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carefully and elaborately tried, was held under consideration by the court for nearly two years, and the opinion of the court below is so full and satisfactory that we are content to affirm the decree upon that opinion contained in the record. We do not find that the opinion, which covers some 52 closely-printed pages in the record, has ever been published, as it well deserves to be, and no doubt will be.1 The questions were mainly questions of fact depending upon the evidence, and, while the findings upon the facts by the court below are not absolutely conclusive and binding upon this court, they are, in a case like this, very persuasive, and not to be disturbed except upon very satisfactory showing. Upon the coming in of the master's final report the case was argued before the circuit court, Judge Grosscup presiding, after Judge Dyer had, to the regret of all, retired from the bench. In that opinion Judge Grosscup says:

"Much of the argument of defendant and his counsel has been devoted to the proposition that the interlocutory decree heretofore entered by Judge Dyer was mistaken in fact in this: that the insurance company was not at the time then found in reality insolvent. It is claimed that events coming to consummation since the entry of that order disprove this finding. I do not feel at liberty to disregard that order, or to take up the question again as to whether the company was at the time insolvent, and have not pursued as carefully as if the question were before me de novo this specific inquiry."

It is proper to say that this court has considered that question, and finds no reason to disturb or question the correctness of the finding and conclusion of the court below upon that question. Although the assignments of error are numerous, being 121 in number, we have been unable to find any substantial error in the record which should suffice to affect the decree of the court. The cause was kept in the circuit court upon various motions and references until the final order was made by Judge Grosscup on February 28, 1899. upon the filing of which an appeal was taken by the defendant Harding, but the case was not heard in this court until the June session of 1900.

It may be proper to say that though WOODS, Circuit Judge, who participated in the hearing of the case, died in July, 1901, before this memorandum of opinion was prepared, he concurred in the decision. The decree of the circuit court is affirmed.

1 Since published in 113 Fed. 307.

(113 Fed. 433.)

HIGGINS OIL & FUEL CO. et al. v. SNOW et al.

(Circuit Court of Appeals, Fifth Circuit.

No. 1,114.

February 25, 1902.)

1. FEDERAL COURTS-FOLLOWING DECISIONS OF STATE COURTS-LIMITATION AND LACHES.

A federal court, although sitting in equity, may follow the rule of decision of the state courts upon the questions of limitation and laches.1 2. EQUITY-LACHES-SUIT BASED ON LEGAL TITLE.

Under the rule of decision in Texas, where the title of a complainant to lands, upon which he bases his right to relief in equity, is a legal one, capable of being established at law, the doctrine of laches and stale claim does not apply, but his rights are barred only by adverse possession; and on general principles equity will follow the law on such question, where the jurisdiction is concurrent.

3. JUDGMENTS-Persons ConcluDED-PARTY by RepresentATION.

A widow entitled under the laws of Texas to a life estate in onethird of real estate owned by her husband, which consisted of an undivided interest inherited from his father, is not bound by a compromise judgment entered in an action brought by her children and the other heirs of their grandfather against an adverse claimant, to which action she was not a party. The fact that her co-tenants might have recovered her interest in their own names did not render her a party by representation.

4. ESTOPPEL-LIFE TENANT-ACCEPTANCE OF PROCEEDS OF SALE BY REMAINDER. MEN.

The acceptance by a married woman, as a gift from her children by a former marriage, of a part of the money received by them in payment for their interest in lands inherited from their father, in which she had a life estate under the laws of Texas, did not estop her from asserting her rights as life tenant as against the purchaser, where her children did not undertake to convey anything more than their own interest.

5. DOWER-ESTATE OF SURVIVING WIFE UNDER TEXAS STATUTE-MINERAL RIGHTS

The land and marital laws of Texas are derived largely from the civil law, and the life estate given thereby to a surviving wife in the lands of her deceased husband is broader than the common-law dower; such life estate being one which under the civil law could not have been impeached for waste, and which would have carried with it the right to open and work every kind of mines on the property.

6. SAME.

The statute of Texas governing "descent and distribution," after providing for the distribution of the personal estate of an intestate who leaves a surviving husband or wife and children, further provides (Rev. St. art. 1689) that "the surviving husband or wife shall also be entitled to an estate for life in one-third of the land of the intestate, with remainder to the child or children of the intestate or their descendants." Held, that the word "land" is employed in such statute in its most comprehensive sense, and that a surviving husband or wife takes a onethird interest for life in the land itself, as such, including not only the surface, but also all minerals therein, and is entitled to a proportionate share of the income or profit derived from the extraction of such minerals during his or her lifetime, whether operations were commenced prior to the death of the decedent, or subsequently by the remaindermen or owners of the other undivided interests.

