Aladdin Petroleum Corp. v. State ex rel. Commissioners of the Land Office

GIBSON, J. These cases involve title to a portion of the south half of the bed of the Arkansas river in township 23 north, range 3 east, Pawnee county. In each case the State of Oklahoma ex rel. Commissioners of the Land Office of the State of Oklahoma and Champlin Refining Company, its lessee, defendants in error herein, as plaintiffs, instituted action in trial court against plaintiffs in error, defendants below, to quiet title to that portion of the south half of the river bed which lay opposite the riparian lands of the defendants, owners and their lessees. In each case defendants, on cross-appeal, claimed ownership in themselves of such river bed and sought to quiet their title thereto against the plaintiffs, and, in one of the cases, asked an accounting for oil produced from the bed by the plaintiffs. Upon the trials plaintiffs in each case were awarded judgment, and it is therefrom these appeals were taken. The cases involve the same question, and have been consolidated, briefed and argued together, and, for the purpose of review, they will be treated as one case. For convenience the parties, plaintiffs and defendants in the trial court, will be hereinafter referred to as state and defendants, respectively. A historical review of the title to the land involved is necessary to a clear understanding of the questions involved. In United States v. Champlin Refining Co. et al., 156 Fed. 2d 769, there was involved the title to river bed land in the same vicinity and held under like chain of title as the lands here involved. The historical review there stated is applicable here, and we quote therefrom: “The United States originally acquired title to the land in suit as part of the Louisiana Purchase. Under treaties of May 6, 1828, February 14, 1833, and December 29, 1835, the United States, by deed dated December 31, 1838, conveyed to the Cherokee Nation a large tract of land on both sides of the bed of the Arkansas River, embracing the south half of the river bed here in suit. By the treaty of July 19, 1866, the Cherokee Nation agreed that the United States might settle friendly Indians upon that part of the Cherokee lands known as the Cherokee Outlet, which embraced the portions of the river bed here in suit. Article — 136 — 16 of that treaty provided that such lands would be conveyed to the Indians so settled. By treaty of October 28, 1867, a reservation was set aside for the Cheyenne and Arapahoe Indians between the Cimarron and Arkansas Rivers. That reservation embraced the portions of the river bed here in suit. It was expressly extended to the middle of the Arkansas River. The Cheyenne and Arapahoe Indians declined such reservations and relinquished their claim. On June 5, 1872, Congress authorized the Cherokee Nation to convey to the Osage Nation a tract of land described as follows: ‘Bounded ... on the south and west by the north line of the Creek country and the main channel of the Arkansas River, . . .’ The conveyance was made. It included the land on the opposite side of the river at approximately the location of the four riparian tracts and title of the Osage Nation to the north half of the river bed was upheld in subsequent litigation between the United States and the State of Oklahoma. “The land on both sides of the Arkansas River at the location of the portions of the river bed here in suit was first surveyed into sections, townships, and ranges in September, 1872. The survey was approved on September 16, 1872. “Two of the riparian tracts are in Township 23 North, Range 4 East of the Indian Meridian. These tracts are held in trust for Pawnee Indians. The other two riparian tracts are located in Township 23 North, Range 3 East of the Indian Meridian. These tracts are held in trust for Otoe Indians. “Under the 1866 treaty with the Cherokees, and pursuant to the Act of March 3, 1881, the Secretary of the Interior designated and assigned for the use and occupation of the Confederated Otoe and Missouria tribes of Indians ‘that portion of Tp. 23, N. R. 3 E. lying West of the Arkansas River. . . .’ Pursuant to the 1886 treaty with the Cherokees, and in conformity with the Act of March 3, 1883, the Cherokee Nation, on June 14, 1883, conveyed to the United States in trust for the use and benefit of the Otoe and Missouria Indians: ‘Fractional township twenty-three (23) North, range three (3) East of the Indian Meridian; lying and being on the right bank of the Arkansas River, according to a plat of said lands hereto annexed, marked ‘A’, and made a part of this conveyance’ ....’” In addition to what is contained in the quotation, there is the treaty of December 19, 1891, between the Cherokee Nation and the United States whereby there was ceded to the United States all right and claim of the Nation “in and to that part of the Indian Territory bounded on the west by the one hundred degree (100°) of west longitude; on the north by the State of Kansas; and on the east by the ninety-sixth degree (96°) of west longitude”, which embraces the area here involved. The riparian lands herein are particularly described as lots 6 and 7 of section 23 and lot 8 of southwest quarter of section 24, all in said township and range. The defendants claim title under or through trust patents that were executed August 30, 1900, and June 10, 1907, and being prior to the admission of Oklahoma into the Union they occupy, under the law, the same position as would obtain if fee patents for the lands so held had issued prior to statehood (State of Oklahoma v. State of Texas, 258 U. S. 574, 595, 66 L. Ed. 771). In the patents the lands were described as lots which represented legal subdivisions of the upland established by the government survey and as shown on the official plat. Therein there were no express