CHAPTER XXIII

OIL AND TIMBER LAND LITIGATION

Oil Land Ownership

The discussion in the previous chapter dealt with litigation under the

Sherman law which checked the absorption of the Southern Pacific by

the Union Pacific system and profoundly altered the relations of these

two companies to each other. Our narrative will close with the mention

of two other suits or groups of suits which concerned, the one, the

possession of certain oil properties in southern California, and the

other, the administration of lands—mainly timber lands—granted to the

Oregon and California Railroad in the North by federal legislation of

1866 and 1869. The Southern Pacific Company took part in both of these

controversies as a principal interested party.

The oil lands which until recently belonged to the Southern Pacific

Railroad lay principally in the West San Joaquin fields in southern

California. They covered an area of between 160,000 and 170,000 acres.

In 1917, a committee of the California State Council of Defense

estimated that the Southern Pacific and its subsidiary companies

controlled 26.4 per cent of the total output of the state, although

much of the oil so controlled was not produced upon the company’s own

land. The actual production of oil by the Southern Pacific Company

in June, 1918,[599] was 49,679 barrels out of 282,672 barrels of

production by all companies in the state, or a little less than 18 per

cent.[600] No later statistics of production by companies have been

made public. In June, 1920, however, the Southern Pacific Land Company

owned 19.38 per cent of all the proven oil land in California, and in

addition the Southern Pacific Company held a controlling interest in

the Associated Oil Company, also a large producer.

Unquestionably the Southern Pacific oil lands are valuable. A witness

in one of the recent cases testified that he had told Mr. Huntington

in 1893 that the railroad oil lands were worth more than the entire

Southern Pacific Railroad, while it is common report that the value of

the properties may run into the hundreds of millions of dollars. All

this is, moreover, recent. The discovery of oil in large quantities

was first made in southern California in the Kern River field, near

Bakersfield, in the spring of 1899. This was followed by discoveries

in the so-called McKittrick and Sunset fields, and by an oil boom of

extraordinary proportions. In so far as the railroad owns oil lands, it

has therefore recently secured an unearned increment which is not only

of great size, but of a character entirely unanticipated by legislators

of earlier days. This has given rise to controversy, in which the

government has questioned the railroad title.

The peculiarity of the oil land litigation, and the reason why the

federal government is involved, is found in the fact that the railroad

land is mostly land-grant land, lying within the limits laid down by

the Act of 1866 from which the Southern Pacific Railroad took its life.

It follows from this that the railroad title was affected by certain

reservations in the land-grant legislation, such as that of exempting

mineral lands from the operation of the grants. The government offered

to convey certain land to the railroad free of charge when it undertook

to stimulate railroad building in California, but it did not include

mineral land in this offer, except coal land and iron land. Not only

this, but the exception of mineral lands was repeated in the patents

later issued by the Department of the Interior, and in such patents the

words, “excluding and excepting all mineral lands should any such be

found in the tracts aforesaid,” were used, making the exemption apply

to future discoveries as well as to discoveries occurring before the

patents were issued. Evidently the legislature and the land office

intended to limit the donations to the Southern Pacific by excluding

unknown and immeasurable increments of value in so far as this might be

done. Coal and iron were left, for the reason that these minerals were

intimately connected with the construction and operation of the road.

Test Case

In 1910, one Edmund Burke filed a bill in equity in the Circuit Court

of the United States for the Southern District of California, in

which he challenged the title of the railroad to oil lands in an area

covering five sections in Fresno County, California. This was a test

case. Disregarding minor points, the larger questions at issue were the

following:

The first question was as to whether or not oil was a mineral. The

plaintiff said that it was a mineral, the defendant said that it was

not. If oil was a mineral, then the railroad could not obtain title

under the land-grant laws to land which was known to contain oil at the

time the patent was applied for. If oil was not a mineral, there was no

limitation. Now matters of definition always cause trouble. The word

“mineral” is sometimes associated with metallic ores, a notion which

would not include a resultant from the decomposition of organic matter

such as California petroleum. Indeed, the Secretary of the Interior

once held that the word “mineral” embraced only the more precious

metals, such as gold, silver, cinnabar, etc., although on rehearing

this view was rejected. Common usage includes more than the metallic

ores, and the courts have considered as mineral such articles as clay,

coal, and marble, and even deposits such as guano.[601] When the matter

was presented to it, the United States Supreme Court followed common

usage and held that petroleum was a mineral.[602]

The second point had to do with the effect of a patent. It was shown

that the Southern Pacific had received patents as early as 1892 to

lands which ultimately proved to contain petroleum, and there was

dispute as to whether this subsequent discovery invalidated title to

property once patented. On this point, fortunately, the law was clear.

