Territory v. Choctaw, O. & W. Ry. Co.
| Decision Date | 13 April 1908 |
| Docket Number | Case Number: 1950 OK Ter |
| Citation | 20 Okla. 663,1908 OK 57,95 P. 420 |
| Parties | TERRITORY v. CHOCTAW, O. & W. RY. Co. |
| Court | Oklahoma Supreme Court |
¶0 1. PUBLIC LANDS--School Lands--Title of Territory--Appropriation by Railroad. The territory of Oklahoma received no title to sections 16 and 36 in each township in said territory by the provision of the Organic Act (Act May 2, 1890, c. 182, sec. 18, 26 Stat. 89) reserving said sections for the purpose of being applied to the public schools in the state or states to be created out of the territory, and could not recover the value of such land appropriated for railway purposes.
2. EMINENT DOMAIN--School Lands--Compensation to Territory. The territory of Oklahoma could recover from a railway company that had appropriated a portion of the land reserved for school purposes by the provision of the Organic Act (Act May 2, 1890, c. 182, sec. 18, 26 Stat. 89) the rental value of the land so taken, and for the depreciation in the rental value of the remainder of the tract of land not taken resulting from the construction of the company's railroad over said land, for such a period of time as the territory of Oklahoma was entitled to use said land and collect the rents thereon.
3. APPEAL--Review--Instructions--Failure to Save Exceptions. An objection to an instruction to which no exception was saved in the trial court to the giving thereof will not be considered by this court.
Error from District Court, Lincoln County; before John H. Burford, Judge.
Condemnation proceedings by the Choctaw, Oklahoma & Western Railway Company for right of way over school land. From judgment for $ 27.90 in District Court the territory brings error. Affirmed.
On the 5th day of September, 1903, the Choctaw, Oklahoma & Western Railway Company filed with the Governor of the territory of Oklahoma its petition for the appointment of commissioners or appraisers to condemn and appraise certain land lying in the northeast quarter of section 16, township 14 N., range 4 E. of the Indian Meridian, and being a part of the school lands located in the territory of Oklahoma, for the purpose of a right of way of said company's main line of railroad, and for side tracks, grounds, and switches. On the same day the Hon. Thompson B. Ferguson, then Governor of the territory of Oklahoma, made his order appointing commissioners or appraisers as prayed for in the petition of said railway company; and thereafter, on the 12th day of September, 1903, said commissioners or appraisers filed with the Governor of the territory of Oklahoma its report, in which report they assessed the damages which the territory of Oklahoma would sustain by the appropriation of said land for railway purposes by the said Choctaw, Oklahoma & Western Railway Company at the sum of $ 162. From this award of the commissioners or appraisers the Hon. Thompson B. Ferguson, as Governor, and Wm. Grimes, as Secretary, and L. W. Baxter, as Superintendent of Public Instruction, constituting a board for the leasing of the school lands of the territory of Oklahoma, appealed to the district court of Lincoln county. Thereafter, on the 20th day of October, 1904, the cause was tried before a jury, and verdict returned and judgment rendered in favor of the territory of Oklahoma for the sum of $ 27.90, from which judgment of the court plaintiff in error appealed.
Charles West, Atty. Gen., and W. C. Reeves, Asst. Atty. Gen., for plaintiff in error.
C. O Blake, Thos. R. Beman, H. B. Low, Dale & Bierer, and Benj. F. Hegler, Jr, for defendant in error.
¶1 (). It was agreed upon the trial that 3.1 acres of said quarter section of school land had been appropriated by the railway company. Several assignments of error are made by plaintiff in error. The only question, however, presented by said assignments of error and the record in this case is whether the territory of Oklahoma could recover the value of the 3.1 acres of land appropriated by the railway company and damages for the permanent injury to the remainder of said quarter section by reason of the company's constructing its line of railway and switches on and over same.
