Noble v. Oklahoma City
| Citation | 44 P.2d 135,172 Okla. 182,1935 OK 162 |
| Decision Date | 19 February 1935 |
| Docket Number | 23821,23822. |
| Parties | NOBLE et al. v. OKLAHOMA CITY. HIGGINS et al. v. SAME. |
| Court | Supreme Court of Oklahoma |
Rehearing Denied May 7, 1935.
Syllabus by the Court.
1. Under Act of Congress of February 18, 1888 (25 Stat. 35, as amended by Act of February 13, 1889, 25 Stat. 668), Congress granted to the Choctaw Coal & Railway Company a franchise to construct and operate a railroad in the then Indian Territory, through certain Indian lands, and through the public lands of the United States therein, and granted to said company an estate to a strip of land of the designated width contained in said act, vested in præsenti in the nature of a limited fee, to be used for the purpose of a right of way and depot grounds only, with an implied condition of reverter as to the portion of said right of way traversing public lands, to the United States, upon abandonment of such use.
2. The estate so granted was superior to the rights of any person acquiring rights in said public lands subsequent to the passage of said act, and all such persons took notice of such rights of said company, and any rights granted by the United States to such subsequent claimants were subordinate to the prior and superior rights of said company, and of the rights of the United States.
3. Under the facts existing in this case, plaintiffs cannot assert want of authority in the United States to make a valid grant of a present vested estate in said lands upon a claim of defect of title in the United States.
4. Whenever a tract of land shall have once been legally appropriated to any purpose, from that moment the land thus appropriated becomes severed from the mass of public lands and no subsequent law, or proclamation, or sale, will be construed to embrace it, or to operate upon it, although no other reservation is made of it.
5. A patent issued under the homestead and pre-emption laws of the United States covering a portion of the lands granted for right of way purposes mentioned in syllabus 1, does not convey the right of reverter reserved to the United States.
6. Under the provisions of the above act, the actual construction of the railroad constituted the definite location of the lands to which the estate granted by the act attached, and upon such construction, said estate related back and vested as of the date of said act.
7. Private persons cannot, by act or contract, estop the United States from asserting its paramount rights, and exercising its dominion, over public lands or rights retained therein.
8. Act of Congress of March 8, 1922 (42 Stat. 414 [43 USCA § 912]) granted to the city of Oklahoma City the lands abandoned as a right of way involved herein, subject to the conditions and uses set forth in said act.
Appeal from District Court, Oklahoma County; Lucius Babcock, Judge.
Separate actions by George Noble and another and by Robert W. Higgins and others against the city of Oklahoma City. From judgments for defendant, plaintiffs separately appealed, and the appeals were consolidated.
Affirmed.
Joe T Rogers, of Wichita, Kan., Libby & Sherwin, of Los Angeles Cal., and Suits & Disney, Henry L. Goddard, Chas. H. Garnett and Fred Ptak, all of Oklahoma City, for plaintiffs in error.
Harlan T. Deupree, Municipal Counselor, and Stokes, Jarman & Brown, all of Oklahoma City, for defendant in error.
George Noble and William Noble, heirs of Naomi Noble, deceased, brought an action in the district court of Oklahoma county against the city of Oklahoma City in ejectment and to quiet title to certain real property. A similar action was filed by Robert W. Higgins, Jr., and others, as heirs of Robert W. Higgins, deceased. The issues of law and fact in the two cases are very similar if not identical. Such differences as exist will be hereinafter pointed out. The trial court rendered judgment in favor of the defendant in both cases, and plaintiffs appeal. The causes were consolidated in this court. The parties will be referred to as they appeared in the trial court.
The property involved herein is located between first and second streets in Oklahoma City adjacent to the principal business section of the city. For nearly 40 years the property has been used and occupied as a right of way by the Chicago, Rock Island & Pacific Railway Company, and its predecessors. On December 4, 1930, the property was abandoned by the railway company, whereupon this controversy arose.