Quoting the Supreme Court:

The settled course of decision ... has been that the character of land

is a question for the Land Department, the same as the qualifications

of the applicant and his performance of the acts upon which the

right to receive the title depends, and ... [that] when a patent

issues it is to be taken upon a collateral attack, as affording

conclusive evidence of the non-mineral character of the land and of

the regularity of the acts and proceedings resulting in its issue, and

upon a direct attack, as affording such presumptive evidence as to

require plain and convincing proof to overcome it.

The Supreme Court therefore held that the Southern Pacific was secure

in its possession of lands to which it held patent, unless fraud could

be shown, and this irrespective of any saving clause in the patent

itself, and without regard to the nature of the investigation by which

the Land Office had originally satisfied itself as to the character of

the land.[603]

Elk Hills Suit

The effect of the rulings of the Supreme Court in the test case of

Burke v. Southern Pacific was not only to cause the dismissal of the

pending suit, but to make it evident that the government must show

fraud on the part of the railroad company before the company’s title

could be disturbed. The holding of the court that oil lands were

mineral lands was, however, an important victory for the government. It

was under these circumstances that the federal government instituted a

fresh series of suits. Of these, one suit called in question the title

of the Southern Pacific to some 6,109 acres of land in the Elk Hills

region of southern California, held under a patent issued December

12, 1904. The other suits attacked the legality of the railroad’s

possession of substantially all its remaining oil lands, obtained at

various dates from 1892 to 1902. The value of the lands involved in

the second proceedings was estimated by the government as in excess

of $421,000,000. Counsel alleged that the company’s land agents,

Messrs. Eberlein and Madden, had accompanied the lists, which they had

submitted to the government for patenting, with affidavits stating that

the lands were not mineral lands, although both agents knew at the

time the patents were applied for that the lands in question contained

oil. This charge, if substantiated, amounted to a showing of fraud. In

both cases the government sought to show that the presence of oil upon

the lands sought was a matter of common knowledge, and that there was

reason to believe that the company was fully cognizant of the facts.

Most of the sensational testimony taken in the oil land cases appeared

in the so-called Elk Hills case. Mr. Eberlein here figured as the

land agent for the Southern Pacific. Omitting again all relatively

unimportant detail, it appeared that Mr. Eberlein had filed an

affidavit with the Land Office in November, 1903, in which he swore to

two pertinent facts: first, that he had caused the lands for which the

railroad applied to be carefully examined by the agents and employees

of the company as to their mineral or agricultural character; and

second, that to the best of his knowledge and belief, none of the lands

returned in the list were mineral lands. These statements had been

repeated in September, 1904, when a substitute list was filed.

In the face of these sworn assertions, the United States Supreme Court

later found that Mr. Eberlein had not examined the lands in question,

nor had he caused them to be examined by others. Indeed, Eberlein

had even objected to the examination of the lands. He had protested

verbally to Judge Cornish, vice-president of the Southern Pacific

Company against examination, and to Mr. Markham, its general manager,

and in 1908 he had summed up his repeated objections by writing to the

assistant land agent of the company as follows:

The examination of our S. P. lands not yet patented by our oil experts

must be stopped as information that they may obtain or give as to

mineral character prior to patent will forever prevent our getting

title.... Mr. Dumble (the company’s geologist) and his men should not

be furnished by us with any data whatever except as to _patented_

lands. For reasons above given such information will be embarrassing

to them and us and may make them witnesses against this company in

mineral contests hereafter.[604]

The most that can be said for such an epistle is that it indicated an

anxiety to keep within the letter of the law.

Government Victory and Defeat

Besides falsely swearing that he had made an examination of the

lands involved in the Elk Hills case, Mr. Eberlein made the positive

statement in his affidavit that none of the lands covered by his

application were mineral lands, in so far as he was informed. Now in

this matter it is clear that the evidence before Mr. Eberlein, such as

it was, pointed to a mineral and not to a non-mineral content of the

land in question. This evidence consisted primarily in the results of

work of Southern Pacific geologists in the general region of which the

Elk Hills were a part, and in the presence there of a certain number

of producing wells. It is on record that in 1902 the Southern Pacific

withdrew from sale many of its patented lands which surrounded or were

adjacent to the land in controversy “because they were in or near oil

territory.” The following year the company decided to lease such of

its lands as were considered valuable for oil purposes to a subsidiary

company—the Kern Trading and Oil Company. The proposed lease was laid

before Eberlein in August, 1904. He at once objected. In a letter to C.

