The bill of complaint in the Pacific Land & Improvement Company against the Elwood Oil Company alleges, in substance: That the selection by complainant's predecessor in interest, one J. R. Johnston, on the 23d day of December, 1899, under the act of congress of June 4, 1897, entitled "An act making appropriations for sundry civil expenses of the government for the fiscal year ending June 30, 1898, and for other purposes," of the E. 1⁄2 of the S. W. 1/4 of section 4 in township 29 S., range 38 E., M. D. B. & M., containing 80 acres of land, and no more, in lieu of a tract of 80 acres of nonmineral land mcluded within the limits of a public forest reservation, for which the United States has issued to him a patent, and which the said Johnston on December 20, 1899, under and pursuant to the provisions of said act of June 4, 1897, relinquished to the United States by deed of conveyance recorded in the office of the county recorder of the county in which said tract is situated, which Johnston delivered at the time of his lieu selection, on the 23d day of December, 1899, to the register and receiver of the land office at Visalia, Cal., within which the selected land is situate, which deed, indorsed as recorded as aforesaid, the said Johnston at the said time filed in said local land office, together with a full and correct abstract of his title to the relinquished tract, duly certified as such by the county recorder of the county in which the tract is situated, showing him to be the owner thereof in fee, free from any incumbrance, at the time of such relinquishment, together.with his nonmineral affidavit, and together with his selection of the E. 1⁄2 of the S. W. 4 of said section 4 in lieu of the tract relinquished. That on the said 23d day of December, 1899, said register and receiver duly accepted and filed said deed, abstract of title, nonmineral affidavit, and selection of the said Johnston, and duly entered such selection upon the official records of his office. That the register did then and there certify that the tract so selected by the said Johnston was free from conflict; that there was no adverse filing, entry, or claim thereto; that the selected lands were, at the time of selection, unappropriated, vacant public lands of the United States, open to settlement, and returned by the surveyor general as agricultural in character; that such lands, when selected, did not contain any known minerals or known petroleum or known mineral oils; that no mineral, petroleum, or known mineral oil, or mineral substance of any kind, had ever been discovered within the limits thereof. That on April 11, 1900, Johnston conveyed the tract so selected, and all his right, title, and interest therein, to the complainant, who has ever since been the owner thereof. That the defendants based their claim to the tract in controversy upon a certain pretended placer mining location covering the S. W. 4 of said section 4, alleged to have been made on June 11, 1899, under the mining laws of the United States, by eight named persons, whose interests the defendants claimed to have acquired by mesne conveyances. That said location was void for the reason that no discovery of oil or other mineral was made within its limits until after the selection by said Johnston as aforesaid. That, after the lands in controversy were selected by said Johnston, certain of the defendants filed in the local land office at Visalia a written, verified protest against such selection, wherein it was alleged that said lands were not subject to selection under said act, for the reason that the same was mineral land, and was included within the boundaries of a valid placer location. That said protest prayed that the commissioner of the general land office order a hearing to determine the mineral character of said lands, and that the selection thereof made by said Johnston be rejected. That said protest is pending before the commissioner of the general land office. That the same is insufficient to justify a hearing being ordered by the land department to determine the character of said land, or to change its classification as fixed by the report of the surveyor general, for the reason that the same does not show that there was any known mine or any known salines or any known or existing petroleum wells or known petroleum deposits on the selected land at the time of its selection, showing the same to be more valuable for mining than agricultural or other purposes. That notwithstanding Johnston acquired the complete equitable title to the land in controversy by his selection thereof, and notwithstanding that he was entitled to the complete and uninterrupted enjoyment