inclusions or exclusions of rights in the river bed. There are no disputed issues of fact. On the question of navigability, which is involved, the defendants introduced one witness who testified that the Arkansas river at the locality involved was not and never had been navigable, and they stated to the court they were prepared to introduce other witnesses .who would testify to the same effect. At this juncture counsel for plaintiffs frankly informed the court they would offer no testimony on the question of navigability and that they rested their claim of navigability on the decision — 137 — of this court in State v. Nolegs, 40 Okla. 479, 139 P. 943. It is manifest that the result of the evidence introduced and the statement made is to establish for all of the purposes of this case the nonnavigability of the stream in fact unless by force of the decision in the Nolegs case the stream is to be deemed navigable for the purpose of the issues involved. As grounds for the alleged error in the judgment the defendants submit the following propositions: “Proposition One “After its conveyance to the Cherokee Nation in December, 1838, title to the lands involved herein was never held by the United States of America except as trustee for the use and benefit of the Otoe and Missouria tribes of Indians. “Proposition Two “Since the Arkansas River at the locations in controversy was not navigable in fact or in law at the time of Oklahoma’s admission to the union, the defendants’ predecessors and the defendants, by conveyance, acquired ownership of the land to the middle of the stream.” And, among the authorities cited, chief reliance is placed upon Brewer-Elliott Oil & Gas Co. v. United States, 260 U. S. 77, 67 L. Ed. 140, and State of Oklahoma v. State of Texas, supra, which are urged to be in point and controlling. The contention of the state in support of the judgment is thus stated in the brief: “That all portions of the river bed which were expressly granted to Indian tribes, prior to Statehood, remain the property of those tribes or their grantees, whereas all portions of the bed which were not thus conveyed, but which were a part of the public domain, became the property of the State of Oklahoma by virtue of the rule of property announced and declared by this court in State v. Nolegs, 40 Okla. 479, 139 P. 943.” And in support of this statement they contend, substantially in accordance with the holdings of the trial court, as follows: 1. That the grant in 1883 from the Cherokee Nation to the United States in trust for the use and benefit of the Otoe and Missouria Indians did not convey the river bed adjoining and hence the title remained in the Cherokee Nation until the Treaty of 1891 when it passed by cession and became a part of the domain of the United States. 2. That on advent of statehood the title thereto became subject to determination by the law of the state under which, as declared in the Nolegs case and by statutory enactment, it became the property of the state except to the extent it had been expressly granted prior to statehood. 3: That the patents under which the defendants claim do not expressly include the river bed and therefore the title of the state thereto was not impaired thereby. In a very elaborate brief on behalf of the state many authorities are cited and discussed touching the division of the powers, national and state, the extent of the state’s sovereignty over streams and riparian rights, and with special emphasis upon the case of Wear v. Kansas, 245 U.S. 154, 62 L. Ed. 214, as supporting the Nolegs case upon the construction of riparian grants made prior to statehood. And it is urged that the Brewer-Elliott case does not in substance alter the rule except in cases where the grant of the river bed is in express terms. If the questions here involved were open for initial determination, much of the material there gathered would be enlightening and helpful. But since we are of the opinion that the material questions here are few and that they are determinable on the basis of legal standards that are fixed, applicable and controlling, we will here consider the issues in the light of such standards and with only such reference to the — 138 — state’s specific contention as occasion may require. The controlling question upon the state’s claim of title, whether as successor to the title of the United States by operation of law on advent of statehood or from the grantees of the United States through operation of laws judicially declared or enacted since statehood, is whether the stream be navigable in fact. We consider first the contention that the title to the bed of the stream being in the United States as part of its domain passed to the state upon admission into the Union, and for the purpose we will assume, though not decide, that the title thereto did not pass to the paten-tees. The decision in State of Oklahoma v. State of Texas, supra, is controlling. There Indian allottees and others on the north side of the Red River claimed title to the center of the stream and the United States in its own right claimed title to the bed of the river lying south of the center. The State of Oklahoma was there asserting title to the entire bed of the stream. As to the state’s claim to the south half the court held as follows: “Oklahoma claims complete ownership of the entire bed of the river within that state, and, in support of its claim, contends that the river, throughout its course in the state, is navigable, and therefore that, on the admission of the state into the Union, on November 16, 1907 (34 Stat. at L. 2160), the title to the river bed passed from the United States to the state, in virtue of the constitutional rule of equality among the states, whereby each new state becomes, as was each of the original states, the owner of the soil underlying the