Motion to Dimiss and Supporting Brief Filed by Appellee the Texas Company — Dunn v. County of Los Angeles

6

| > et

IBRARY

Fa Supreme Cour, UF

FILED.

MAY 22 rey

IN THE.

| Supe Court of the Mirted Mates

OcToBER TERM, 1957

No. 952 -

"Myre May a ALVIN PD. Dunn, and CITIZENS

NATIONAL TRUST AND SaAvINGS

BANK: or Los

ANGELES, Executors of the Estate of A. M. Duny,

Deceased ; a and MyrtLe M. Dunn, A or |

¥,

MOTION TO DISMISS

COUNTY OF Los ANGELES, a Body Corporate = Politic, .

: “and THE TEXAs CoMPANy, a enperatign, Appellees. eee

- SUPPORTING BRIEF, FILED BY APPELLEE.

"THE TEXAS COMPANY

Of Counsel: i

B. Hows, Hin, JR.

WILLIAM -E.. Ro.Low

J. A. TUCKER

R. K. Barrows

Mav 1958

_ Roger J: WHITEFORD

JOHN J. WILSON | |

815.15th Street, N. Ww.

Washington 5, D. C.

Oscak JOHN Dorw IN

Ray A. PITTMAN, JR.

135 East 42nd-Street

New York, New York

Attorneys for A ppellee,

The Teras Company,

- - INDEX

: , ot mS oes ee Os Sg Page

i te NNR oes ith acvices ¥:

‘Brier IN Svprorr OF Motiox TO Dismiss Sia ekwis 3

| Srarement OF THE CASE ..... ee vet eeeeee i

_LNo- Siete. ‘FEDERAL Gianni Is PRe-

TI. THR Lower Court JUDGMENT REsTs oX* AN “Ape. oe

QUATE new FeperaL Bases ......, bp inks ses 7

Concision a SR Aa A ‘ ced A 10

TABLE OF CASES _

Asbury. Hospital v. Cass County (1945) 396 U. s. 207,

Automatic Radio Mfg. Co. v. Hazeltine Research (1

Cir. 1949) 176 F. 2d° 799, aff'd. (1950) 339 U.S.

- = .° |e see i

Black v. Cutter” Laboratories (1956) 351 U. S. 292, 100 :

CS ER eer aera ——

Board of. Frustees of National Training School’ v. 0. D.

" Wilson=Co., Ine. (C.A. D.C. 1953) 133° F. 4d 399;

SOE ee I NL, TR So i eb oye cae he diese ae

‘_. Brown v. Cana (1951) 105 C.A. 2d 1, 232 P. 2d 868°. 6

_ & City of Long Beaeh v. Marshalf (1938) 11 C. 2d 609, ,

| pk eee Se 6

— City of Oakland v: Schenck (1925) 197 Ca‘. 496, 241 P.. |

IR te atitone Sages ema pre wera ee Gr rere re err 6

» City-of Santa ae v. Davis. (1904) 142 Cal. 669,

OS I ree va 40k 66840 kk oe eK Rana 8A 6.

Comrs, of Laramie Co. v. Comrs. of Albany Co. (1876). :

+ Ee es et I og ex's bcos bx paeeecncss 7

Cooper v: Selig (1920) 48 Cal. App. 228, 191 P. 983 ..° 6

Cramer v. Wilson (1904) 195 U. S PAOR, 49. Lied. 256 .: 7

Dunn v. County of Los Angeles, Calif. Dist. (t. of App.

155 ACA, 885, BO OM I cr ven test heetects -7,8,9

i

il | Index Continued

: | Page

Hale y. Lewis (1901) 181 U.S. 473, 45 Leedg 959... 10

Hartley Pen Co. v. Lindy Pen Co, (S.D. Cal. 1954) 16

F.R.D, er ee Ve ire eee mon ie - §

Herb y. Piteairn (1945) 304 U. S. 117, 89 Led. 789 . i)

Highland Realty Co. vy, San. Rafael (1956) 46 ¢ Cal. ad

Oe 8 ee BS eerreererer Teer Teter et ere eh

Meigs v. Pinkham (1910) 159 Cal. 104, 112 P.8 &

Suydam y. Williamson (1861) 65 U.S 427, 16 I; ae 742° 6

Taylor v. Avila (1917) 175 Cal. 208, 165 P. O33» icthecs e

United States v. Crosby (1812) 11 U.S. 115, 3 L.ed. 287 6

United States v. Fox (187 7) 94 U.S. 31a », 24 Led. 192 6°

Wood v. Chesborough (1913) 228 U.S. 672, 97 Lcd.