and possession of the same, the defendants, against the will of the said Johnston, knowing that said land had been selected by him under the act of congress aforesaid, and knowing his rights in the premises, without any right in themselves, or any of them, did, on or about the 6th day of January, 1900, by themselves and their employés, without right, and wrongfully and unlawfully, and without the knowledge or consent of said Johnston, and in disregard of his rights, enter upon and became possessed of the lands in question, and erected a derrick and other machinery thereon, and proceeded to excavate the soil thereof and to bore a well therein, seeking for petroleum oil therein, for the purpose of taking the same, if found, to their own use, and removing the same. That afterward, about the last of January, 1900, the defendants found in said well petroleum oil in profitable quantities, and that they are engaged in wrongfully and unlawfully pumping large quantities of oil from said well, and removing the same from said lands, and selling and disposing of and marketing the same, and appropriating the proceeds thereof to their own use, and will continue to do so, to the great waste and irreparable injury of said premises, unless restrained therefrom by order of injunction, and that, unless restrained by order of the court, the defendants will bore other wells upon said premises, and, if successful in obtaining petroleum therein, will take such petroleum therefrom and market the same for their own use and benefit, and that complainant has no complete or adequate legal remedy against the wrongs complained of. The prayer of the bill is for a temporary injunction, restraining the defendants from further boring of wells upon the premises and the further removing of oil therefrom, and that upon the final hearing such injunction be made perpetual. It also asks a decree adjudging that complainant has the full, complete, and equitable title to the premises; that the adverse claims of the defendants thereto are wholly without right and unfounded; that a receiver be appointed to take possession of the property, and preserve the same and the products thereof until the further order of the court; and for such other relief as may be proper in the premises. The act of congress of June 4, 1897, before referred to, contains, among other things, the following provisions: "That in cases in which a tract covered by an unperfected bona fide claim or by a patent is included within the limits of a public forest reservation, the settler or owner thereof may, if he desires to do so, relinquish the tract to the government, and may select in lieu thereof a tract of vacant land open to settlement not exceeding in area the tract covered by his claim or patent; and no charge shall be made in such cases for making the entry of record or issuing the patent to cover the tract selected: provided further, that in cases of unperfected claims the requirements of the laws respecting settlement, residence, improvements, and so forth are complied with on the new claims, credit being allowed for the time spent on the relinquished claims." 30 Stat. 36. To the bill of complaint the defendants interposed a demurrer upon the grounds: "(1) That enough does not appear upon the face of the bill to show this court's jurisdiction of the subject-matter of the suit; (2) that complainant has not, by its said bill, stated any cause entitling it to any relief against the defendants, or either of them; (3) that the said bill is altogether multifarious; (4) that it appeareth by the plaintiff's own showing, by the said bill, that it is not entitled to the relief prayed by the bill against these defendants, or either or of any of them, nor to any relief against these defendants, or either of them or any of them,"-and prays the judgment of the court whether they, or either of them, should be compelled to make any answer to the said bill. (C. C.) 104 Fed. 20.

Shirley C. Ward, Jefferson Chandler, and J. W. Swanwick (John H. Mitchell, John M. Thurston, and T. C. Van Ness, of counsel), for appellants.

Frank H. Short, J. S. Chapman, and C. Linkenbach (George W. Baker, of counsel), for appellees.

Before GILBERT and MORROW, Circuit Judges, and HAWLEY, District Judge.

HAWLEY, District Judge, after stating the foregoing facts, delivered the opinion of the court.

The legal questions involved in these cases on appeal are identical. The facts are substantially the same. There is no difference between them, so far as the demurrer to the bill is concerned, except in two particulars. The demurrer in the Pacific Land & Improvement case makes as one of its objections to the bill that it is multifarious. No such objection is urged against the bill in the Cosmos Exploration case. In the Pacific Land & Improvement case there was no amended application made in the land office. It stands upon the single application made on the 23d day of December, 1899. Following the course adopted by appellant's counsel, we shall confine the discussion to the Pacific Land & Improvement case, because, as was said by the court below, "these cases were heard together, and may be so considered and determined, as the principal questions involved are common to them both."

Upon the filing of the bill the court made an order requiring defendants to show cause, if any they had, why a preliminary injunction should not be granted as prayed for. The defendants appeared and interposed a demurrer to the bill. Upon the hearing of the rule to show cause a large number of affidavits were presented by both sides. The defendants in the meantime had answered the bill, and their answers were used as affidavits upon the hearing of the rule to show cause. The demurrer was argued at the same time and submitted. Thereafter the court rendered its decision and decree, on September 24, 1900, "that the application for a receiver and for an injunction be, and the same hereby is, denied; that the demurrer be, and hereby is, sustained; and that the bill of complaint be dismissed at complainant's costs,"-and on September 26th entered its regular decree dismissing the bill. This appeal is taken only from the order and decree sustaining the demurrer and dismissing the bill. The discussion of these questions will be confined to the facts alleged in the bill.

