Haymond v. Scheer

• Decision Date: 07 October 1975
• Docket Number: No. 46112,46112
• Citation: 543 P.2d 541
• Parties: Cora Jim HAYMOND et al., Appellees, v. A. J. SCHEER et al., Appellants.
• Court: Oklahoma Supreme Court

Page 541

543 P.2d 541

Cora Jim HAYMOND et al., Appellees, v. A. J. SCHEER et al., Appellants.

No. 46112.

Supreme Court of Oklahoma.

Oct. 7, 1975.

As Corrected Oct. 17, 1975.

Rehearing Denied Dec. 16, 1975.

Sam A. Denyer, Drumright, Thurman S. Hurst, Tulsa, Cubbage & Cubbage, Cushing, for appellants.

Robert J. Scott, William J. Perry, Pawnee, for appellees.

DOOLIN, Justice.

This controversy concerns the estate created under a trust patent granted by virtue of the General Allotment Act, 24 Stat. 388, Act of Congress, February 8, 1887. The rights of the allottee under the trust patent issued by the President of the United States to Phoebe Fancy Sun, Pawnee Allottee #359 on October 9, 1893, must be measured against the rights granted the railroad under provisions of the Enid and Anadarko Railroad Co. Act, 32 Stat. 43, Ch. 134 sometimes hereinafter called the Act of February 28, 1902.

We condense the salient facts as follows.

The trust patent covered 160 acres of land in Oklahoma territory described as Northeast quarter of section 32, Township 21 North, Range 6 East of the Indian Meridian in what is now Pawnee County, Oklahoma. It recited that under the fifth section of the General Allotment Act, supra, that the United States of America

'will hold the land thus allotted subject to all restrictions and conditions * * *' for the period of 25 years, in trust for the sole use and benefit of said Phoebe Fancy Sun * * * or in case of her decease, for the sole use of her heirs * * * and that at the expiration of said period, the United States will convey the same by patent to said Indian, or her heirs * * * in fee * * *: Provided that the President of the United States may, in his discretion, extend the said period. ¹

Subsequent to the General Allotment Act, Congress passed the so called Enid and Anadarko Railway Co. Act, and this on February 28, 1902. On July 11, 1902, the Eastern Oklahoma Railway Company caused to be prepared a map or plat of the 80 acres of land in controversy as required under the provisions of § 15 of the Enid and Anadarko Act. This map was filed with the Department of Interior on July 26, 1902. Thereafter, the Eastern Oklahoma Railway Company took delivery of an instrument designated general warranty deed dated August 16, 1902, signed by Phoebe Fancy Sun, a single person; it was filed April 30, 1904. This last instrument stated:

'This deed is made under the authority of an Act of Congress approved February 28, 1902, and is purchased for a reservoir for the storage of water and other railroad purposes.'

The AT&SF Ry. Co. became the successor in interest to the Eastern Oklahoma Ry. Co. in 1907 and used the premises concerned for a lake for storage of water used in its steam locomotives until 1947. In 1947, by quit claim deed (dated August 26, 1947 filed Jan. 21, 1948) it conveyed the 80 acres in question to the present defendants or their predecessors in title. All these instruments heretofore described covered the controversial lake or reservoir property excepting the trust patent which covered a full 160 acres including the controverted premises. ²

While the property was owned by the AT&SF Ry. Co., it was leased to individuals and/or rod and gun associations who used same for recreational purposes. Rent was paid to the AT&SF Ry. Co. until the premises were alienated by the company.

The evidence also developed that the quit claim deed from the AT&SF Ry. Co. to the individual(s) was prompted by abandonment of steam locomotives and the switch to diesel power and lack of the need of water for such equipment.

On January 6, 1960, the heirs of Phoebe Fancy Sun filed suit to quiet title to the lake property in controversy naming as defendants the remote grantees from Eastern Ry. their lessees and all other persons interested. Personal service was obtained upon some defendant, appearances were entered by others and publication was had on still other defendants. No question as to adequacy of service or notice is presented.

