Before PHILLIPS, Chief Judge, and BRATTON and HUXMAN, Circuit Judges.
This was a quiet title action filed by appellants against the appellees in the Superior Court of Creek County, Oklahoma, and was removed by appropriate proceedings to the United States District Court for the Northern District of Oklahoma.
We pause at the outset to say that in perfecting the appeal, appellants have violated every rule of this court with respect to shortening the record. The record consists of three volumes totaling 721 pages. One volume of 173 pages alone consists entirely of the pleadings containing numerous exhibits set out in toto, when a reference to their contents would have sufficed.By this lack of industry, appellants' counsel have compelled us to do their work, wade through this labyrinth, and abstract the essential parts of the record, and have unnecessarily increased the costs of the appeal.
The defendants below, appellees here, fall into two classes - those claiming an interest under oil and gas leaseholds and those claiming as fee holders. Sinclair Oil and Gas Company, herein called Sinclair, Atlantic Refining Company, herein called Atlantic, and Arch H. Hyden, Administrator of the Estate of Sarah C. Getty, are the leaseholders and will be referred to herein when appropriate as leaseholders.*fn1
The remaining defendants, appellees in this court, are the fee holders and will be so referred to when appropriate.
Lete Kolvin, a full-blood restricted Creek Indian, enrolled opposite 8092, was the owner by allotment of the Southwest Quarter of Section 16, Twp. 18N, R 7E, of the Indian Meridian. Lete Kolvin died prior to June 30, 1902. In their complaint, appellants allege that they were the heirs and the sole heirs of Lete Kolvin and as such were the owners of and in the peaceable possession of the real estate in question, and that the appellees through various chains of title claimed an interest in such real estate adverse to them. They asked that their title be quieted against each and all of the appellees and for an accounting against the leaseholder defendants below of the oil extracted from the land.
The leaseholder defendants answered setting up their claim of title under various oil and gas leases, denied the claims of appellants and asked that their title to their interest be quieted. The fee holders likewise set up their claims of title, denied the title of appellants and asked that the title to their interest be quieted.*fn2 The matter came on for hearing before the court on the motions by defendants for a summary judgment. Summary judgment was entered for each and every defendant against appellants quieting their titles to their respective interests in the real estate, and this appeal followed.
In footnotes*fn3 and*fn4, we have set out the various conveyances, subsequent to the death of Lete Kolvin, necessary for a consideration of the questions raised on this appeal.
We shall not attempt to discuss categorically all the assignments of error discussed in appellants' brief. In many respects they are interrelated and overlapping.We shall attempt to dispose of all of the legal questions inherent in the appeal.
It is first contended that in the case in the lower court was not ripe for summary judgment. The record does not support this contention. In addition to their answers resisting the claim of appellants, the fee holders filed a cross claim against the appellants and the unknown heirs, executors, etc., of Lete Kolvin, and against other deceased persons and their unknown heirs, executors, etc., claiming or purporting to claim an interest in the land, whom they made additional parties defendant, seeking a judgment quieting the title as against all of them. Appellants contend that this affirmative relief, seeking a determination of the identity of the individual heirs of these deceased persons and asking a judgment of quiet title against them, makes the case inappropriate for summary judgment. Without passing upon the soundness of this contention, it is a sufficient answer to say that no summary judgment was entered upon the cross complaint. The summary judgment adjudicated only the issues raised by appellants' complaint and appellees' answers thereto.
In its answer, Sinclair alleged that, "Plaintiffs have access to the courts to determine whether they are the true and lawful owners of said land * * *." Appellants seize upon this phrase and assert: "That the defendants should not be permitted to admit that the plaintiffs have access to the courts to determine whether they are the true owners of the land and then resort to summary judgment in an effort to have such access denied." All this allegation in the answer can be construed to mean is that appellants had a right to bring an action and have the issue adjudicated.This was done by the court's summary judgment. There was no disputed issue of fact. The record, evidence, and the stipulations of the parties left no controversial issue of fact and there remained only a question of law and the court properly entered a summary judgment.
The court found that appellees, H. B. Barnard, V. V. Harris, C. B. Hyde, F. P. Swan, N. P. Mathes, Jennie C. Holman, N. B. Feagin, Bar Don Oil Company, Beulah Boxley, G. R. Eckles as Administrator of the Estate of John D. Boxley, deceased, Villard Martin as Trustee for Kathryn Cornell Maxey, Margaret Hammons, Executrix of J. D. Hammons, deceased, W. T. Anglin, Alfred Stevenson, Anglin and Stevenson, a co-partnership composed of W. T. Anglin and Alfred Stevenson, Roley Buck and Pearlie Buck, and the Atlantic Refining Company were the fee and royalty holders of the above described real estate under the Nancy Barnett, Soccer Grayson, and Milley Asbury chain of title and their predecessors in title. That they have been in the open, notorious, hostile, exclusive and continuous possession since on or about November 1, 1913, as to the ...