Did the court err in sustaining the demurrer? Did it err in dismissing the bill? Does it appear upon the face of the bill that the circuit court had jurisdiction of the parties and the subject-matter of the suit? The contentions of the respective parties are clearly outlined by the several allegations contained in the bill of complaint, and the first and most important question that arises herein is whether or not appellant has by such averments "stated itself out of court." This is the vital point upon which the merits of this case, in so far as the demurrer is concerned, hinges.

The demurrer, interposed by defendants, questions the jurisdiction of the circuit court. We are of opinion that the federal courts are without jurisdiction to entertain a suit to determine the respective rights of the parties to any land to which the title remains in the government of the United States, in regard to which, as shown by the averments in the present bill, a contest between the parties is pending in the land department of the government. In Savage v. Worsham (C. C.) 104 Fed. 18, Judge Ross said:

"It would seem from the bill that the title to the land in question is still in the United States, and that the contest between complainant and respondent in respect to it is yet pending in the land department. If so, it is clear that the suit cannot be maintained. After the United States has parted with its title, and the individual has become vested with it, the equities subject to which he holds may be enforced, but not before.' Johnson v. Towsley, 13 Wall. 72, 20 L. Ed. 485; Shepley v. Cowan, 91 U. S. 330, 23 L. Ed. 424; Marquez v. Frisbie, 101 U. S. 473, 25 L. Ed. 800."

Humbird v. Avery (C. C.) 110 Fed. 465, 471.

An action of ejectment cannot be maintained in the courts of the United States on a merely equitable title. Frost v. Spitley, 121 U. S. 552, 556, 7 Sup. Ct. 1129, 30 L. Ed. 1010; Carter v. Ruddy, 166 U. S. 493, 496, 17 Sup. Ct. 640, 41 L. Ed. 1090, and authorities there cited.

The averments in the bill, by whatever name it may be called, are susceptible of the construction that the defendants are in possession of the land in controversy. "It is true," as was said by Wellborn, J., in Gas Co. v. Miller (C. C.) 96 Fed. 12, 23, "that the bill does not, in terms, allege that the defendants are in possession, but the acts charged against the defendants are such as necessarily imply actual possession or occupancy of the land." While such a bill might be maintained under the state law, it is not cognizable by a federal court of equity, the remedy being at law.

In Erskine v. Oil Co. (C. C.) 80 Fed. 583, 585, Buffington, J., in discussing this question, said:

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"While the bill does not, in words, pray to acquire possession of the wells, yet in substance and effect that is its purpose. It seeks to restrain respondent from operating the wells or taking the oil, and these acts are, where oil and gas are concerned, the essential attributes of possession. The supreme court of Pennsylvania, in the case of Gas Co. v. De Witt, 130 Pa. 250, 18 Atl. 725, 5 L. R. A. 733, after discussing the peculiar character of gas and oil and their production, say: "The one who controls the gas [the subject-matter of the case before it] has it in his grasp, so to speak,-is the one who has possession in the legal as well as in the ordinary sense of the word.' A bill, then, which in substance would deprive one in possession of everything which constitutes possession, whatever it is in name, is in fact one to devest possession, or what is known as an ‘ejectment bill.' * * In the federal courts the line between law and equity, and consequently between legal and equitable rights and remedies, has been sharply defined, and strictly observed. The provision of the constitution vesting judicial powers in cases in law and equity * between citizens of different states' recognizes the distinction. A constitutional amendment insures the right of trial by jury 'in suits at common law when the value in controversy shall exceed twenty dollars,' and the sixteenth section of the judiciary act of 1789 provides that suits in equity shall not be sustained in either of the courts of the United States in any case where plain, adequate, and complete remedy may be had at law.' And to such length have these provisions been extended that it has been held (Allen v. Car Co., 139 U. S. 662, 11 Sup. Ct. 683, 35 L. Ed. 305): If the court, in looking at the proofs, found none of the matters which would make a proper case for equity, it would be the duty of the court to recognize the fact, and give it effect, though not raised by the pleadings nor suggested by counsel.' And rightly so, for we are here dealing with the constitutional right of the citizen, and, as was said by Mr. Justice Campbell in Hipp v. Babin, 19 How. 278, 15 L. Ed. 635, 'whenever a court of law is competent to take cognizance of a right, and has power to proceed to a judgment which affords a plain, adequate, and complete remedy, without the aid of a court of equity, the plaintiff must proceed at law, because the defendant has a constitutional right to a trial by jury.' After careful con