1019 ea ae a a oe eee ar ar nr ae Pe ere te

7 STATUTES AND RULES af

’ ¢ ao i 7

Code of - ivil P rocedure, California, Seetion #48 ..... 4

Code of Civil Procedure, ¢ ‘alifornia, Seetign da 05 Pe

Code of Civil Procedure, California, Se ction a

Rule 16, Revised Rules of Supre me C ourt of the |

U nited er rk nr roe eee ees ]

ty ul

IN THE ,

‘Supreme Cowt of the United States

OcToBER TERM, 1957 |

No. 952

Myrtie. May Dunxyx, Atvixn D. Deny, and Citizens

NATIONAL TRUST AND Savincs Bank or Los

_ ANGELES, Executors of the Estate of A. M. Duny,

“Dec eased ; and Myrti. E M. DUNN, Appellants,

: vz. . |

CouNtTY OF LOS ANGELES, a Body Corporate and Politic,

and THE TEXAS COMPANY, a ‘Corporation, Appellees,

MOTION TO DISMISS

4 The Texas Company, aneappellee herein, pursuant

a ta Rule? I of the Revis sed Rules of the Supre me Court

. of the United States, moves the Court to enter an order

dismissing the appeal of appe aE ints herei an oon the

crenmads that :

The ap peal (hoes het present A substantial

| te a ab question,

2 The lower comrt’s judgment rests on ages,

quate non federal’ hases

; —

4

2.

Said motion will. be made upon the record in: the

above-entitled cause, together with the brief included

herewith. - ,

| Roger J. WHITEFORD

JOHN J. Withox

815 15th Street, N. W.

Washington 5, D. C.

OscaR JOHN Dorwin

nf | — Ray A. PITTMAN, JR.

135 East 42nd Street-

New York, New York |

Attorneys for Appellee,

| | The Teas Company

Of Counsel: |

B. Howeiui Hits, Jr.

WiLuiaM FE. Ro_tow

J. A. TUCKER.

R. K. Barrows

* May 1958

.

Q Paes, 3 my,

Tat 15°) isle Di Sot

Se een tat)

ene ee riba Sat igi gh gt te

AB Ps Ms Prec SO MON Boe ue SAR DR BET

BRIEF, IN SUPPORT OF MOTION TO DISMISS

, STATEMENT OF THE CASE

This action was commenced by the filing of a com-

plaint in the Superior Court of the State of California,

in and. for the County of Los Angeles, on August 19,

1955. The complaint sought (1) declaratory relief,

(2) to quiet title, (3:) damages for inverse condemna-

tion, and (4) an accounting. The demurrer of appel-

lee, County of ‘Los Angeles, was sustained: without

leave to amend as to the second, third and fourth tauses

of action. (it. 54-85) After answers by the County of

Los, Angeles and The Texas Company, the motion of

q the County, for judgment on the pleadings and for a

summary. judgment and the motion of The Texas Com-

pany for ‘judgment on the. pleadings, were granted.

(R. 84-85} The judgment of the Supertor Court was

‘affirmed by the District Court of Appeal, State of Cali-

fornia, Second Appellate District, 155 A.C.A. 885, 318.

P. 2d 795. Petitions for rehearing by the District

Court of Appeal and for a hearing in the Supreme

Court of the State of California were denied.

The allegations of the complaint are substantially

set forth in the opinion of the District Court of Appeal.

which has been attached as an appendix to Appellants’

Statement as to Jurisdiction. |

The series of events alleged to have oceurred during

.. the past twenty-one vears may be summarized as

follows:

‘About 1937 the County of Los Ange les, acting,

through its Board of Supervisors, determined to--es-

tablish a prison farm and, in selecting the location,

emploved appraisers to appraise appellants’ 1400 acre

4

property near Newhall, California. Negotiations for

’ appellants’ property included discussions of both con-

demnation and the retention of mineral rights by the

appellants. However, no condemnation action was in- §

stitufed and no agreement for retention of mineral |

rights was*reached. At the conclusion,of negotiations,

the appellants entered into a five year lease and option

agreement with the County of Los Angeles, which ex.

