110, containing 612.84 po

2 Township 20 South, Range 18 East.

_ In sccordance with the provisions of the lease,

Union, by instrument! dated ‘August 24; 1949, selected for

~ lease continuation 4,456.84 acres of the land described in

the lease, for which it paid to La-Terre $10.00 per acre,

- or $44,568.40, as required under the lease. (Tr. 69; C-8, ~

: Stip.) Included in this selected aerate

scribed i inthe instrument as: |

North 200 acres of Section 18, ‘cuisine 200. acres,

Township 20 South, Range 17 East, and North 400 .

. jJand de- -.

‘-€%) La-Terre Co., “tee: one of the def ndants ‘inicthe state ’

, court, is- herein referred to as “La-Terre.”

(2). Union Producing Company, oné of the plaintiffs in the

-, State court, is herein referred to as. “Union.”

%

4

4 ) i

b ¢

acres of, Section 110, containing 400 acres, Town-

ship 20°3 outh, Range 18 East.

see

- Texas Gulf (3) Zequired from Union onéhalf of its

lease in 1950 (C-9, Stip.), and, commencing in June, 1951,

they drilled and completed as commercial producers: five

gas and condensate wells on land under -their lease, for.

which La-Terre received royalty. :

Just’ prior to March of 1960, Union and —

Gulf had made a survey on the ground of Sections 13

and 110 and for the first time learned for.a fact that

_ the governmental survey of Section 13 and two govern- —_

mental surveys of Section 110 did not conform and har-

_ Monize but actually overlapped.each other. for a distance _

of approximately 3, 000 feet. (P-3, —_ P-4; Tr. 7 1, 82

108, 109)

The overlap was brought about by different com |

tions of the range. line between Ranges 18 and 17 East

pursuant toa survey of Township 20 South, Range 18 .

East, by Foster and Walker, Surveyors, made in 18381,.

and approved in 1832 by-the Surveyor General; a re- |

‘survey or recheck of the Foster and Walker survey by

Gorlinski, Surveyor, made in 1855 and approved in 1856

(wherein he moved the west boundary « or range line of

Foster and Walker) ; and a partial survey of ‘Township

20 South, Range 17 East, by Connelly, Surveyor, made

in 1837 and approved in 1842 (wherein he placed the east —

(3) Texas Gulf Producing Company, the other plaintiff in _

the state court, is herein referred to as “Texas Gulf.” |

a

boundary or range line of Township 20 South, Range 17 -

East, some 3000 feet farther to the east than the Gorlinski .

and Foster and Walker surveys, measured from the

location of the range line _at the Northwest corner of

Township 20 South, Range 18 East), notwithstanding the

then existing 1831 ‘survey. by Foster and Walker.“ (A-1,

A-2, A-4, A-5, A-8, A-9, Stip.; P-2,.P-8a, P-4; Tr. 15-82, _

200; 206, 207, 214, 246, 249-257 and 260-263.) eo as

| The plat reproduced in the Opinion of the Court

, below (178 So.2d at p. 394) “> clearly shows the location

‘of the three range lines. The four charts: attached to

the Petition also illustrate the location of the three range

"lines, although Chart 4 is. misleading, ‘as the range line

shown and referred to thereon by petitioners as ‘ ‘Cor-

rected’ Common Boundary of Federal Townships, Drawn

te by Louisiana Court of Appeal,” is, in fact, the range line | 2).

established in 1831 by Foster and Walker and approved

in 1832 by the Surveyor General. It is also the range

line which, the Court of | Appeal found, the parties to the

lease intended as the boundary between Sections 13 an d-

110.

(4) The location of the Northwest Corner of Township 20

'. South, Range 18 East, was identi¢al in the Foster and

Walker survey and the resurvey by Gorlinski. : From this

point, however, the Foster and Walker ‘Survey veered

south four degrees while the Gorlinski resurvey was run

' due south from the Northwest Corner.and resulted in a

_ distance between the location of ‘the Southeast Corner

‘according to the Foster and Walker survey and the re-

survey by Gorlinski of Township 20 South, Range 18

East, of approximately 27 chains.

