The opinion of the court was delivered by: WILLSON
Plaintiffs claim to be the owners of the natural gas in and on 1100 acres of land, being Warrant 5343, situate in Benezette Township, Elk County, Pennsylvania, in this judicial district. In this civil action they seek to recover damages from the defendants for the wrongful taking and removal of the natural gas and for the recovery of the possession of the mineral estate in the land, and to restrain the defendants from further trespassing upon the minerals, particularly the natural gas.
At an earlier stage in this lawsuit, defendants filed motions to dismiss, raising questions of jurisdiction and venue. See D.C., 128 F.Supp. 885. Each of the parties has now filed motions for summary judgment under Rule 56, Fed.Rules Civ.Proc. 28 U.S.C.A. Defendants' motion was filed on October 11, 1957 and plaintiffs' motion was filed October 21, 1957. Oral argument has recently been held and briefs have been filed. Defendants' motion will be granted.
Since the inception of the suit, defendants have maintained that the records in the various county offices of Elk County show an unbroken chain of title from the common source of title to and in them. In prior proceedings, defendants sought an order of this court requiring plaintiffs to file an abstract of their title as is done in state ejectment practice (Rule 1054, Pennsylvania Rules of Civil Procedure, 12 P.S.Appendix). On this point, however, my ruling was as indicated in 128 F.Supp. 885, that the same result could be achieved under Rule 36, by the filing of requests for admissions on the part of both parties. Thereafter extensive requests for admissions were filed by each side and the parties were heard on their several objections to the opposing party's requests. The result has been that by the discovery process, that is, the requests for admissions and the hearings thereon, the records of Elk County are admitted for all purposes in this civil action. The defendants rely upon the title shown of record in the various Elk County offices. Plaintiffs concede the matters shown by the records in Elk County, but sharply dispute the construction and interpretation placed upon them by the defendants. The fact that the property has been drilled and that millions of dollars worth of gas has been removed from the land is admitted. On the part of plaintiffs it should be stated also that the admissions show the present plaintiffs to be the successors to the title to the gas, if any, acquired by Thomas E. Proctor, Sr.
For convenience here, I have attached two Appendices to this opinion. Appendix A is the assessment record of this unseated land taken from the records of Elk County, commencing in the year 1870 and continuing uninterruptedly through the year 1954. The complaint was filed in September 22, 1954. The assessment record is not in dispute whatsoever and appears as part of the admissions.
Appendix B is made up of the chain of title appearing of record in the county offices of Elk County, relating to the title to Warrant 5343 for the period which is involved in this litigation. The parties agree that the matters shown in Appendix B appear of record in Elk County.
Jurisdiction depends upon diversity of citizenship. Plaintiffs seek to enforce rights under the laws of Pennsylvania only, the land being situate in Pennsylvania. The land was drilled by the gas companies and the gas removed and sold in Pennsylvania. The doctrine, of course, is that as the subject matter is not governed by the Federal Constitution or by Acts of Congress, the applicable law in this action is the law of Pennsylvania. See Guaranty Trust Company of N.Y. v. York, 326 U.S. 99, 65 S. Ct. 1464, 89 L. Ed. 2079. Rule 81(e) of the Federal Rules of Civil procedure provides:
The claim for relief in this case involves title to real property. Under the older Pennsylvania state practice, at least, the action would be one of ejectment accompanied by a claim for mesne profits because defendants do not deny that they have drilled and removed 10,881,625 MCF of gas from the property. The point is that both under Federal and state practice, in a situation where the record title is undisputed, the question is one of law. The Court of Appeals of this circuit in Toebelman v. Missouri-Kansas Pipe Line Co., 3 Cir., 130 F.2d 1016, at page 1018, says:
'It is now well settled that summary judgment may be entered for either party if the pleadings, depositions, admissions on file and affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Civil Procedure Rule 56. Stated conversely, a substantial dispute as to a material fact forecloses summary judgment.'
A decision of the Supreme Court of Pennsylvania is to the same effect: First Pool Gas Coal Co. v. Wheeler Run Coal Co., 301 Pa. 485, 152 A. 685, where the headnote says:
'When the controlling question raised by the pleadings, in an action of ejectment, is one of law, the court may enter judgment thereon in favor of the party legally entitled thereto, under the Acts of June 7, 1915, P.L. 887, and June 12, 1919, P.L. 478 (12 P.S. 1548).'
And, on page 487 of 301 Pa., on page 686 of 152 A., the court says:
'We have often held that when the controlling question raised by the pleadings in an action of ejectment is one of law, the trial court may enter judgment thereon in favor of the party legally entitled thereto. See Porter v. Hayes, 293 Pa., 194, 142 A. 282; Schoch v. American International Corp., 286 Pa. 181, 133 A. 155; Gailey v. Wilkinsburg Real Estate & Trust Co., 283 Pa. 381, 129 A. 445; Levy v. Seadler, 272 Pa. 366, 116 A. 294; Shaw v. Cornman, 271 Pa., 260, 114 A. 632; Glenn v. Stewart, 265 Pa. 208, 108 A. 599. This is a wise provision of the statute, for where the pleadings clearly show the case turns on a question of law it is vain to invoke the aid of a jury.'