H. Markham, general manager of the Southern Pacific Company and second

vice-president of the Southern Pacific Railroad Company, Eberlein set

forth (September 10, 1904) the reasons for his opposition in these

words:

In addition to this there is a very urgent reason for delaying the

execution of these papers. We have selected a large body of lands

interspersed with the lands sought to be conveyed by this lease and

which we have represented as non-mineral in character. Should the

existence of this lease become known, it would go a long way toward

establishing the mineral character of the lands referred to and which

are still unpatented.[605]

A similar letter addressed the week before to Judge Cornish in New York

contained arguments of a similar nature. The protests were heeded, and

the leases of lands in the McKittrick and Coalinga districts were held

up. It was recognized, moreover, that the matter was a delicate one,

and the papers relating to the proposed leases were placed in a special

and private file separate from the general file of the land department

of the railroad company. Summing up the evidence in the case, the

United States Supreme Court later observed that the natural, if not the

only, conclusion from the facts was that in pressing the selection the

officers of the railroad company were not acting in good faith, but

were attempting to obtain the patent by representing that the lands

(covered by the Elk Hills litigation) were not mineral when they

believed the fact was otherwise.[606] The decree of the United States

Supreme Court requiring the cancellation of the railroad patents to the

6,000 acres of land in the Elk Hills district was given on November 17,

1919.

Three months before this Supreme Court decision, Judge Bledsoe, in

the District Court for the Southern District of California, dismissed

a suit challenging title to some 165,000 acres of land in the oil

territory on the west side of the San Joaquin Valley.[607] This suit

represented a consolidation of the oil land suits other than those

included in the Elk Hills case. Perhaps 156,000 of the acres under

litigation were claimed by the railroad. Cases are seldom alike, and

the Bledsoe case differed from the Elk Hills controversy in several

important details. In this case, for example, it appeared that the

railroad had sold lands in the disputed territory at agricultural

prices—a policy which it presumably would not have followed had it

believed that these lands had mineral value. There was also lacking

much of the direct evidence which had helped to demonstrate the fact

that Mr. Eberlein had distorted the truth in his representations to the

government. On the other hand, the refusal of Judge Bledsoe to believe

that men like the general manager of the Southern Pacific, its land

agent, and its vice-president would lend themselves to fraud, is less

impressive after a perusal of the Elk Hills material. The government

has announced that it will not appeal from Judge Bledsoe’s ruling—a

decision which, on the face of things, appears to be a mistake.

Sale of Oil Lands

The most recent development in connection with the Southern Pacific

oil lands is associated with the organization of the Pacific Oil

Company. The formation of this company was announced in March, 1921.

It purchased from the Southern Pacific Land Company, for the sum of

$43,750,000, about 259,000 acres of lands in California, most of which

were proven oil lands, and 200,690 shares (50.48 per cent) of the

capital stock of the Associated Oil Company. This was the whole of

the Southern Pacific interest in the oil fields. The Southern Pacific

Company provided the funds for the purchase by subscribing to 3,500,000

shares of the Pacific Oil Company at $15 per share, but the railroad

disposed of its newly acquired shares by extending to holders of its

own stock the right to purchase Pacific Oil stock at $15 per share,

one share of stock of the new company for each share of the Southern

Pacific Company stock so held. This transaction will transfer the

ownership of the railroad oil lands from the Southern Pacific Company

to the stockholders of that company as fast as the subscription rights

are taken up. Commenting on the plan for the separation of the oil

and railroad properties, President Sproule observed that the plan was

simply responsive to the spirit of the times. It seems likely, however,

that it will have the additional result of preventing further action

tending to disturb the railroad title. The president of the Pacific

Oil Company is Mr. Shoup and its directors are men of influence in the

East.[608]

Timber Land Grant

This summary discussion of the oil land litigation in California brings

us to the last of the great cases with which the Southern Pacific

has, in recent years, been concerned, namely, to the dispute between

the federal government and the Oregon and California Railroad over

the administration of timber lands in Oregon. By the Act of July 25,

1866,[609] Congress authorized the California and Oregon Railroad to

build a railroad and telegraph line in the state of California from a

point on the Central Pacific in the Sacramento Valley to the northern

boundry of the state. The same act empowered “such company, organized

under the laws of Oregon, as that state should designate,” to construct

a railroad from Portland, Oregon, to a junction with the California

and Oregon upon the Oregon-California boundary line. The legislature

granted to the company mentioned a right-of-way, and in addition ten

alternate sections of public land on each side of its track.