(5) Appendix B of the Petition, p. 21b.

eS

_ Prior to the final completion of an oil and gas lease

‘which La-Terre granted to Placid‘®’ in March of 1960,

| La-Terre, being fully aware of the overlap and not know-

ing exactly where the southern boundary of the lease.

owned by Union and Texas Gulf might be placed, con=

sidered the. matter thoroughly before deciding upon the -

description to be placed in Placid’s lease. (P-11- P-38).

Accordingly, on March 30, 1960, ‘La-Terre granted :

to Placid the oil and gas lease covering, among other:

lands, all of the property in Sections 13 (except W1% of

SW) and 110, except the property in those two’sections

“covered and affected by the Union-Texas Gulf lease.

The description in the Placid lease thus makes the.

location of the North boundary of Placid’s lease completely

. dependent on * the location of the South boundary of the: |

~ North 200 acres-of Section. 13 and: the North 400 acres.

« Section 110, as described in the Union-Texas Gulf lease.

Union and Texas Gulf. informed Placid and put ~

it on notice, shortly after Placid took out a permit to

drill its first weil, that they would assert all of their legal

rights in the event that it was determined that a well was

drilled by Placid on land covered by. the Union-Texas

Gulf lease.. (P-44; Tr. 149, 150).

This declaratory judgment action was ‘brought by

respondents to have the Court determine the location on

the ground of the 600 acres in Sections 13 and 110 which

_ they contended was covered by their lease, after it became

(6) Placid Oil ‘Company, the other defendant in ‘the state

_ court; is herein referred-to as “Placid.”

iis ;, } \

= onedielicomaeiaiy | oh 7 4 ae

apparent that the parties could not agree on the ground

location. La-Terre took, the side of Placid, as it was en-

titled to a larger royalty under ‘the Placid. lease. (5 x ;

Stip.) . a

The District Court. interpreted the descriptions of

the land in ‘the’ two sections. covered by the Union-Texas

Gulf lease according to the‘ construction placed on the

description by La-Terre and Placid.

The Court of. Appeal reversed the District Court’s he

judgment and, in its construction of the description in ~

_ the lease contract, found that the parties to the’ lease

-contract intended that 600 acres of land in the two sec-

tions would be covered by the lease; and’ intended that

the boundary. between the two sections would be the 1831

Foster and Walker range line. In other words, the Court

found ‘from. all the evidence that La-Terre did not intend

-to-sell, and Union and Texas Gulf did: not intend to buy,

an “overlap” or the same land twice..

: The finding ‘of fact that 600 acres in the two

_ sections were covered by the lease was based on the Court’s

determination that the selection: instrument description, —

North ° 300 acres of tion 13 and North 400 acres of

Section 110, was a “definite” description, that “The

acreage cannot be ignored,” and that the description “is

perfectly understandable, nothing ambiguous per se, it

is couched in simple language and is not a weak description

but’a strong one and there would be no problem whatso-

ever for a surveyor to locate the land ‘therein déscribetl

on the ground if Section 13, Township 20 South, Range

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8

ae : 17 East and Section 110, Township 20 South, Range ‘18

’ Kast had no overlap lines, but one range line which served

‘as a common boundary between them,” (178 So.2d at pp.

~ 401, 402).‘7> The Court considered, but rejected, peti-

402) vec ; a 7 he

Peis 5

’ tioners’ factual ‘contention that Union, at the date of the

selection, had knowledge of the-overlap “and: ‘therefore

’ they knew or are.charged wth knowledge that the land de-

scribed in Sections, 13 and 110 did not contain ‘600 acres

and they did not intend to select 600 acres. , (178. So.2d - /

at p, 899) y

Because it ““would-not settle in any manner the. -.

3 conflict now before the court,” the Court also disregarded —

surveyors’ testimony that “they would accept the bound-

aries of Sections 13 and 110 as surveyed and approved

by government surveyors which would include the accep-

tance of the overlapping surveys ¢ of Sections 13 and 110. —

and wou placing the same Jand within the overlap

in both Section 13 and: Section 110, ” (178 So.2d at p.