The AT&SF Ry. Co. disclaimed interested in the premises, the owners or lessees filed general demurrers and also pleadings setting out the defenses of adverse possession and laches. The defendants also asked the court to declare their interests paramount and that the title be quieted in them and against the heirs of Phoebe Fancy Sun.

In addition to the prayer of quiet title, the plaintiffs sought money damages for withholding possession of premises (rent and profits); trial was held July 17th and 24th, 1972, with judgment rendered October 16, 1972, for the plaintiffs; jury being waived.

The trial court's judgment quieted title in the Indian heirs, further granted judgment against certain joint defendants in the amount of $584.65, and judgment in the sum of $5,528.70 against one defendant for withholding possession and then finally held that the cabins were not a part of the realty and gave such cabin owners 90 days to remove the same from the premises.

The Court of Appeals, Division 2, reversed the trial court and remanded same with directions to quiet the title in the defendants, and vacate the money judgment in favor of the Indian heirs.

The Indian heirs seek certiorari.

We first observe that the parties are in agreement that the root or source of Eastern Oklahoma Railway's title is the Enid and Anadarko Act; they are also in agreement that the General Allotment Act is the source of the Indian heirs' title and that the plaintiffs represent the living heirs of Phoebe Fancy Sun. We must decide first, what estate was granted the Eastern Oklahoma Railway under the Act of February 28, 1902, (Enid and Anadarko Act) and what was granted under the conveyance (general warranty deed) from Pawnee allottee #359 to Eastern Ry. dated August 16, 1902.

We find that the grant under the Enid and Anadarko Act to Eastern Ry. Co. was an easement in the nature of a limited fee. Not only is the act entitled 'An act to grant right-of-way through the Oklahoma territory and the Indian territory * * *,' but the courts are in complete agreement as to what was granted upon filing of the maps and plats required by the act. See St. Louis-San Francisco Railway Company v. McBride et al., 104 Okl. 216, 231 P. 284 (1924); United States v. Magnolia Petroleum Company, 110 F.2d 212 (10th Cir. 1940); Oklahoma City-Ada-Atoka Railway Company v. City of Ada, 182 F.2d 293 (10th Cir. 1950); Seminole Nation v. White, 224 F.2d 173 (10th Cir. 1955); Town of Maysville, Okl. v. Magnolia Petroleum Co., 272 F.2d 806 (10th Cir. 1960); City of Wilburton, Okl. v. Swafford, 253 F.2d 479 (10th Cir. 1958); Truskett v. Closser, 198 F. 835, 837 (8th Cir. 1912); St. Louis-San Francisco Railway Company v. Town of Francis, 249 F.2d 546 (10th Cir. 1958). We are not unmindful that all of the cases last cited are ones arising in Indian Territory: but Truskett v. Closser, supra states that Sections 13 through 22 of the Enid and Anadarko Ry. Act of February 28, 1902, were extended and continued in force in the State of Oklahoma, citing as authority 35 Stat. 312, Act of Congress, May 27, 1908.

Were it not for the fact that the Eastern Railway Company took what is denominated a General Warranty Deed and contends that the Pawnee allottee had 'full power of alienation' our problems would be at an end. It is this last instrument that the defendant owners and lessees claim creates a fee simple title in the Eastern Railway Company and thus through various and mesne conveyances such title has come down to the present defendants.

We do not agree with this last conclusion for the Act of Congress, February 8, 1887, 24 Stat. 388, 25 U.S.C.A. § 348 provides:

'* * * and if any conveyance shall be made of the lands set apart and allotted as herein provided, or any contract made touching the same, before the expiration of the time above mentioned, such conveyance or contract Shall be absolutely null and void: (Emphasis supplied)

We have heretofore demonstrated in footnote 1 that the restrictions imposed by the General Allotment Act were still in effect as late as January 1, 1974. The provisions of the Trust Patent dated October 9, 1893, commenced the running of the restrictions for 24 Stat. 388, 389 #5 provided:

'Upon the approval of the allotments provided for in this act by the Secretary of the Interior, he shall cause patents to...