Light v. Conover

• Decision Date: 08 February 1901
• Citation: 1901 OK 17,63 P. 966,10 Okla. 732
• Parties: JOHN W. LIGHT v. GEORGE W. CONOVER.
• Court: Oklahoma Supreme Court

1901 OK 17

63 P. 966

10 Okla. 732

JOHN W. LIGHT v. GEORGE W. CONOVER.

Supreme Court of Oklahoma

Decided: February 8, 1901

Error from the District Court of Canadian County; before John C. Tarsney, District Judge.

Syllabus

¶0 LEASE ON INDIAN LAND--Not Valid, When. A written or parol lease entered into between the plaintiff and the defendants, without the consent and approval of the Indian agent and the commissioner of Indian affairs, for the pasturage of cattle located upon the Kiowa, Commanche and Apache, Indian reservations, is null and void, and therefore no action can be maintained thereon.

C. M. Fechheimer and Blake & Blake and W. T. Becks, for plaintiff in error.

Charles H. Carswell, for defendant in error.

STATEMENT OF THE CASE.

This was an action brought by the plaintiff, George W. Conover, against the defendants Martin and Light to recover the sum of $ 595.00 for rent which the plaintiff claimed was due for the use of a certain pasture located in the Kiowa and Comanche reservations. The petition alleges in substance that for more than twenty years last past the plaintiff was a member of the Comanche tribe of Indians located in the Kiowa, Comanche and Apache reservations in said Territory; and that in the year 1886, the Comanche tribe of Indians authorized the plaintiff to inclose a certain tract of land as a pasture; and that under the said agreement the plaintiff included a large tract of land with a fence and took possession thereof and has since occupied the same; that said agreement was never cancelled or revoked by said tribe of Indians. That on July 11, 1892, the plaintiff entered into a written lease with Martin and Light, by the terms of which lease the plaintiff rented to the defendants a portion of the above named pasture upon the following terms and conditions, to-wit:

"The said Martin and Light agree to pay as rent, the first year $ 2,000.00 and for every other year the sum of $ 2,600.00, and said G. W. Conover is to continue the said Martin and Light in possession of said land as long as he can do so. The said rent is to be paid, the first quarter''s rent $ 500.00 this day paid, second quarter $ 500.00 in six months, the third quarter in nine months, the fourth quarter in twelve months, and the others three months thereafter in quarterly payments so long as the said G. W. Conover shall keep said Martin and Light in possession of the said land."

That on the first day of April, 1895, the plaintiff entered into a written lease with the Kiowa, Comanche and Apache Indians for said lands for a term of one year ending on March 31, 1896, and said lease was approved by the commissioner of Indian affairs and remained in full force and effect until the 31st of March, 1896. That the defendants remained in possession of said land until the 31st of March, 1896, with the knowledge, consent and approval of the agent of said Kiowa and Comanche reservations and the commissioner of Indian affairs, but failed and refused to pay any rent after the 10th day of January.

The defendant John W. Light filed an answer in which he admitted the execution of the leases pleaded by the plaintiff; but averred in substance that the written lease entered into between the plaintiff and the defendants on July 11, 1892, and the subsequent parol agreements entered into between the plaintiff and defendants whereby the defendants used the said pasture for grazing purposes, was unauthorized, and therefore illegal and void, for the reason that said lease and the subsequent parol agreements were made and entered into without the knowledge, consent or approval of the Indian agent in charge of the Kiowa and Comanche Indian and also without the approval of the commissioner of Indian affairs. It was further alleged in said answer that the plaintiff had no power or authority to sublease said lands or any portion of them to the defendants or to any one else without the consent and approval of the Indian agent or commissioner of Indian affairs. It was further alleged that the said plaintiff neglected to report the lease entered into between the said plaintiff and the defendants to the Indian agent, and for the purpose of deceiving the said Indian agent in the premises, concealed from said agent the fact that said plaintiff executed said lease to the defendants, and at all times denied to said agent that said lease existed, and denied to said agent that the said defendants were using said land for grazing purposes by the consent of the plaintiff. It was also alleged in the answer that the Indian agent had no knowledge of said lease between the plaintiff and the defendants until some time in February, 1896, when he ordered said defendants to vacate said pastures. To this answer the plaintiff filed a reply consisting of a general denial.

The issues being thus joined the cause was tried by a jury and a verdict rendered in favor of the plaintiff for one hundred and thirty-eight dollars. Thereupon the defendant filed a motion for a new trial, which was overruled and exception reserved, and judgment rendered upon the verdict of the jury in favor of the plaintiff and against the defendant John W. Light. It appears that the defendant Martin was never served with a summons, and did not appear in the action. From this judgment the defendant, Light, appeals.

HAINER, J.:

¶1 A number of errors are assigned and discussed by the plaintiff in error, but we think it is only necessary to consider one of them, which is decisive of this case, and that is, the validity of the written lease between Conover and Martin and Light on July 11, 1892, and the subsequent parol agreement which the plaintiff claims was entered into with the defendants and upon which he recovered judgment. The lease entered into between the plaintiff and the defendants on July 11, 1892, was made without the consent and approval of the Indian agent or the commissioner of Indian affairs, and was therefore absolutely void. It appears from the record that the plaintiff did not obtain a lease from the Indian agent until April, 1895, which was for a period of only one year, beginning on the first of April, 1895, and terminating on March 31, 1896. It also appears that this lease was approved by the commissioner of Indian affairs, and was no doubt a valid lease, but under the conditions of this lease Conover had no power or authority to enter into a contract to lease or sublease any of said lands or any portion thereof to the defendants or any other person without the consent and approval of the Indian agent or the commissioner of Indian affairs. The written lease between Conover and Martin and Light being absolutely void, any subsequent parol agreement entered into between them without the consent and approval of the Indian agent or the commissioner of Indian affairs, must, necessarily, be absolutely void.

¶2 The court in its instructions to the jury assumed that the contract between Conover and Martin and Light was valid, and also that the parol agreement between the plaintiff and defendants was legal, and in effect instructed the jury that the burden of proof was upon the defendants to show that the lease was made without the consent and approval of the Indian agent, or the commissioner of Indian affairs. This was clearly erroneous. The burden of proof was upon the plaintiff in this action to show that he had a valid lease, and in order to establish a valid lease it was necessary for him to prove, by a preponderance of the evidence, that...