Wes

Then the Court igniis deduced from the evidence .

that a boundary between Sections 18 and 110 had to be

located onthe ground before the 600 acres acres (and, for that—-—

- matter, the boundary, between the Union-Texas Gulf lease

= the Placid Jle3se) could be so located, as follows:

. Nothing is accomplished which would result in

aes to the question posed in this case by ac-

ee

(7) “Appendix B of the Petition, pp. 35b, 36b.

(8) Appendix B of the Petition, p. 29b..

(9), Appendix B of the Petition, p. 37b.

-

° |

ie

, ‘aati: Beittini 18. and Section 110 as. containing °

acreage common’ to’ both but treating the common

acreage as if it were only eontained in oue of the

sections when it was surveyed and then the other

— it was surveyed. ” (178 So.2d at p. 400) «109

* & &

. A decision must. be reached which fixes the lo- ©

cation of the east boundary, or range line, of Town-

ship’ 20 South, Range 17 East and of Township 20 |

South, Range 18 East, this range line -to be. the

* common boundary between these two ranges. in

ey 20. It.is only ther that the land leased

to Union can be definitely located, thus establishing |

the south boundary which in turn will identify and .

locate on the ground the lands~leased ‘to Placid.” a

(178 So.2d at pp. 406, 407) «1»

‘Buttreasing’ the Court’s: decision on this sit. was

_ the testimony of a licensed Louisiana Civil Engineer, to

the effect that no one can locate the land described, in the -

lease until the Court determined the boundary separating ;

a the two sections (178 So.2d. at p. 403) ,(12) =

The Court’s finding, that. the parties. to the con-

____traet-intended that the boundary betw een the two sections

would be the Foster and Walker range line, was based on :

its presumption that the parties intended to locate: on

© the ground a boundary between the two sections which —

~- would yield 600 acres in the- two sections and which

boundary the Court -was of the opinion. would be control- ,

: (10) Appendix B of the Petition, pp. 37b, 38b.

» (ily Appendix B- of the Petition, p. 46b. .

2) eames B of the Petition, pp. 38b, 39b.

&

10

3 “ring in the absence’ of such ‘an agreement. From this, So

' the Court found that the Foster and Walker ragge line,

‘s being the one first established. and approved, would ac-

alr complish both purposes.

The Court of Appeal did not onder any: -resiirvey

‘or revise or remake any U. 8. Survey, but, as between

_ conflicting surveys, simply “determined, the v. S. — 2,

which was. applicable to the. title dispute. | a

: “Therefore, the. Cilia: of Appeal ordered ‘that ‘the |

"600 acres be loca ed. ori the ground in accordance with

ae the plat reproduced in/its opinion (£78 So.2d at p. 411), (13)

_ As incidental ° relief, it further ordered that Union and

“Texas Gulf be recognized as owners of a well drilled ae

this 600 acres’ and that Placid account and remit to the.

owners 1 for all oil, gas and other minerals produced there- } i

After an application for ‘sbiaiine was denjéd by

| the Court of Appeal, the Louisiana Supreme Court ‘dénied

an application by La-Terre and Placid for certiorari, or

; writ of serene, with the following statement:

“According to the facts of the case, as heed to be

by the fo urt of Appeai, the result reached by the

_ Court is‘ correct.” (248 La. 447, 179 So.2d 482). (14)

(13) Appendix B of the Petition, p. 56b.

(14) Appendix B of the Petition, p. 59b.

a

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ee

—KRGUMENT

\s

THERE -IS. NO IMPORTANT QUESTION

OF FEDERAL LAW IN VOLVED. .

_. +, The narrow questions of fact presented here are

of sisi consequence to all except the parties to this liti-

’ gation, even though petitioners would attempt to convince

- this Court that such questions have broad implications and

. justify review. ie. '

In determining what the Court below actually did,

petitioners did not consider the questions presented by

the pleadings which were necessary to the Court’s decision’.

or the judgment which it rendered. To do so would have -

clearly shown the lack.of a federal question, as well as ~

the existence of an adequate and independent stafe ground.

