Proctor v. Painter

(after stating the facts as above). What was said in Wilson v. Elk Coal Co., supra, has application here and is decisive. The power of the officers of the General Eand Office to convey land is limited by law. Act Feb. 25, 1920, c. 85 (sections 4640%, 4640%d, 4640%mm, 4640%r, Comp. Stat. Cum. Supp. 1923), *477limits the disposition of coal land. The deed without reservation of coal was issued without authority. The United States, in harmony with law, has at all times exercised ownership over the coal in the land. It has leased it to the defendant coal company, which has expended sums of money in prospecting and development. The defendant Painter, so far as within his power, has corrected the inadvertent error by transfer of the land to the United States.

The plaintiff is not entitled to take advantage of the inadvertence and secure the land, if his claim is predicated upon a basis of right, without paying the price fixed pursuant to statute. The legal title to the coal has not passed from the United States. The coal company has the exclusive privilege to mine the coal from the owner, the United States, unless the plaintiff establishes a prior right thereto, which he may not do in this action. The United States is a necessary party, and, if the plaintiff’s claim is predicated upon a basis of right, his remedy is against the Secretary of the Interior and the defendants, as necessary parties. The cases cited have no application, or are of no controlling authority. What is here said is in harmony with Swendig v. W. W. P. Co. (C. C. A.) 281 Fed. 900, affirming decision of Judge Dietrich, and which was affirmed by the Supreme Court May 26, 1924.

The action must be dismissed.