pressly provided for purchase of the property by the

County for the sum of $148,000 at anv time-during the

five vear term of the lease. (R. 5-8) Thereafter, the

County elected to exercise ‘its option and the: appel-

lants,.on July 7, 1939, executed a grant deed whiclr

was without, and was then known by appellants to be

‘without, reservation of mineral rights but whieh in-

cluded fifteen other express reservations. (R. 70-75)

The County accepted the deed by, order adopted July

_11, 1989, entered in Minute Book 252 of the Minutes

_ of the Board of Supervisors, and paid appellants the

purehase price (R. 69); and the deed was recorded

July 20, 1939. (R76) The County established and

aperated the property thereafter and to date as Way-

si Honor Rancho, a prison farm. | 3

Some eleven vears after the appellants: sold. the

property to the County, namely, in April 1950, the

County issued an oil lease authorizing The Texas Com-

pany as lessee to explore, drill for, and produce oil

from the property. €R. 39) Within a few week-

thereafter, namely, on June 7, 1950, The Texas Com

pany obtained an oil lease from the Dunns, appellants

herein, covering the Dituns’ mineral rights in a 156

foot strip of land which was specifically excepted from

the 1939 deed é0 the County, (CR. 37-47) The Dunne’

lease to-The Texas Compuiny expressly noted the ex-

ixtenee of the lease from the County and relied uper -

y

that lease and conthauing operations under it in estab-

lishing the royalties to be paid to the Dunns in the

event oil was discovered. (RR. 39) 7

After oil tenses were issued hy the County and the

Dunns, respectively, to The Texas Company in April.

and June 1950, The Texas Company began drilling

-and was successful in tinding and producing: oil.

Rovalties have been paid regul rly to the County and

to the Dunns.

; a a * ,

NO SUBSTANTIAL FEDERAL QUESTION IS PRESENTED

Appellants’ Statement as to Jurisdiction is based.

almost entirely upon. allegations as to the Countv’s

authority to acquire land by eminent domain. GR-8-97

Ifowever, the complaint shows on its face that the’

County acquired the property by purchase, not by

ondemnatitit® “What might have been acquired bv

exercise of tie right of eminent domain is entirely

speculative.

“This. Court is without power to give advisory

opinions, It will net decide constitutional issues

which are hypothetical, or in advance of the neces-

sitv for dec dding them, or without reference to the -

manner in which the statute, whose constitutional

validity is drawn in question, is to he applied.

a Alabama State Federation of Lubor ve MeA Idory,

& No. O88, October Term, 1044, Weedeled June V1,

Mo, [325 U.S. 4.50, AONE, RO Led. 1725. 17

VSO) and Cases Seited’ | Ashary Hospital vo Cass’.

( ounty (19455 226 US) 207, 2135 90. Led. 6, 13.

The Vth Amendment to the United States Constitu

hon Was never mentioned danati aftercappellants’ oy Tore

ie brief befor i‘ ‘the [dix triet Court of Ay presat~ hicrel breeny

Hled. Karher ‘ohh que references to pust eomipensda

Se. .

: 6

tion’’ and ‘“‘publie use”? were with respect to the theo-

retical powers of a governmental agency to take prop-

erty in an’‘eminent domain proceeding, an inquiry not

applicable to the facts alleged by the comphaint.

The California courts were called. upon to decide

the validity of the conveyance to appellee, Los Angeles

: County.

Appellants ‘asserted in. the California eourts that:

appellee, County of Los Angeles, only took an ease--

.ment under the deed.’. The question of the interest.

conveyed by appellants to appellee, County of Los

Angeles, is solely a matter of state Jaw and does not

raise a federal question. Suydam v. WiUamson (18614

5 U.S. 427, 16 L. ed. 742: United Staves v. Fo. (1877)

94 U.S. 315, 320, 24 Lied. 192; United States v. Croshy

(1812) 11 U.S..115, 116, 3° Led. 287.

* Similarly, the right of the County of Los Angeles

to acquire and hold real property by fee simple or

otherwise ‘is derived from and dependent. upon the

State of California? and does not raise a federal ques-

‘tein California law, as the lower court. correctly. decided,

appellants” grant deed to the County of Los Angeles was a grant

of fee simple title. Section 1105 of the Code of Civil Proeedure.

