Before GOODRICH and STALEY, Circuit Judges, and STEEL, District Judge.
This is an appeal from a summary judgment for defendants.
At stake is the ownership and right to possession of natural gas underlying unseated lands*fn1 known as Warrant 5343 in Elk County, Pennsylvania. A discovery well completed in April 1953 and seven subsequent wells, the last of which was completed in September 1954, demonstrated that these lands had substantial value because of the existence of subsurface natural gas in commercial quantities. The present action followed.
Plaintiffs claim to be either the legal or equitable owners of the natural gas underlying and produced and sold from the lands. Defendants are rival claimants who are alleged to be trespassers. They comprise persons and corporations claiming ownership of the warrant with royalty rights in the gas, a lessee-producer, and a purchaser of the gas. Plaintiffs seek possessory, monetary and injunctive relief, and an adjudication that defendants hold the gas as trustees for plaintiffs. Plaintiffs made timely demand for a trial by jury.*fn2
All parties have properly relied upon Pennsylvania law as dispositive of their rights, since the sole basis of jurisdiction of the District Court was diversity of citizenship.
In determining whether summary judgment for defendants was properly granted, we must accept as true all facts and inferences therefrom which tend to support plaintiffs' claim regardless of any denial thereof by defendants. It is not our province to resolve disputed questions of fact, but only to determine whether genuine issues of material fact exist. The Court below found, and we think correctly, that if all of the facts and inferences therefrom relied upon by plaintiffs were accepted as true, defendants were entitled to judgment as a matter of law.
Preliminarily, it is desirable to say a word about the record upon which our decision will be based. Many of plaintiffs' arguments pertaining to its equitable interest in the gas rest upon unsworn statements by plaintiffs' attorneys as to the contents of documents and the existence of facts detailed in Plaintiffs' Statement of Position and Plaintiffs' Reply to Defendants' Statement of Position. These were filed for use at a pre-trial conference at a time when a trial was in contemplation. These self-serving unverified statements of fact asserted by plaintiffs are not the type of proof which F.R.Civ.P. Rule 56(c), 28 U.S.C. requires for the resolution of a motion for summary judgment. Nor are the unsworn statements concerning the contents of documents adequate under Rule 56(e). Nevertheless, it appears from the position of the defendants at pre-trial, the decision of the Court below, and the brief of the defendants in this Court, that the defendants, both in this Court and in the District Court, were willing to accept as true for the purpose of testing defendants' motion for summary judgment all of the factual statements contained in plaintiffs' statements of position.*fn3 Accordingly, we shall likewise do so.
An itemization of each link in the chain of title through which the parties claim is not necessary. It is enough to say that plaintiffs base their title upon that of their deceased ancestor, Thomas E. Proctor, Sr., to whose rights, if any, they have succeeded. The title and other interests claimed by defendants derive through one G. W. Childs who purported to purchase Warrant 5343 at a tax sale in 1894 immediately prior to which Proctor was the owner.
To prevail, plaintiffs must first establish that Proctor's title, either legal or equitable, survived the tax sale. A plaintiff seeking to recover the possession of an estate in land must do so upon the strength of his own title, not upon the imperfections in the title of a defendant. Taylor v. Taylor, 1910, 228 Pa. 424, 77 A. 663; Zeller v. American International Corp., 1921, 271 Pa. 472, 114 A. 778; Henry v. Grove, 1947, 356 Pa. 541, 52 A.2d 451. Subsurface gas in place is an estate in land. F. H. Rockwell & Co. v. Warren County, 1910, 228 Pa. 430, 77 A. 665.
On June 5, 1893 Proctor acquired title to Warrant 5343 from Bigler, et al. At the time the taxes for 1892 and 1893 had been assessed against the warrant as unseated lands, were unpaid, and constituted a lien upon the warrant. On June 11, 1894 the treasurer of Elk County sold the warrant for the 1892 taxes. G. W. Childs was the purchaser and he received a deed from the treasurer dated June 11, 1894.
The tax sale and the treasurer's deed, if valid, conferred upon Childs a fee simple title. Act of April 3, 1804, P.L. 517, 4 Sm.L. 201, § 2; White v. First National Bank of Emporium, D.C.M.D.Pa.1938, 24 F.Supp. 290, 293. This included not only the surface of the land but subsurface natural gas as well. See Powell v. Lantzy, 1896, 173 Pa. 543, 34 A. 450.*fn4 On June 28, 1898 Childs assigned his tax deed to Elk Tanning Company. The claim of defendants rests upon the tax sale to Childs, the assignment of the tax deed to Elk Tanning Company, and subsequent conveyances and leases.
On October 1, 1894, three months after the tax sale, Proctor purported to convey the same warrant to Elk Tanning Company by a deed which reserved to himself and to his heirs and assigns, all of the natural gas in, upon or under the lands. Plaintiffs base their claim to the natural gas on the title which Proctor acquired from Bigler and on the reservation in Proctor's deed to Elk Tanning Company, even though the latter deed was not executed until three months after the delivery of the tax deed to Childs. Plaintiffs argue that the gas reservation in the Proctor deed was valid because the prior tax deed to Childs was invalid and hence Proctor's title was not divested thereby. The invalidity of the tax deed, plaintiffs say, was due to the failure of the treasurer to acknowledge the tax deed in open court as was required by Section 2 of the Act of April 3, 1804, P.L. 517, 4 Sm.L. 201. This omission is established, plaintiffs assert, by the failure of the "Trial List and Court Minutes" of the Court of Common Pleas of Elk County to make any reference to the acknowledgement. ...