” Fnatendl ‘petitioners erroneously . told this: Court —

that respondents “petitioned the Louisiana Court to upset

the Federal boundaries of the sections selected under the -

1948 lease and draw new boundaries.” 3 (Petition, p. 8) |

This is simply not correct. Respondents merely asked:

‘for a declaration that “600 acres of land” in the two

- sections were “covered and affected by the-oil, gas and

mineral lease” and that the 600 acres “be located on the

. ground.” Nowhere have respondents “petitioned ‘to upset -

‘boundaries or draw new boundaries, and a conclusion to

the contrary is ill-founded.

Petitioners erroneously charge the Court of Appeal

“with rendering a judgment which “upset the Federal

Be

¢

ee boundaries of both townships” and which “« ‘ordered, ye

. judged and decreed’ a new boundary line in accordance with . |

what it conceived to be the Old Foster and Walker survey—

and held that Union and Texas Gulf had the right to the oil

royalties from Placid’s well B-1.” Further, they charge that -

the purpose and effect of the judgment was to“establish ‘the -

~ legal bounds of the two sections involved.’ ” (Petition, pp.

9, 10).. The unambiguous judgment can not be g0 inter-

preted.. The Court held that Union and Texas. Gulf had

_ aright to all oil, gas, and other minerals (and not just oil

royalties produced from the B-2 and not the B-1 ) well.

The judgment also decreed that the land in'the two sections

described in'and covered by. the lease “He located. on the

ground” ‘in accordance witha certain plat so as to con-

tain 600 acres (178 S0.2d at pp. 410-412).“'=) Such dis-.

_ tortions-of the judgment by petitioners cannot. be relied

upon to throw on this Court a so-called federal question.

Petitioners would have this Court ignore the judgment of -

: the Court: below, but this Court’s “power is to correct

wrong judgments, not to revise opinions.”. Herb v. Pitcairn,

© 824. US. 117, 125-6 (1944).

+ an apparent attempt. to impress this Court with

: : the importance of this case as affecting matters beyond

those here involved, petitioners went far beyond the record.

in stating that Placid “brought in three valuable wells,

including well B-1, at a depth of over 15,000 feet, and’

at .@ total cost of over $1, 000, 000” ( Petition, p. 8); and

: that, “we have also examined the a Tobin survey

(is) Appendix B of the Petition, pp. 55b-58b.

are

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Be Seen eine

/ Nee

services used by the oil and gas “industry tecitalonk

southern Louisiana and have identified almost three dozen

areas of overlaps or other incongruities in the Gulf Coast a

__. area alone which could from all appéarances’ generate .

private litigation to ‘correct’-old Federal boundaries.”

(Petition, pp. 14, 15). Such factors, even. if ‘supported by

» evidence, are not sufficient by themselves to justify re-.

view by this Court. |

Petitioners also read into nea v. Powell, 128

U.S. 691 (1888), certain determinations which were: ‘not

made in that: case. and suggest that it decided a ‘federal

- question and “upheld” the same approved” survey which, —

petitioners charge, the Court of Appeal “held “ ‘was un-

authorized. and legally without any effec ... and ‘erro-

"neous and illegal.’” (Petition, pp. 6, 7, 9, 11 13). ‘In the’

first place, in that case, a “Louisiana State Court” never

attempted to “upset the official Connelly survey” and ;

“redraw the boundaries of 17 to conform with the adjacent. -

Gorlinski boundary of 18,” nor did such a court appoint -

“a court surveyor for the purpose.” (Petition, pp. 6, 7)...