California; Taulor vo Avila (1917) 175 Cal. 208. 165 P. 583. 4

fee tithe to property, under California law, ineludes oil rights

City of Long Beach vo Marshal (193s85 71.€% Pd 609, x? Pp. Pd 362

- Brown ¥. Copp (WU5T) 105 CLAD Bd 2 232 Po Pd S68, While net

relevant te the consideration @f the instant motion. appellants:

contention that a California governmental or ‘public ageney ean

take no greater tithe be purchase than it can’ by condemnation is

similarly without ment tinder California law, City of Oakland \

Nehonek (1925 V97 Cal 456 466. 242 PL 545; 549: Highland

Realty Co.v. Nan Rafal (W560) WW Cal 2d 669, 297 PO 2d WS

7 Under California law a county or municipality. is authorized

tooaequire fee simple tithe te realty. Caoper vi Nelli ( TH205 4s

Cal. App. 228; @€ifya af Santa Barhara vo Davis V004) 142 Cal

HHO 72, 76 PL 4AM

7

tion. Comrs. of Laramie Co. v. Comrs. of Albany Co.

(1876) 92 U.S. 307, 23 L.ed. 552.

Appellants further asserted before the. California

courts that they had been coercedginto exceuting the

lease and option to purchase by threats of the Countv’s

agent to institute ‘‘costly condemnation proceedings’’.*

Questions of fraud or duress surrounding the conv ev-

ance of real property do not raise a federal question.

Cramer v. Wilson (1904) 195 U.S. 408, 416, 49 I. ed. -

956. Furthermore, threat of civil suit is not duress,

~ even though there may he-noJegal right to-enforce the --—~

“atin. “Board of Trustees of National Training School.

v. O. D. Wilson Co., Ine. (C a 1).C. .1953) 133 F. 2d °

499, 77 U.S. App. D.C. 127; Automatic Radio Mfg. Co.

v. Hazeltine Research (1 Cir. 1949) 176 F. 2d 799, aff'd.

(1950) 339 U.S. 827, 94 L.ed. 1312.

It thus follows that no substantial fede ral question

ix presented to this Court. ‘

oer IT.

' THE LOWER COURT JUDGMENT RESTS ON ADEQUATE

NON-FEDERAL BASES

The decision of. the District Court of Appeal (1)

affirmed the Superior Court’s aetion sustaining the

County's demurrer to the second, third and = forrth

-causes of action on the grounds that they were barred

hv applicable ‘statutes of limitation and (2) held that

the request for declar&thry judgment was <imilan

harred,

“The complaint rr ges that the Dunns executed

the deed In July, W939, amd that oil was discov.

‘The District € eurtoof Apoeal property held that there had

wen ne frand or coercion (Appendix. Jarisdictional Statement,

[pr NVI, XXIV.) : ;

te

. 8 ;

ered by The Texas Company about August 22,

1950.. The action was commenced August 19, 1955,

which was more than 16 vears after the Dunns’

executed the deed, and about five vears after the

discovery of oil. If the action be regarded as one

to recover oi] rights (an interest in real property)

it is barred by Section 519 of the Code of Civil

Procedure (five years); if it be regarded as one

to recover for trespass upon or injury to real

property it is barred by said section 338, subdivi-

sion 2,. (three vears); if it is based on fraud or

mistake it is barred by said section 338, subdivi-

sion 4, t(three.xears). §(T)he nature of the right

sued upon and not the .fornr of action nor the

reHef demanded: deterinines the applicability of

the statute of limitations.”. (Maguire vo Hiherniir

S. d& L.oSoe., 23 Cal. 2d 719, 733 (146 BP. 2d 6753.

151 A.L.R. 1062).) *(T)he period of limitations

applicable to ordinary actions . 2. should be ap-

plied in like manner to actions for declaratory re-

lief? (Maguire vy. Hithernia S.-d 1. Soe., supra,

T34.)°° Appendix to Jurisdictional Statement. pp.

NX-NNXI1. . |

¥ * ¥ * ¥* * * J

'Tn Wade ve Bushy. 66 Cal. App. 2d Te 6192-2.

2d T54). it was said Cp. 702) that an action te set:

aside a deed upon the ground of nmdve inflnence

was voverned by the four-vear period ef limita.

tion preseribed in Seetion 34 ef the Code of Civil

Procedure. Tn the present cease the claim’ regard,

dng coercion was barred by said) seetion Np

pendix to Purisdictional Statement, poowyviv.