navigable waters within its borders. If that section of the river be navigable, its bed undoubtedly became the property of the state under that rule. Those who oppose the state’s claim recognize that this is so; and the state concedes that its claim is not tenable if that section of the river be not navigable. So the real question in this connection is whether the river is navigable in Oklahoma.” As the basis for its claim, the state sought to establish the fact of navigability by a decision of the state’ highest court. Concerning the decision and the claimed effect thereof, the court declared: . “A decision by the Supreme Court of Oklahoma, in Hale v. Record, 44 Okla. 803, 146 P. 587, is relied on as adjudging that the river is navigable in fact. The opinion in the case is briefly to the effect that in the trial court the evidence was conflicting, that the conflict was there resolved on the side of navigability, and that this finding had reasonable support in the evidence, and therefore could not be disturbed. It was a purely private litigation. The United States was not a party and is not bound. There is in the opinion no statement of the evidence, so the decision hardly can be regarded as persuasive here. “We conclude that no part of the river within Oklahoma is navigable, and therefore that the title to the bed did not pass to the state on its admission into the Union. If the state has a lawful claim to any part of the bed, it is only such as may be incidental to its ownership of riparian lands on the northerly bank. And so of the grantees and licensees of the state.” And, declaring the test to be navigability in fact and that such test obtained in Oklahoma, it was said in the opinion: “We find nothing in any of the matters relied on which takes the river in Oklahoma out of the settled rule in this country that navigability in fact is the test of navigability in law, and that whether a river is navigable in fact is to be determined by inquiring whether it is used, or is susceptible of being used, in its natural and ordinary condition, as a highway for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water.” The Nolegs case, to which the United States was not a party, is no more controlling here than the Hale-Record case — 139 — was there-. And with the failure of the Nolegs case, which is the sole basis for the claim of navigability herein, it follows that if, as alleged, the bed of the river did not pass to the riparian claimants, the state’s claim thereto is groundless. We think it clear that the title to the river bed had passed to the defendants notwithstanding there was no express inclusion therein of the river bed, and that their title thereto remained unaffected by the decision in the Nolegs case and the legislative enactment relied on. The grant from the Cherokee Nation to the United States in trust and the patents here involved merely described the acreage in accordance with the subdivisions of the official survey. The grant was made in pursuance of the treaty of 1866 and pertinent thereto is article 16 of the treaty, of which we quote the first paragraph: “The United States may settle friendly Indians in any part of the Cherokee county west of 96°, to be taken in a compact form in quantity not exceeding one hundred and sixty acres for each member of each of said tribes thus to be settled; the boundaries of each of said districts to be distinctly marked, and the land conveyed in fee simple to each of said tribes to be held in common or by their members in severalty as the United States may decide.” As to the contention that the grant was ineffective to pass the bed of the stream because not expressly included, note the following in Gertrude H. Hardin v. Conrad N. Jordan, 140 U. S. 371, 35 L. Ed. 428: “Such being the form of the title granted by the United States to the plaintiff’s ancestor, the question is as to the effect of that title in reference to the lake and the bed of the lake in front of the lands actually described in the grant. This question must be decided by some rule of law, and no rule of law can be resorted to for the purpose except the local law of the State of Illinois. If the boundary of the land granted had been a fresh-water river, there can be no doubt that the effect of the grant would have been such as is given to such grants by the law of the state, extending either to the margin or centre of the stream, according to the rules of that law. It has been the practice of the government from its origin, in disposing of the public lands, to measure the price to be paid for them by the quantity of upland granted, no charge being made for the lands under the bed of the stream, or other body of water. The meander lines run along or near the margin of such waters are run for the purpose of ascertaining the exact quantity of the upland to be charged for, and not for the purpose of limiting the title of the grantee to such meander lines. It has frequently been held, both by the Federal and state courts, that such meander lines are intended for the purpose of bounding and abutting the lands granted upon the waters whose margins are thus meandered; and that the waters themselves constitute the real boundary.” That it was within contemplation of the treaty of 1866 that the reservations thereafter created would include the bed of the stream is reflected in the reservation created thereafter in 1867 for the Cheyenne and Arapahoe Indians which was declined. That reservation, which was prior to the official survey, expressly recognized that the title, including the lands here involved, extended to the middle of the stream. There appears no reason why the rule announced in the quoted case does not apply. And the fact that the treaty prescribed the definite quantity of acreage for the individual ownership in severalty or otherwise is indicative