(concurring).
I concur in so much of the judgment as reverses the judgment appealed from. If the court had a right to consider the case on its merits, I think it plain that it decided it wrongly. The Secretary’s award to Wit-beek should have been sustained.
I think, however, that the United States not being a party to the suit and not having parted with title to the land, the case presents no justiciable matter and the judgment should dismiss, not remand, the cause.
Witbeek had nothing which the court can make him assign, Hardeman claiming not under but adversely to the Witbeek permit Wilson v. Elk Coal Co. (C. C. A.) 7 F.(2d) 112.
Quite a different situation is presented where, as in the cases cited in the majority opinion in favor of the jurisdiction, Isaacs v. De Hon (C. C. A.) 11 F.(2d) 943, 944; Hodgson v. Federal Oil Co. (C. C. A.) 5 F.(2d) 442, 449, the plaintiff claimed a right in property, title to which was still in the United States, not adversely to but qnder the defendant, and the objeet of the suit was to compel him to perform the trust which he had undertaken, to recognize the interest which he had created, or with which he was in privity.
In the Isaacs Case the same court which had decided the Wilson Case makes this very clear. “It is contended that there is a defect of parties, in that the Secretary of the Interior has not been joined. * * * It may be that plaintiffs will lose the fruits of this litigation by the refusal of the Secretary to approve the assignment of interests in the permit. But appellant is nevertheless held in a court of equity to the obligations he assumed in his grubstake contract. The Secretary of the Interior would not have been a proper party to this suit. * * * Courts do have power to enforce contracts with reference to lands while title thereto is held by the government.”
While in the Hodgson Case Judge Stone makes it very plain why there the court had jurisdiction, and here it would not have. “Section 18 [30 USCA § 227] provides that ‘all leases hereunder shall inure to the benefit of the claimant and all persons claiming through or under him. * * * ’ The words ‘or otherwise’ * » * would seem broad enough to cover a claim that the lessor was a trustee. -* * If the appellant is, as he alleges, a tenant in common in such property, the right would exist, if the property were privately owned, in any tenant to exploit it. * * * If the property involved * * * is a part of the public domain •* * * and if one of the eotenants has secured this exclusive right to exploitation it would seem that an accounting for the net results would not in' any wise affect the lessee or, the government. * * * My judgment is that his allegátions, if establishing a cotenancy * * * could result only in establishment of a trust relation as *455to this lease. If this he true * * * I do not see how the government is interested or affected by this controversy.”
Thus it is seen that in the Isaacs and in the Hodgson Cases there was a controversy between persons claiming to be in privity with each other, in which it was sought to establish a trust upon the property in question, not adverse but subordinate to the right held by the defendant.
Here the effort is to strike down wholly the defendant’s right in order to'set up an independent right asserted in lands the title to which is still in the United States, not in subordination to but wholly in despite of that right, and in contradiction of the action of the Secretary in the. exercise of his discretion in awarding the permit to Witbeek.
It seems plain to me that this ease presents an attempt to invoke the jurisdiction of the court to, in the absence of indispensar ble parties, do a vain and idle thing.