Both parties agree that the title to the warrant of land is out of the Commonwealth of Pennsylvania and that the common source of title is that in Bigler, Powell and Cardon, Excerpt No. 1. The parties also agree that the title of Thomas E. Proctor, Sr. was from Bigler, et al. by the deed of June 5, 1893, Excerpt No. 2.
The assessment record shows, for the year 1892, the unseated land, Warrant 5343, in Benezette Township, in the name of Cook and Pardee, previous owners. At the time Thomas E. Proctor, Sr. got his title, Excerpt No. 2, the 1892 taxes were due and unpaid and were a lien on the land comprising the warrant. Excerpts Nos. 3, 4, 5, 6, 8 and 9 show the following:
On June 11, 1894, Warrant 5343, assessed on the unseated list in the name of Cook and Pardee, was sold by the Treasurer of Elk County, Pennsylvania, to George W. Childs for $ 113.70, which was the amount of the arrearages of said taxes for the year 1892, plus costs.
The price of $ 113.70 bid for said Warrant 5343 at the tax sale held June 11, 1894, was paid by said George W. Childs to the Treasurer of Elk County, Pennsylvania.
The Treasurer of Elk County, Pennsylvania, on July 3, 1894, acknowledged his deed for said Warrant 5343 to George W. Childs in open court of Common Pleas for Elk County, Pennsylvania, of which the record appears in the Prothonotary's Office for said County in Treasurer's Acknowledgment Book B, pages 216 and 217.
The Treasurer of Elk County, Pennsylvania, delivered his deed for said Warrant to George W. Childs, which is recorded in the Office of the Recorder of Deeds for Elk County, Pennsylvania, in Deed Book W, page 468.
There was no redemption of said Warrant 5343 from said tax sale of June 11, 1894.
George W. Childs and wife on June 28, 1898, assigned all their right, title and interest in said Treasurer's deed for Warrant 5343, containing 1100 acres, to Elk Tanning Company, which is recorded in Elk County Deed Book 2 at page 480.
On May 25, 1903, Elk Tanning Company conveyed to Central Pennsylvania Lumber Company several tracts of land, inter alia, Warrant 5343, containing 1100 acres situate in Benezette Township, which is recorded in the Office of the Recorder of Deeds for Elk County, Pennsylvania, in Deed Book 55, page 381.
Excerpts 10 through 19 show the following:
On June 8, 1914, Warrant 5343 was sold by the Treasurer of Elk County, Pennsylvania, for arrearages of taxes for the years 1912 and 1913 assessed on the unseated list in the name of Central Pennsylvania Lumber Company, to C. H. McCauley, Jr., for taxes and costs of $ 171.60.
The Treasurer of Elk County, Pennsylvania, on July 6, 1914, acknowledged his deed for said Warrant to C. H. McCauley, Jr., in open court of Common Pleas for Elk County, Pennsylvania, of which the record appears in the Prothonotary's Office for said County in Treasurer's Acknowledgment Book B, pages 290 and 291.
The deed from the Treasurer of Elk County, Pennsylvania, to C. H. McCauley, Jr., for said Warrant 5343, is recorded in the Office of the Recorder of Deeds for Elk County, Pennsylvania, in Deed Book 138, page 99.
There was no redemption of said Warrant 5343 from said tax sale of June 8, 1914.
By deed dated December 6, 1920, recorded in the Office of the Recorder of Deeds for Elk County, Pennsylvania, in Deed Book 80, page 451, Central Pennsylvania Lumber Company conveyed said Warrant 5343 containing 1100 acres to Andrew Jackson Eisenhuth. Said deed contained no exceptions or reservations.
By deed dated February 1, 1921, Calvin H. McCauley, Jr., and wife quitclaimed all right, title and interest acquired by said Treasurer's deed dated June 8, 1914, to Andrew Jackson Eisenhuth and Minnie Eisenhuth, his wife, which is recorded in the Office of the Recorder of Deeds for Elk County, Pennsylvania, in Deed Book 85, page 518.
By deed dated June 8, 1921, Andrew Jackson Eisenhuth and wife conveyed said Warrant 5343 to The Sagamore Big Game Club, which is recorded in the Office of the Recorder of Deeds for Elk County, Pennsylvania, in Deed Book 81, page 217.
On August 31, 1933, the Sagamore Big Game Club leased 1100 acres comprising said Warrant 5343, for oil and gas purposes to R. W. Howard and Belle I. Howard, which is recorded on September 22, 1933, in the Office of the Recorder of Deeds for Elk County, Pennsylvania, in Miscellaneous Book M, page 91.
On May 31, 1940, The Sagamore Big Game Club leased for oil and gas purposes to The Sylvania Corporation a tract of land in Benezette Township, bounded and described as follows: North by lands of Warrant 5342, East by lands of Warrant 5388, South by lands of Warrant 5344, and West by lands of Warrant 5340, recorded on June 7, 1940, in the Office of the Recorder of Deeds for Elk County, Pennsylvania, in Miscellaneous Book M, page 396.
The Sylvania Corporation, in pursuance of said lease of Warrant 5343 from The Sagamore Big Game Club, entered on the lands comprising said Warrant, and between April 4, 1953, and June 26, ...