A mere disenssion by the District Court as te thn

validity of Catifernia’s Pndustrial Farm. Net, whieh

Ss x . - \ .

'Calfornia’s statutes af: limitations apply to both Jewat ane

ertpptarbedee wet betes Mharth "4 le » £4. ¢% Lindy Ps nN Ca tS }) ('s;]

Woe 16 PROD TAD Tos. citing anon others, Meigs vo Pinkhar

110-149 Cal. 104, 112 BL S38, S86 :

J

appellants contend is violative of the 14th Amend-

ment, is not suffic ‘lent to present a substantial feder .

question. Black vy. Cutter Laboratories (1956). 35

U.S. 292, 298, 100 L.ed. 1188, 1196. Where there is

adequate non-federat ground to support the judgment |

of the state court, there ean be no review by this Court.

Herb v. Pitcairn (1945) 324 U.S. 117, 125, 89 L.ed. 789,

794: Wood v. Chesborough (1913) 228 U.S. 672, 677,

' 57 Led. 1019, 1020.

‘And certainly the application of laches and the

statute of limitations. does not present a Federal

question.’? Wood v. Chesborough, supra, at 677.

Appellants have not claimed, nor can they in good

conscience claim that the above relied upon statfites of -

limitations were unreasonable time-wise.

Appellee, The Texas Company, in its motion for

‘judgment on the pleadings raised a defense of estoppel

based on the oi] lease issuéd to The Pexas Company by

the appellants on June 7, 19502 That lease recited the

fact of The Texas Comipany’s lease from Los Anveles.

County and, indeed, relied upon possible production

ander The Texas Company *s lease from Los -Angeles

County to establish rovalty payments due te the Dunns-

under their lease. The Districet’Court of Appeals prope

erly held that the appellants were estopped to claim as

against The Texas Company that the deed to the County

did not convey oil rights. (Appendix to Jurisdietiona!

Statement. po XXV.) Section 1962 of the Code of Civil

Procedure, California. establishes a conclusive pre-e

“A copy of the lease was attached to The Texas Company's

, dhswer and Was admitted as to die execution “and PeMUINE TASS

pursuant to section d45 of the Code of Chal Procedure, California

ane 10

sumption of estoppel. A decision by a state court based

upon estoppel does not present a reviewable federal

question. Hale v. Lewts (1901) 181 U.S. 473, 479-480,

__ 45 Led. 959, 962.

ee i CONCLUSION

It appears 4 froma the record not only that the feieval

question sought to be raised is hypothetical and non-

existent, but also that the case was decided below on

the separate, independent and non-federal_ bases of (1) .

the statute of limitations, (2) State-granted-rights to’

and for the County to acquire a fee simple in realty

by deed,.and (3) estoppel. There is no reason for the

“Court to consider or pass upon the appeal. It should

be dismissed.

Respectfully submitted,

~Rocer J. WHITEFORD

JOHN J. WILSON.

‘815 15th Street, N. W.

Washington 5, D: €.

OscaR JOHN Dorwin

Ray A. Pirrw an, Jr.

135 Kast 42nd Street

New York, New York

Aftorneys for Appeilec,

The Teras Company’

Of Counsel: a

<

Bb. Howrnn Winn, Ja.

Witniam EF. Rottow

J. A. TUCKER

R. K. BaRRows

Mav 1958

E

Certificate of Service = -— »

I, John J. Wilson, one of the attorneys of record

for The Texas Company, an appellee herein, and a

United States, do hereby certify that I have served the

foregoing. Motion to ‘Dismiss and. Supporting Brief,

Filed by Appellee, The Texas Company on counsel of

record by. mailing a copy thereof, proper air mail

postage prepaid, to each of the following:

1. Henry W. Robinson, Esquire

1060 Mills Tower - ;

San Francisco 4, California

Attorney for the Appellants:

+

2. Harold W. Kennedy, Esquire

*County Counsel %

Lloyd S. Davis, Esquire”

Deputy County Counsel

1100 Hall of Records

Los Angelés 12, California ‘

Attorneys for Appellee, County of Los Angeles

need at Washington, D. ©.. this 22nd day of

May, 1958.

st

member of the bar of the Supreme Court of the. ~