¶2 The railway company insists that the territory of Oklahoma had no title to the land, was not the owner of the fee in the same, that said land was a part of the public domain of the United States, and that said railway company, having been granted by Act Cong. March 3, 1875, c. 152, § 1, 18 Stat. 482 (U. S. Comp. St. 1901, p. 1568), the right to build its line of railroad through the public domain of the United States, the territory of Oklahoma could not recover in this action. Counsel for the territory of Oklahoma insist that the provision of the Organic Act of the territory of Oklahoma (Act May 2, 1890, c. 182, § 18, 26 Stat. 89) reserving sections 16 and 36 in each township in the territory of Oklahoma for the purpose of being applied to the public schools in the state or states thereafter to be erected out of said territory was a legislative grant of said lands to the territory of Oklahoma, and that the territory had such title in said land as would entitle it to recover the value of any part of the same taken by the railway company for the purpose of constructing its line of railway. The trial court sustained the contention of the railway company, and instructed the jury that the only interest the territory had at the time the railway company appropriated said land and at the time of the trial of the case was the right of possession and user for the purpose of collecting the rents, and that such right would continue so long as Oklahoma remained a territory, and no longer, and that the measure of damages which the territory of Oklahoma was entitled to recover was the rental value of 3.1 acres taken by the railway company for its right of way, together with any depreciation in the rental value of the remainder of the quarter section of land by reason of the railway company's constructing its line of the railway thereon from the time the same was taken by the railway company until such time as the territory of Oklahoma should become a state.
¶3 That portion of the Organic Act which reserves sections 16 and 36 in each township reads as follows:
"That sections numbered sixteen and thirty-six in each township in said territory shall be, and the same are hereby, reserved for the purpose of being applied to public schools in the state or states hereafter to be erected out of the same."
¶4 Counsel for the territory vigorously insist that title to the public domain of the United States may pass by legislative grant as well as by patent, and this contention, we think, is true; but this does not answer the question involved in this case. The question is, was there a legislative grant of sections 16 and 36 in each township to the territory of Oklahoma by virtue of the foregoing provision of the Organic Act? If there was, then the territory was vested with the title to said land and could recover for the appropriation of the same. The Supreme Court of Kansas, in State of Kansas v. Stringfellow, 2 Kan. 263, construing the provisions of the Organic Act providing for the establishment of territorial government in the territory of Kansas, held that the provision therein reserving certain lands for school purposes was a legislative grant, and passed the title to the territory of Kansas. The section of the Organic Act of the territory of Kansas by which certain lands are reserved for school purposes reads:
"And be it further enacted, that when the lands in the said territory shall be surveyed under the direction of the government of the United States, preparatory to bringing the same into market, sections numbered sixteen and thirty-six in each township in said territory shall be, and the same are hereby, reserved for the purpose of being applied to schools in said territory and in the states and territories hereafter to be erected out of the same."
¶5 The Supreme Court of Utah, in United States v. Lewis A. Scott Elliot, 7 Utah 389, 26 P. 1117, in construing the school land provision of the Organic Act of the territory of Utah, which provision is in identical language of the provision of the Organic Act of the territory of Kansas, held that the language of said act reserving sections 16 and 36 in each township was a legislative grant, and that the title in the territory of Utah became complete as soon as the land was surveyed; but the same language has been construed by other courts as not creating a grant, but as having only the effect to segregate the lands described therein from the public domain in so far as the purpose of sale or homestead entry is concerned. Barkley v. United States, 3 Wash. Terr. 522, 19 P. 36; United States v. Bisel, 8 Mont. 20, 19 P. 251. Judge Brewer, now Associate Justice of the Supreme Court of the United States, as United States circuit judge for the Eighth circuit for the district of Nebraska, held in Union Pacific Ry. Co. v. Douglas Co., 31 F. 540, that the effect of the provisions of the Organic Act of the territory of Nebraska (Act May 30, 1854, c. 59, § 16, 10 Stat. 283) reserving certain lands for school purposes (the language of which is the same as the corresponding section of the Organic Act of Utah, Washington, Montana, and Kansas) was only that, when such lands had been once reserved by Congress, Congress will not be presumed to have intended a disposal of them in any other way unless the intent is clearly expressed in the act of Congress, and he further held in that case that the grant of Congress to the Union Pacific Railway Company of a right of way by Act Cong. July 1, 1862, c. 120, § 2, 12 Stat. 491, gave to the company a right of way across the school lands of the territory of Nebraska reserved by the provision of the Organic Act of said territory of 1854; thus clearly holding that ...
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