The case, although originally brought in a Louisiana State

| Court, was removed to and kept by a federal district court

| on grounds of diversity of citizenship, and this Court os

‘had it on appeal from a decision of that Court. .A surveyor

= appointed ‘by the Court proceeded to run a.line which he

considered tlie proper boundary between the lands in dis-

pute and recommended its adoption to the Court “as sub-

' stantially such a line as would have been rin had the -

whole township been resurveyed at the time when Deputy-

Surveyor Gorlinski was resurveying the —? town-*

aM

ip ” This case was placed on the equity side of the

~ docket, because this boundary would have the effect of

ejecting Cragin from “the rich ridges along the bayous

‘tow in the possession of the latter.” This Court stated -.

that this brought within the Court’s “equitable cogni-

zance the essential rights of the parties, unaffected by

- the special limitations governing the action of boundary,”

and the case was tried in equity. The district court

_ adopted the boundary so’ run and Cragin appealed to

this Gourt. This Court reversed and: simply held that

Powell either.did not intend to get Cragin’s land or

was tobe considered as a man watching for the accidental -

. mistakes of others’ and preparing to take advantage of

them, saying, “An advantage thus obtained, a court of

_ equity will not readily enforce.” . Therefore, language.

in the case to the effect that generally the land office,

‘and not the court, should supervise and carry out govern-.

‘mental surveys is obiter dictum. Even if this general

statement of the law applied to this case, which is denied,

this Court was cayeful to point out that it was “subject

to necessary and decidéi limitations” and proceeded to

discuss - such limitations: . Therefore; contrary to peti-

tioners’ assertions, this Court did not approve the Gorlinski

survey in Cragin v. Powell. at ‘9

As the judgment of .the Court below was. based

upon an analysis of the particular findings of fact. in-

volved, and upon the construction of the. particular con-

‘tracts involved: solely between private parties to the con-

tract, this Court should not exert its jurisdiction merely

to review the decision. “We do not grant a certiorari to

é

15.

review evidence and discuss specific facts.” United States

_ v. Johnston, 268 U.S. 220, 227 (1924). See also: Black v.

?

¢

Cutter Laboratories, 351 U.S, 292, 299 (1956).

La-Terre “a Placid refer to seven statutes printed

cin n Appendix A of the. Petition as being involved, but they

fail td show how the statutes are ever drawn into question

in the casé. Even so, it is not enough to show that peti-:

tioners’ claim is dependent on an act of Congress or that.

the claim has its origin in a patent of the United’ States .

or that the land was described by governmental subdi-

. . Visions. “ Petitioners must prove to this Court’s satisfac-

. 4

tion that “the suit is one which really and substantially

involves a: dispute or controversy as to a right which de-

/, pends upon the construction or effect of the Constitution,

» or some law or treaty of the United States; that the suit,

in whole or in part, arose out of ‘such controversy, or

that a decision of the case depended upon such construc-

tion.” Huckins v. Duval County, Florida, 286 F. 2d 46.

_ (5th Cir. 1960), cert den. 366 U.S. 945; Kirklin v. Ellerbe,

(278 F..168 (Sth Cir. 1922). No such proof has even been

offered. |

This Court denied certiorari in Huckins v. Duval

County, Florida, supra. There, the Court held that there

existed no federal: question, although, conceding that the

answer to the question concerning one of conflicting claims

which resulted from two overlapping governmental sur-.

veys as to the boundaries of land embraced within a —

Spanish grant. may involve “a construction of the grant,

a determination of the consequences of the proceedings

held and the action taken by the Commissioners, ‘a decision

16

‘as to the validity of the patent to the State of Florida, or - -

- am ascertaining of the effect of the Government surveys.”

here. See also Almonester v. Kenton, 50 U.S. 1 (1850).

Huckins v. Duval County, Florida, 286 F.2d 46, at p. 49

(Emphasis added). Thus, even if there were other ques-

tions besides interpretation of the Union-Texas Gulf lease

in this case, the Hucking case would still be conclusive that

no federal question is presented in this case. |

This Court also refused a writ in Lanfear v. Hunley,

judgment determining the location of the eastern boundary

of a Spanish grant as surveyed by a U. S. Deputy Sur-

veyor in 1854, which overlapped land occupied and claim-

ed by defendant by right of preemption. The Court said |

the controversy turned wholly upon the question of locality

of the boundary, and, going on, made the following state-

ment: , : ts 7

“, .. This court has repeatedly held, that it does not |

warrant the review of an adjudication upon a mere ~

question of boundary. The fact that the land to.