of the fact the United States had plenary authority in accomplishing the aim. Such being true we hold that the declared rule of construction is to be deemed applicable to the grant to the United States in 1883, and to the patents under which defendants claim. Hence, under the quoted authority, the question is whether the bed passed under the patents AÍvithout its express inclusion. Under such authority this is dependent upon the local law. And that it would so pass in Oklahoma Territory — 140 — was established by the decision in State of Oklahoma v. State of Texas, supra. As hereinbefore stated, Oklahoma therein contested the river bed rights of the riparian owners of the left or north bank of the stream. Concerning their rights the court there declared: “In executing the acts there was no attempt to dispose of the river bed separately from the upland. The disposals were all according to the legal subdivisions established by the survey of the upland and shown on the official plat. In the patents there was no express inclusion or exclusion of rights in the river bed. “Tested by the common law, these conveyances of riparian tracts conferred a title extending not merely to the water line, but to the middle of the stream. Possibly, if the river bed for its entire breadth had been subject to disposal under the Acts of 1900 and 1906, the title would have extended to the Texas boundary along the other side; but this is a debatable question which need not be considered here, for no disposal under those acts could go beyond the medial line. That limitation inhered in all that was done. “But it was contended that the common-law rule, although formerly adopted in Oklahoma, and recently recognized by the Supreme Court of the state, has been impliedly abrogated by the Legislature. The contention is not sustained by any decision in the state, and, in our opinion, is not tenable. It is based upon statutes displacing or qualifying the common-law rule respecting the rights of riparian proprietors in the natural flow of a stream, which is a matter quite distinct from the ownership of the bed of the stream. The rule as to either could be displaced without affecting the other. “Our conclusion on the general question is that the disposal of the lands on the northerly bank carried with it a right to the bed of the river as far as, but not beyond, the medial line.” The holding is an express recognition that the common-law rule obtained in Oklahoma and that by reason thereof the title to the bed passed without an express inclusion thereof in the patent. That the common law so obtained and had since the settlement in 1889 was expressly recognized by the Territorial court in McKennon v. Winn, 1 Okla. 327, 33 P. 582. It is also clear, though not specifically stated, that the Hale-Record case no more controlled the claims of the riparian owners than that of the United States because such claimants prevailed. It does not appear that the court there considered the 1919 act of Oklahoma Legislature (Laws 1919, ch. 206, p. 293, Tit. 64, O. S. 1941 §290) which is as follows: “The Commissioners of the Land Office are hereby authorized to lease for oil and gas purposes all lands between mean high water mark in all streams or rivers of two chains or over; all such streams are declared the property of the State of Oklahoma.” However, under the controlling principle applied by the court, any effect of the statute to impair the rights of its grantees under grants prior to statehood would have to be denied. The controlling principle involved was thus declared in George F. Packer v. Jake Bird et al., 137 U. S. 661-673, 34 L. Ed. 819: “The courts of the United States will construe the grants of the general government without reference to the rules of construction adopted by the States for their grants; but whatever incidents or rights attach to the ownership of property conveyed by the government will be determined by the States, subject to the condition that their rules do not impair the efficacy of the grants or the use and enjoyment of the property by the grantee.” This doctrine was expressly recognized by this court in Vickery v. Yahola Sand & Gravel Co., 158 Okla. 120, 12 P. 2d 881. In the case of Brewer-Elliott Oil & Gas Co. v. United States et al., supra, the State of Oklahoma was asserting claim to the bed of the Arkansas river, in the same locality as here, against the United States who, as trustee for the — 141 — Osage Tribe of Indians, held title to that portion of the left or north bed that lay opposite the Osage reservation, which was expressly included in the grant to the United States. There was asserted on behalf of the state the same contentions as are made herein except that the contention here is that the state succeeded to the title of the United States to that portion of the bed which had not been expressly conveyed prior to statehood. Therein the state relied specifically upon the decision in the Nolegs case, the decision in Wear v. Kansas, supra, as supporting the pronouncement in the Nolegs case, and the legislative act hereinbefore quoted, and they were all considered by the court in reaching its determinations. In the opinion, after holding there was no need to dispose of the question, whether the United States could have so disposed of the river bed if same were navigable, because the same was not navigable, the court said: “If the Arkansas river is not navigable, then the title of the Osages, as granted, certainly included the bed of the river as far as the main channel, because the words of the grant expressly carry the title to that line. “But it is said that the navigability of the Arkansas river is a local question, to be settled by the Legislature and the courts of Oklahoma, and that the Supreme Court of the state has held that, at the very point here in dispute, the river