Ross v. Wright

• Decision Date: 20 June 1911
• Docket Number: Case Number: 927
• Citation: 29 Okla. 186,1911 OK 223,116 P. 949
• Parties: * ROSS et al. v. WRIGHT et al.
• Court: Oklahoma Supreme Court

1911 OK 223

116 P. 949

29 Okla. 186

* ROSS et al. v. WRIGHT et al.

Case Number: 927

Supreme Court of Oklahoma

Decided: June 20, 1911

Syllabus

¶0 1. APPEAL AND ERROR--Review--Necessity of Motion for New Trial. Where a suit in equity is begun in one of the United States courts for the Indian Territory, and after statehood transferred to the district court of one of the counties of the state, alleged errors of law occurring on the trial may be reviewed in this court without a motion for a new trial.

2. INDIANS--Allotments--Attack on Decisions of Land Department--Pleading and Proof. One who would attack a patent or decision of the department for a mistake of fact must plead and prove the evidence before the department from which the mistake resulted, the particular mistake that was made, the way in which it occurred, and the fact that, if it had not been made, the decision would have been otherwise and the patent would not have issued to the patentee, before any court can enter upon the consideration of the original issue of fact determined by the department.

3. INDIANS--Cherokee Allotments--Statutes--"Improvements." Allotments of lands of citizens of the Cherokee Nation were made under the provisions of an act of Congress, dated July 1, 1902 (32 Stat. L. 716), entitled "An Act to provide for the allotment of the lands of the Cherokee Nation, for the disposition of town sites therein, and for other purposes," and thereunder citizens of the Cherokee Tribe of Indians were entitled to select as their allotments lands upon which were located their improvements, and the setting of posts merely for the purpose of marking or defining a prospective allotment was not sufficient to constitute a lawful improvement.

4. COURTS--Decisions of U.S. Land Department--Binding Force. While a decision of the land department on matters of law are not binding on the courts, they should not be annulled unless they are clearly erroneous.

* Appealed to the Supreme Court of the United States.

Error from District Court, Washington County; T. L. Brown, Judge.

Action by Robert B. Ross and Fannie D. Ross against J. G. Wright and James Day. Judgment for defendants, and plaintiffs bring error. Affirmed.

Kenneth S. Murchison, for plaintiffs in error

Veasey & Rowland, J. D. Talbott, and Kenneth H. Davenport, for defendants in error

DUNN, J.

¶1 This case presents error from the district court of Washington county, an equity suit brought by plaintiffs in error, as plaintiffs, in one of the United States courts for the Indian Territory, sitting at Muskogee. After the cause was begun plaintiffs dismissed as to the defendant J. G. Wright, commissioner, and continued as against James Day. Thereafter, on September 11, 1908, defendant filed his answer to plaintiff's complaint. After the issues were made up the cause was submitted to a referee, who filed his report on the 7th day of November, 1908, containing, in accordance with the order under which he was appointed, his findings of fact. Thereafter, and on the 25th day of February, 1909, the court denied a motion filed by plaintiffs for a judgment against the defendant upon the findings of the referee, and, setting aside the findings and the report, proceeded to hear and determine the cause upon the evidence taken. Thereafter, and on the 3rd day of March, 1909, the court rendered its judgment, finding in all things for the defendant and decreeing that the plaintiffs take nothing by their action. To review the judgment rendered, the cause has been duly lodged in this court.

¶2 Counsel for defendant have filed a motion to dismiss the proceeding in error because of the fact that no motion for a new trial was filed in the court below. This action being one in equity, and having been begun prior to statehood, was appealable and subject to review on the record made without the filing of a motion for new trial. Joines v. Robinson at al., 4 Ind. Ter. 556, 76 S.W. 107. See sec. 1, Schedule to the Constitution (Snyder's Const. p. 380).

¶3 Passing directly to the merits of the action and considering those questions only which in our judgment it is essential for us to consider, we will say that the action is brought for the purpose of securing a decree constituting the defendant a trustee to hold title to the land involved, which lies in the Cherokee Nation, for plaintiffs' benefit, and that plaintiffs be held to be entitled to the same as part of their allotments as members of the Cherokee Tribe. The defendant originally entered the same as his allotment and plaintiffs brought contest, which, on being carried to the Secretary of the Interior, was decided against them and in favor of defendant. The essential portions of the decision of the Secretary of the Interior are as follows:

"There is no serious difference of opinion as to the facts in the case. The land involved includes two tracts near Bartlesville, one of which contains twenty acres, and the other is a detached piece of land containing ten acres and lies south of the former, but in the same quarter section. Both tracts were claimed by the firm of Johnstone & Keeler prior to 1902, and constituted a portion of a large tract which was wholly or partially enclosed at one time by wire fence. The members of the firm divided their holdings between them, and Keeler took that part of the land held by them which included the land in contest. November 1, 1902, Keeler transferred his interest in the land last referred to, with the improvements thereon, to the contestant by 'bill of sale' witnessed but not acknowledged before a notary. It is evident that at this time the fencing was pretty well down, and that the land contained no improvements of material value, constituting as it did a portion of the extensive Delaware holdings in which the firm dealt prior to 1902, the extent of their interest in such lands being disclosed in a number of cases. Contestants do not appear to have made any effort to take possession of the place until the fall of 1903. Then Mr. Ross, according to his testimony, employed a man to take a load of posts to the place for the purpose of fencing it, but the lines were not located or the posts set at that time. Apparently nothing further was done until March of the year 1904. Contestant then sent his son, Dr. Charles M. Ross, to look after his interests in the matter. The latter, on March 1, 1904, visited the land, and with the assistance of a surveyor and two other persons located the lines of the land in controversy and indicated the same by setting thereon posts or stakes. Dr. Ross testified concerning the work which was done by him and under his supervision that day, and although his testimony was given in the interest of his parents, it shows clearly the unimproved condition of the land at that time * * * * And, bearing further upon the character of the alleged improvements made by Dr. Ross and his associates March 1, 1904, it is observed that the posts used to inclose this thirty acres were cut and set in about five hours; that some of the posts were about the size of a man's arm and others were mere stakes or poles; that they were placed from fifty to one hundred feet apart, except at the corners, where it appears that five posts were set in comparative proximity. The posts bounding the tracts were not joined by wire or otherwise so as to make a connected fence. No further act of improvement or occupation can be fairly conceded the contestants. Passing now to the testimony of the contestee and his witnesses, it is found that he has lived in the neighborhood of the land for about thirty years; that he alleges that he has claimed it for twenty-five years past, and that he has been cutting timber and posts from it, as well as fuel, all the time. It further appears that when he learned, March 1, 1904, of the efforts made by Dr. Ross and his party to survey and enclose the land he immediately went to Bartlesville and purchased $ 45.00 of wire, with which he proceeded to fence the tract. In so doing he cut part of the posts and bought part. He was assisted by his son, and the work required about two and a half days. In constructing the fence, two wires

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