which the boundary relates is held by a title de

rived from ah act of Congress does not change-the

result. If the title be admitted as recognized by

the act, its location upon the land is a subject wholly »

within the cognizance of the state tribunals, and

it is not within the power of this court to revise ©

their action.” Lanfear v. Hunley, 71 U.S. 325, at

p. 326. ;

The Lanfear case is similar in many respects to

this case-and establishes the lack of a federal question

71 US. 325 (1866), to review a Louisiana Supreme Court -

~

. ®

17

\ ea

The case of Graham v. Gill, 223 U.S. 64% (1911), cited

by petitioners, involved the requirements of a federal

Statute “as to the mode of surveying public lands” and,

therefore, has no application here. As the Court of Appeal |

said in this case below, “We are not confronted with a.

surveying problem, but a judicial one.” 17 8 So.2d at pp. 402,

403. No question was presented i in this case in any of the

courts below concerning the identification of the precise’ —

location of the three range lines. All-parties agreed as to

the location of the three range lines located according to the

plat and field notes of the surveyors involved. On the

other hand, in the Gill case, the question | presented in-

volved the interpretation of field notes of government sur-

_ Veyors and other evidence in order to identify the precise

location of the tract in dispute according to the surveys.” .

That was the ‘sole question -presented. In the. Gill case,

‘the government sold plaintiffs an island: (lot 1, section 8),

which was surveyed by continuing a survey made from

land lying east thereof, -and sold defendant an island.

(lot 2, section 17 ), which was surveyed by continuing a

‘survey. made from lands lying west of thé island. By

using the field notes of the respective surveys, it appeared

that the island in defendant’s possession was the one —

sold. to plaintiff. Defendant sought .to introduce at the

-trial evidence of the physical location of his tract with

reference to other land in the vicinity, shown’ on the plat

of survey. Plaintiffs objected to the: admission of all

evidence bearing upon the location of the tract other than

the field notes of the survey under: which they claimed,

*being the best and only evidence. The trial court overruled

the objection and held that defendant’s evidence con-

N

clusively established that the tract in possession of de-

_fendant was lot 2, section 17, as delineated on the plat,

according to which the land was patented, to defendant, -

which was affirmed by the Florida Supreme Court. This

Court affirmed the trial court, but,.in doing so, stated

that the trial court’s ruling invQlved a federal question.

Furthermore, the Gill case involved a. question of what

the government sold the parties, and not, as here; what

land private parties intended to léase by their private

contenes.

II

THE JUDGMENT OF THE STATE COURT WAS BASED ON |

AN ADEQUATE AND INDEPENDENT STATE GROUND.

. The State Court judgment is, in fact, based upon

a non-federal' ground which is adequate .to support the

judgment without consideration of .a federal question.

The State Court merely construed and interpreted private

contracts, being the lease and selection instrument be-

tween La-Terre and Union, and recognized a boundary

between Sections 13 and 110, which the court: found was

_ one which the parties intended to recognize by their con-

tracts. The judgment based thereon could have had no

other effect. The Court of Appeal did not pass on, or

even consider, any federal questions, no federal statutes

having been referred to and numerous. state court author-

ities having been relied upon for its Opinion.

Therefore, acai as no federal questions were

presented to or decided by the court below, this Court

~

s

pnt AE a in RE OE a I -

has no jurisdiction. But even if it were otherwise, this

Court will not pass on federal questions “where it appears’

that the judgment rests on adequate state grounds.”

Black v. Cutter Laboratories, supra. Construction of a

local contract by a state court under local law certainly

presents an independent state ground, Black ». Cutter

Laboratories, supra. .