is navigable. State v. Nolegs, 40 Okla. 479, 139 P. 943. A similar argument was made for the same purpose in Oklahoma v. Texas, supra, based on a decision by the Supreme Court of Oklahoma as to the Red river. Hale v. Record, 44 Okla. 803, 146 P. 587. The controlling effect of the state court decision was there denied because the United States had not been there, as it was not here, a party to the case in the state court. Economy Light & P. Co. v. United State, 256 U. S. 113, 123, 65 L. Ed. 847, 854, 41 Sup. Ct. Rep. 409. In such a case as this, the navigability of the stream is not a local question for the state tribunals to settle. The question here is what title, if any, the Osages took in the river bed in 1872,, when this grant was made, and that was thirty-five years before Oklahoma was taken into the Union, and before there were any local tribunals to decide any such questions. As to such a grant, the judgment of the state court does not bind us, for the validity and effect of an act done by the United States is necessarily a Federal question. The title of the Indians grows out of a Federal grant when the Federal government had complete sovereignty over the territory in question. Oklahoma, when she came into the Union, took sovereignty over the public lands in the condition of ownership as they were then, and if the bed of a nonnavigable stream had then become the property of the Osages, there was nothing in the admission of Oklahoma into a constitutional equality of power with other states which required or permitted a devesting of the title. It is not for a state, by courts or Legislature', in dealing with the general subject of beds of' streams, to adopt a retroactive rule for determining navigability which would destroy a title already accrued under Federal law and grant, or would enlarge what actually passed to the state, at the time of her admission, under the constitutional rule of equality here invoked.” It is manifest from what is said that the state can predicate no claim of title to the river bed upon authority of' the holding in the Nolegs case nor upon the intended purpose of the legislative act. The contention that the quoted casé-is authority for the contention that to-convey the river bed as against the claim of the state thereto such conveyance must expressly include the bed in the grant is clearly unjustified by anything that is said in the opinion. The emphasis there placed upon the express inclusion of the bed in the grant is solely to stress-the fact that such was. the intention. There is nothing to indicate that without the express inclusion such intention would not be presumed' as declared in Hardin v. Jordan herein-before quoted. On the contrary, it is. expressly declared in State of Oklahoma v. State of Texas, supra, that — 142 — like conveyances executed prior to statehood would be construed according to the common law under which the title of grantees would extend to middle of the stream. And the court there rejected the contention that the common law rule had been impliedly abrogated in Oklahoma. The chief basis of the argument on behalf of the state is based on the holding of the court in Wear v. Kansas, supra. If that case could be deemed controlling of the issues here presented its consideration would be pertinent. Whether it is or is not controlling is a Federal question and the authoritative determination of the applicability rests with the United States Supreme Court. In the quoted case reliance was placed on the Wear case in support of the same contentions that are made here. The court there refused to recognize that the decision in the Wear case was applicable and expressly distinguished it in announcing the principles that are governing both there and here. Furthermore, the reliance herein upon the Wear case is solely for its support of the decision in the Nolegs case as an authoritative "pronouncement on the question of navigability. In the Brewer-Elliott case, supra, the court, on direct consideration of the Nolegs case, expressly declared that the pronouncement therein was not authoritative. It cannot be here successfully urged that the implied support of the Nolegs case to be found in the Wear case can be applicable in face of the holding of the court in the Brewer-Elliott case that the Nolegs case is not supportable and that the Wear case is not applicable thereto. For this court to sustain the holding in the Nolegs case on authority of the Wear case as contended for would, under the circumstances, be tantamount to overruling the decision of the United States Supreme Court, in the Brewer-Elliott case. Our conclusion accords in all respects with that reached in United States v. Champlin Refining Co. et al., supra, which was affirmed by the Supreme Court of the United States in Champlin Refining Co. v. United States et al., 329 U. S. 29, 91 L. Ed. 9, 67 S. Ct. 1, on authority of State of Oklahoma v. State of Texas, supra, and Brewer-Elliott Oil & Gas Co. v. United States, supra. It is strenuously urged that the holding in the Champlin case where the title had not passed from the allottee to whom granted should not be deemed applicable here where the title had passed from the allottee. We see no basis for the distinction. In either case the decision must rest upon whether the title to the middle of the stream did or did not pass at the time of the Federal grant and subsequent transfers could not alter such fact. The judgments are reversed and both causes are remanded, with directions that in each case, on the question of title to the premises involved, the court render judgment for defendant according to their several and respective rights, and take such further proceedings as the cases may require, not inconsistent herewith. DAVISON, V.C.J., and BAYLESS, CORN, and LUTTRELL, JJ., concur. RILEY and WELCH, JJ., dissent.