1 State laws as rules of decision in federal courts, see notes to Griffin v. Wheel Co., 9 C. C. A. 548; Wilson v. Perrin, 11 C. C. A. 71; Hill v. Hite, 29 C. C. A. 553.

2 Dower in mines, see note to Black v. Mining Co., 3 C. C. A. 316.

7. RECEIVERS-GROUNDS PRODUCTION. Complainant's husband died intestate, leaving her and two children surviving, and being the owner at the time of his death of an undivided one-sixth interest in certain lands in Texas, in one-third of which, under the laws of the state, complainant took a life estate. No division of the lands affecting complainant's interest was ever made. Subsequently defendants acquired the interests of all of the other tenants in common of the property, including the interest of complainant's children as remainder-men, and drilled numerous oil wells thereon which produced large quantities of oil. Held, that complainant was entitled either to one-eighteenth of the net proceeds of the oil produced, or to the income which such share would produce during her lifetime, and that, while she was not entitled to the appointment of a general receiver to take control and management of the property, she was entitled to the appointment of a special receiver to collect and hold such share of the proceeds pending the determination of her rights therein; the defendants being numerous, and for the most part corporations formed for the sole purpose of producing and selling oil.

FOR APPOINTMENT--IMPOUNDING INTEREST IN OIL

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

The opinion of the circuit court, filed December 6, 1901, is in full as follows:

BRYANT, District Judge. This is an application for the appointment of a receiver. The complainant, Annie E. Snow, a citizen of the state of California, joined pro forma by her husband, G. H. Snow, has filed a bill in equity against the defendants, Higgins Oil & Fuel Company and over 200 others, corporations and natural persons, citizens of the state of Texas, or of states other than California, alleging that she is the owner of a life estate in one-eighteenth, undivided, of the John A. Veatch survey of land in Jefferson county, Tex., less certain subdivisions that are excepted, embracing the greater portion of the Beaumont oil field, and including at the date of the filing of the bill 66 flowing wells, all in the possession of the defendants, who are engaged in marketing the oil. She seeks an accounting in regard to the oil taken and marketed, claiming an eighteenth thereof, and to recover the amount ascertained to be due. The bill also contains the prayer for the appointment of a receiver to take charge of the wells, so that they may be operated pending the litigation without risk or detriment to any party, or, in the alternative, that a receiver be appointed to collect one-eighteenth of the revenues from said wells, and to hold or invest the same pending the litigation, with such powers and duties as the exigencies of the case may warrant. Those of the defendants who have appeared in response to the rule to show cause why a receiver should not be appointed have filed demurrers and answers, and make substantially the following contentions: (1) That the complainant has been guilty of laches in not sooner asserting her claim, and should, therefore, be denied equitable relief; (2) that as to 500 acres of the land she is concluded by a judgment rendered in 1887 in a suit brought by her children and others, in which the 500 acres was awarded to one Charles L. Cleveland, a defendant in the suit; (3) that she received and used money from the estate of her first husband, Andrew A.

Veatch, through whom she inherited the life estate here involved, equivalent to her interest in this land, and also received and used a portion of the proceeds of a sale made by her children of their interest, and is therefore estopped from asserting any claim here; (4) that as a life tenant the complainant is entitled to no interest in the oil produced, her estate being limited to the surface; and (5) that in no event should a receiver be appointed. The complainant filed a general replication.