_.. The court below did not “void” or even purport to

void any Federal Township boundaries, or “fix” new ones,

contrary to petitioners’ assertions. The three range lines

which were surveyed by the Federal Government still |

exist on the ground today in the place where all parties

to this suit have agreed, by their surveyors’ testimony,

_ they are located. One or perhaps all of them may be used in _—

_the future by other parties in their contracts affecting

land in the area, and, as here, a court may be presented

in the future with the construction of such a’ contract to

_ determine which range line the parties intended to recog-

nize as a boundary in their descriptions. It would only

be natural if this occurred. 9

This Coiart. cetuaall te: cieeah' a sott axis

:Lousiana Supreme Court decision in White v. Leovy, 174 :

U.S. 91 (1899), in which the controversy concerned the

location of certain swamp and overflowed lands according

to “an official plat or survey made by G. F. Connelly in

1836.” Plaintiff claimed the land by an 1890 patent.

Defendant claimed the land by an 1893 patent. Plaintiff

claimed in the state court that the gévernmental survey

referred to in his patent could not “ve questioned or im-

S|

20

be peached by the defendant, and this court is wholly without

jurisdiction to determine whether same is or not erroneous, .

and that the said patent cannot be questioned or impeached

by: the defendant for fraud or “error.” ‘The state court .

determined the question adversely to plaintiff, based

“* entirely on a construction of the land descriptions in the

. patents. In denying a review, this Court stated as fol-

lows: _- ra at tas

“Tt is manifest no federal question, was passed on by .

the court. Its decision was put upon an indepen-

‘- dent ground, involving no federal question, and of

itself sufficient to support the judgment. It merely

determined the extent of the grant to the: state,

and, , interpreting the contending patents as conyey-.

ances, decided that the lands described in that of .

plaintiff.did not embrace the lands in controversy,

and that the lands described in that of defendant

did embrace‘them. This was but the interpreta-.

_. tion of written instruments, and, if it were even

apparent ‘to us to be wrong, — which we cannot

say, — we should nevertheless be without soe

to review it.”

The White case does not differ in any material respect

from this case and should set at rest the matter of ‘an

adequate and iridependent state ground. See, also, Clark

on Surveying and Boundaries (8rd ed. 1959), § 38 on.

“Boundaries, a question of state law,” pages 46, 47, to.

the effect that, after the federal government disposed of

the public domain, the questions with respect to the matter

of boundaries established by government surveys are strict-

| . ly a matter of state law.

~~

21 .

a ” TIT

PETITIONERS FAILED TO RAISE. AND PRESERVE

A FEDERAL QUESTION IN THE STATE. COURTS. |

The jurisdictional requirement relative to the rais-

Ing of. a substantial tial federal q question under subsection

(3). of §-1257 i is that the validity of a statute must have °

—~peen “drawn in question,” or a federal title, right, privi-

a or immunity. must have been “specially set up or

claimed.” ‘This petitioners have not done..

‘Furthermore, the- federal dint and the grounds

_ therefor must be brought to the state court’s attention with )

fair precision. As stated by this Court in Oxley Stave

Co. v. ‘Butler County, 166 U.S. 648, 655 (1897), “the

jurisdiction of this court to re-examine the final judgment

of a state court cannot arise from mere inference, but

only from averments so distinct and positive as to place it

beyond question that the party bringing a case here

, from’ such court intended to assert a federal right. ” )

Nowhere in the record of this case has this requirement

been met.

La-Terre and Placid have a to this Court, er-

roneously, we believe, as indicated hereinabove, that Union

and Texas Gulf “petitioned The Louisiana Court to upset .

the Federal boundaries” and “draw new boundaries.”

, Assuming, arguendo, that such a «petition was made or

_ that such was the effect of ‘their petition, La-Terre and .

_ Placid did not set up or plead as.a special and affirmative

_ defense: in their answer that’ such action would violate

federal law, as oe are ae at this late stage of ‘the

fe .

— 22

proceedings. By wines: a 7 of inebiniiahisionitg

of a statute in Louisiana is a special and affirmative de-

fense which must be specially pleaded, and. it cannot be

_ urged for the first time in an appellate court. Long v. .

Northeast Soil Conservation District of Louisiana, 226

La. 824, 77 So. 2d 408 (1955). This Court recognizes that.

a state “may attach reasonable limitations to the assertion

of federal constitutional rights” and such limitations must

be respeeted. Michel v. Louisiana, 350 U.S. 91, 97 (1955).