sideration, we are of opinion complainants' title is wholly a legal one, that ample remedy exists at law, that there are no special facts or circumstances in this case calling for the exercise of equitable jurisdiction, and that the bill is an ejectment one. With a disposition on our part to, if possible, retain jurisdiction to dispose of the case by construing the will, and end the controversy between the parties, we are unable to do so. The cases of Hipp v. Babin, 19 How. 278, 15 L. Ed. 635; Whitehead v. Shattuck, 138 U. S. 146, 11 Sup. Ct. 276, 34 L. Ed. 873, and others that might be referred to, block the way to a federal court assuming jurisdiction of what is, in substance and real purpose, an ejectment bill."

In Whitehead v. Shattuck, 138 U. S. 146, 11 Sup. Ct. 276, 34 L. Ed. 873, the bill of complaint, among other things, alleged that, notwithstanding complainant's ownership of the property and his right to its immediate possession and enjoyment, the defendants claimed title to it, and were in its possession, holding the same openly and adversely to him; that their claim of title was without foundation in law or at equity; and that it was made in fraud of the rights of the plaintiff. To this bill the defendants demurred on the ground, among others, that it appeared from it that the plaintiff had a plain, speedy, and adequate remedy at law, by ejectment, to recover the real property described, and that it showed no ground for equitable relief. The demurrer was sustained. In the course of the opinion the court said:

"The Code of Iowa enacts that 'an action to determine and quiet the title to real property may be brought by any one having or claiming an interest therein, whether in or out of possession of the same, against any person claiming title thereto, though not in possession,' implying that the action may be brought against one in possession of the property. And such has been the construction of the provision by the courts of that state.

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If that be its meaning, an action like the present can be maintained in the courts of that state, where equitable and legal remedies are enforced by the same system of procedure and by the same tribunals. It thus enlarges the powers of a court of equity, as exercised in the state courts; but the law of that state cannot control the proceedings in the federal courts, so as to do away with the force of the law of congress declaring that 'suits in equity shall not be sustained in either of the courts of the United States, in any case where a plain, adequate and complete remedy may be had at law,' or the constitutional right of parties in actions at law to a trial by a jury."

The opinion in that case was written by Mr. Justice Field, who also wrote the opinion in Holland v. Challen, 110 U. S. 15, 3 Sup. Ct. 495, 28 L. Ed. 52, relied upon by appellant, and he explains and distinguishes that case from the one under consideration.

In Black v. Jackson, 177 U. S. 349, 361, 20 Sup. Ct. 648, 44 L. Ed. 801, the court, in discussing similar questions, quotes with approval the language of the court in Lacassagne v. Chapuis, 144 Ủ. S. 119, 124, 12 Sup. Ct. 661, 36 L. Ed. 370, as follows:

"The plaintiff was out of possession when he instituted this suit, and by the prayer of this bill he attempts to regain possession by means of the injunction asked for. In other words, the effort is to restore the plaintiff by injunction to rights of which he had been deprived. The function of an injunction is to afford preventive relief, not to redress alleged wrongs which had been committed already. An injunction will not be used to take property out of the possession of one party and put it into that of another. The plaintiff has a full, adequate, and complete remedy at law, and the case is not one for the jurisdiction of a court of equity."