It was established on the hearing that the land in question, about 3,400 acres, was granted by the Mexican government to John A. Veatch, February 6, 1835, and was owned by him at his death, April 24, 1870. He died intestate, and this land was inherited by his six children, one of whom was Andrew A. Veatch. The complainant was married to said Andrew A., January 20, 1869, and lived with him as his wife until his death, intestate, March 11, 1871, when, under the law of descent and distribution in force in Texas, an estate for life in one-third of his one-sixth interest vested in her, with remainder to their children, who were two in number. Afterwards on March 25, 1875, the complainant was married to her present husband, G. H. Snow, and they have ever since lived together as husband and wife. Prior to the year 1882 this land, which is practically all level prairie, lay out, wild and unoccupied. It was about that time inclosed in a pasture with other land by parties who paid the taxes for the use of the land until about the year 1896, when the fences were taken down and it became again uninclosed, with the exception of a few small tracts, of a few acres each, that were put into cultivation subsequent to 1896. Thus it was, nearly all lying out and unfenced, and used as commons by the public, when petroleum oil was discovered in January of the present year. The first well was on the Pelham Humphreys survey, a short distance from the line of the Veatch. Since then many wells have been sunk on the Veatch, and others are being drilled; but the present oil territory thereon does not exceed 200 acres. That portion, however, is thick with derricks, and has upon it tanks, pipe lines, and railroad tracks, and the surface soil is impregnated with petroleum, so that agriculture, or any use, except for the production of oil, is prevented. The greater portion of the remainder of the survey is shown to be capable of cultivation and adapted to rice culture or pasturage. Affidavits were read showing that for these purposes it has a value of from $15 to $35 per acre; but it is under a lease for oil mining. The wells have been drilled, and the tanks and pipe lines constructed, by the defendants, at great expense, as shown by their answers. With the exception of the complainant's interest, they own the land held by them, respectively, deriving title by mesne conveyances from the heirs of John A. Veatch for all except the 500 acres known as the "Charles L. Cleveland Tract," and they hold that under like conveyances from Cleveland. The latter acquired title to this as against all the children and grandchildren of John A. Veatch by a compromise judgment of the district court of Jefferson county, rendered June 7, 1887, in a suit brought by them. The complainant's two children were parties plaintiff, represented by their uncle, Samuel H. Veatch, as next friend;

but she was not a party. Afterwards these children executed powers of attorney to their uncle, and he conveyed their interests thereunder, accounting to them for $300 as proceeds of the sale. This was in 1891, and it seems that they gave their mother a part of the money, and it was used in support of the family. After the Cleveland judgment some of the land was platted as a town, with lots, blocks, streets, and alleys, and some lots were sold; but no evidence was offered showing that the complainant knew of this, that is, had actual knowledge. It also appears that she never exercised any acts of ownership over the land, or asserted any claim to it, until after the oil discovery. On May 25, 1901, however, she made a written demand on each of the defendants, the Higgins Oil & Fuel Company, the J. M. Guffey Petroleum Company, the Heywood Oil Company, the Lone Star & Crescent Oil Company, and the National Oil & Pipe Line Company, to be let into joint possession, and for an accounting as to the oil taken by them, which was refused. Of these defendants only one, the J. M. Guffey Petroleum Company, states in its answer the amount or value of oil marketed. All the defendants who have answered and are operating wells show their solvency and ability to respond to any judgment that may be obtained against them in the case. In fact, the complainant does not deny their present solvency, but makes a sworn averment as follows:

"Your orator further shows that the property of said corporate defendants operating and that will operate wells on said land consists mainly, and in some instances solely, of the interest owned by them in said land and in said wells; that the land is of but little value, except for the oil, and if said defendants are allowed to exhaust said oil, and pay the revenue to their stockholders, many of whom reside and have their property beyond the limits of the state of Texas, as your orator fears they will do, there would be no available and adequate fund and property out of which your orator could be compensated; that said defendants operating said wells are antagonistic and hostile to your orator, and therefore cannot be relied upon to render an impartial and just account of their operations; also that the oil is taken from the wells by means exclusively within the control of the defendants, and that the complainant has no way of ascertaining and proving by disinterested testimony the amount of oil taken and marketed from time to time."

The first question presented has been frequently decided by the supreme court of Texas, where it is eld that, if the complainant's title is a legal one, as in the present case, capable of being established at law, the doctrine of laches and stale claim does not apply. It is simply a question of adverse possession. San Patricio Corp. v. Mathis, 58 Tex. 242; Moss v. Berry, 53 Tex. 632; Williams v. Conger, 49 Tex. 602; House v. Brent, 69 Tex. 30, 7 S. W. 65; Lumber Co. v. Pinckard (Tex. Civ. App.) 23 S. W. 723; Land Co. v. Hyland (Tex. Civ. App.) 28 S. W. 206. And, though sitting in equity, this court may follow the rule of decision in the state court on the question of limitation and laches. Balkam v. Iron Co., 154 U. S. 177, 14 Sup. Ct. 1010, 38 L. Ed. 953; Tioga R. Co. v. Blossburg & C. R. Co., 20 Wall. 137, 22 L. Ed. 331. Again, since the complainant could go into a court of law and establish her title, and then come to this court for the desired equitable relief, there is no reason why she should be denied it in the first instance. In cases, thus, of

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