Thus, it is our contention that petitioners’ failure to follow

/state procedure is fatal to théir chance for review by this

Court. In.re Lampkin, 355 U.S. 59 (1957) ; Ferguson v.

Georgia, 365 U.S. 570, 572. —.

Inadequate to raise and preserve a federal questiori*

‘was the oral argument. made. by counsel for petitioners .

at the trial of this case regarding Cragin v, Powell, supra,

upon which petitioners rely. (Petition, p. 10, footnote 4)

Live Oak Water Users’. Ass’n v. Railroad Commission,

269 U. S. 854, 857-358 (1925) ; Lymeh v. New <n ex rel.

Pierson, 293 US. of, 54. (1984). B .

Petitioners also rely on general statements made _

on pages 11-through 17 of their Brief on Appeal.to the

Court of Appeal, regarding state court authorities, Cragin

v. Powell, supra, and a surveyor’s manual (Petition p.

10, footnote 4), but without reference to any federal

- statutes. This. clearly is-insufficient, even if they had

properly raised a federal question in ‘the trial court,

which they did not. This Court has consistently held that

the federal: question must be raised on the record, and

Ss

7

3

23 a

the briefs are no part of the record for that purpose. ‘.

E.g., Lynch v. New York’ ex rel. Pierson, supra; Live Oak

Water. Users’ Ass’n'v. Railroad Commission, supra; awe.

ing ». Illinois, ¥96 U.S. 78, 84 (1904).” Rect Ts @&

As the argument in a brief does not supply the

deficiency of not raising the federal question in the actual

- Yecord, and since the guiding principle of law is that the

state court must have had an opportunity to’ pass on the

federal question, it is too late to raise that question for

_ the first time in a petition for certiorari. U. §.. ‘Supreme

Court Rule 23. And see generally, in support of the text,

White River Lumber Co. v. Arkansas, 279 U.S. 692, 699-

‘ 700 (1928); Whitney v. California, 274 U.S. 357, 362-

a - (1926) ; Thomas v. Iowa, 209 U.S. 258 (1907).

Again, petitioners ‘rely on a vague. statement in

their application to the Louisiana Supreme Court for a writ

of certiorari, or review, which: was denied without an

\ _ opinion, to establish that they raised a federal question.

"Aven if, in their Louisiana Supreme Court applications,

they had “drawn into question” the validity of a statute |

or “specifically. set up or claimed” a federal title, right,

privilege or immunity, which they did not.do, this would be

insufficient unless ‘that Court had actually entertained

the petition and expressly decided the question. Radio Sta-

tion WOW v. Johnson, 326 U.S. 120, 128 (1945) ; Hanson

v. Defiekla, 357 U.S. 235, 243-244 (1958).

Thus, petitioners have waived any federal issue

and there is no basis for the assertion of this Court's jur-

isdiction.

ro.

Sg apse ge caer graeme gone para ats:

24

CONCLUSION .

Since we believe this Court will not reach the merits

of this case and will find it has no jurisdiction to review

the matter, no discussion of. the well considered decision

below, in addition to what has already been presented in

- stating the case, appears appropriate. —

For the foregoing reasons, it is respectfully sub-

_. mitted that the petition for a writ of certiorari should be

denied. |

Respectfully submitted,,

- ELWARD WRIGHT -

* 254 Barrow Street

‘ Houma, Louisiana

J. MORT:- WALKER, JR.

225 Baronne Street

New Orleans, Louisiana

JOHN T. GUYTON

RAY A. BARLOW

867 Texas Eastern Building

Shreveport, Louisiana

Attorneys for Respondents.

Of Counsel:

Ellender, Wright & Wurzlow,

Houma, Louisiana.

Jones, Walker; Waechter, |

Poitevent; Carrere & Denegre, 7 !

_ New Orleans, Louisiana. A SR

Hargrove, Guyton, Van Hook and Ramey,

Shreveport, Louisiana. to

oo