The land upon which the city of Oklahoma City is now located was opened for settlement by proclamation of the President, pursuant to authority of Congress, on April 22, 1889. In 1890 the Oklahoma Townsite Act was passed by Congress, and thereafter trustees of the townsite of Oklahoma City were approved, and the south east quarter of section 33, township 12 north, range 3 west, was patented to said trustees for the use and benefit of the occupants of the townsite. Thereafter, the trustees executed a deed to lot 6, in block 36, in Oklahoma City, to Naomi Noble. The plaintiffs, George Noble and William Noble, are the sole heirs of Naomi Noble, now deceased.
Robert W. Higgins, Jr., and the other plaintiffs are the heirs of R. W. Higgins, deceased, who received a homestead patent direct from the government as a settler on the south west quarter of section 33, township 12 north, range 3 west.
On February 18, 1888, Congress granted certain rights to the Choctaw Coal & Railway Company (25 Stat. 35). The pertinent provisions giving rise to this controversy are as follows:
"An act to authorize the Choctaw Coal and Railway Company to construct and operate a railway through the Indian Territory, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the Choctaw Coal and Railway Company, a corporation created under and by virtue of the laws of the State of Minnesota, be, and the same is hereby, invested and empowered with the right of locating, constructing, owning, equipping, operating, using, and maintaining a railway and telegraph and telephone line through the Indian Territory, beginning at a point on Red River (the southern boundary line), at the bluff known as Rocky Cliff in the Indian Territory, and running thence by the most feasible and practicable route through the said Indian Territory to a point on the east boundary line, immediately contiguous to the west boundary line of Polk or Sevier Counties in the State of Arkansas; also, a branch line of railway to be constructed from the most suitable point on said main line for obtaining a feasible and practicable route in a northwesterly direction to the leased coal veins of said Choctaw Coal and Railway Company in Tobucksey County, Choctaw Nation; with the right to construct, use, and maintain such tracks, turnouts, branches, and sidings and extensions as said company may deem it in their interest to construct along and upon the right of way and depot grounds herein provided for.
Sec. 2. That said corporation is authorized to take and use for all purposes of railway, and for no other purpose, a right of way one hundred feet in width through said Indian Territory for said main line and branch of the Choctaw Coal and Railway Company; and to take and use a strip of land two hundred feet in width, with a length of three thousand feet, in addition to right of way, for stations, for every ten miles of road, with the right to use such additional ground where there are heavy cuts or fills as may be necessary for the construction and maintenance of the road-bed, not exceeding one hundred feet in width on each side of said right of way, or as much thereof as may be included in said cut or fill: Provided, That no more than said addition of land shall be taken for any one station: Provided further, That no part of the lands herein authorized to be taken shall be leased or sold by the company, and they shall not be used except in such manner and for such purposes only as shall be necessary for the construction and convenient operation of said railroad, telegraph, and telephone lines; and when any portion thereof shall cease to be so used, such portion shall revert to the nation or tribe of Indians from which the same shall be taken.
Sec. 3. That before said railway shall be constructed through any lands held by individual occupants according to the laws, customs, and usages of any of the Indian nations or tribes through which it may be constructed, full compensation shall be made to such occupants for all property to be taken or damage done by reason of the construction of such railway. In case of failure to make amicable settlement with any occupant such compensation shall be determined by the appraisement of three disinterested referees, to be appointed. * * *
Sec. 10. That the said Choctaw Coal and Railway Company shall accept this right of way upon the express condition, binding upon itself, its successors and assigns, that they will neither aid, advise, nor assist in any effort looking towards the changing or extinguishing the present tenure of the Indians in their land, and will not attempt to secure from the Indian nations any further grant of land, or its occupancy, than is hereinbefore provided: Provided, That any violation of the condition mentioned in this section shall operate as a forfeiture of all the rights and privileges of said railway company under this act."
On February 13, 1889, the act (section 1) was amended (25 Stat 668) authorizing the construction of a road from Tobucksey county (near Hartshorne, Pittsburg county) to an intersection with the Atchison Topeka & Santa Fé Railway at the most convenient point between Halifax Station and Ear Creek (near the...
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