At the time Congress acted, there was no company in Oregon in condition

to become the beneficiary of the grant. In 1867, however, the Oregon

Central Railroad Company of Salem was incorporated, and the following

year this railroad received the needed legislative designation. It

appears that there was some dispute between the Oregon Central of Salem

and another organization known simply as the Oregon Central Railroad

Company, and that the doubt as to which of these two was entitled to

receive the granted lands in Oregon delayed the filing of the necessary

formal assent to the terms of the Congressional Act of 1866. In 1869,

therefore, Congress extended the time for the filing of the required

assent.[610]

At the time this privilege was accorded, however, Congress introduced

an important limitation to its previous action, by providing that the

lands granted by the Act of 1866 should be sold to actual settlers

only, in quantities not greater than 160 acres to one purchaser, and

for a price not exceeding $2.50 per acre. So amended, the Act of 1866

was accepted by the Oregon Central, and on March 16, 1870, the rights

acquired were assigned to the Oregon and California Railroad. In 1887,

the Oregon and California was absorbed by the Southern Pacific.

As a result of the legislation described, the Oregon and California

Railroad Company received a total grant estimated at 3,821,902 acres,

which it held subject to the requirement that it should dispose of the

property to actual settlers, in small lots, at prices not exceeding

$2.50 per acre. Now the simple facts with regard to the company’s

administration of this estate are that it did not limit the price

which it charged to $2.50 per acre, that it took no pains to ascertain

whether or not, purchasers of its lands were actual settlers, and that

it sold in whatever quantities were convenient from the point of view

of revenue. Between 1894 and 1903, to take the period when the company

neglected its obligations most grossly, there were sales at prices

ranging from $5 to $40 an acre, and in amounts which in one instance

reached the figure of 45,000 acres to a single purchaser. Out of

820,000 acres sold during this period, approximately 370,000 were sold

to 38 purchasers in quantities exceeding 2,000 acres to each purchaser,

and at prices higher than $2.50. These sales, according to the Supreme

Court, were to persons other than actual settlers, and for other

purposes than settlement. On January 1, 1903, the company reached the

climax of its disobedience to law by withdrawing all of its lands from

sale and refusing to accept offers for any of them, asserting that they

were timber lands and unsuitable for settlement. In 1911 there were

2,360,492.81 acres unsold, of which 2,075,616.45 had been patented.

Only a comparatively small part of the grant, that is to say, had been

disposed of.

Land Rebought by Government

It is somewhat amazing that so clear a violation of the terms under

which the Oregon and California held its land grant should have passed

unchallenged. Nor can the obstinacy of the company’s defense fail

to excite surprise. When the Attorney-General of the United States

sought to have the Oregon and California grant declared forfeit[611]

because of the company’s disregard of the terms of the law, it proved

necessary to litigate for eight years, to take seventeen volumes of

testimony, to consider 2,500 pages of briefs, and to obtain three

court decisions and the enactment of a new law before the matter could

be finally set at rest. It is unnecessary to go into the elaborate

record, or the arguments by which counsel sought to demonstrate that

the restrictive provisions of the Act of 1869 were beyond the power

of Congress to enact, or to discuss the contentions that breaches of

the law had been condoned and that the covenants were not in any case

enforceable. The case was considered by the Circuit Court of the United

States for the District of Oregon in 1911,[612] and by the Supreme

Court of the United States in 1915.[613] Both courts pronounced the

restriction on the alienation of Oregon and California lands binding.

The controversy was at last settled by a new Act of June 9, 1916, in

which Congress resumed possession of the unsold lands appertaining to

the grant, while appropriating the sum of $2.50 an acre for these lands

as a payment to the railroad company.[614]

Under the terms of the act, the Secretary of the Interior was directed

to ascertain the exact number of acres of land patented to the railroad

company, and the number of acres of unpatented land which the company

was entitled to receive in the future according to the original grants.

The Secretary was then to calculate the value of all this land at $2.50

per acre, and to pay over the amount so ascertained to the railroad

company from time to time from the proceeds of future sales of the

lands or of the timber upon it, after deducting from the valuation the

amounts already received by the railroad and by its predecessors in

interest. The intent was clearly to allow to the railroad $2.50 per

acre of the original grant, no more and no less, taking full account of

the sums already received by the company. The constitutionality of the

law was later upheld by the Supreme Court.[615]

Chapters on the History of the Southern Pacific · 第 23 / 25 章