U.S. v. Choctaw, O. & G.R. Co.
| Decision Date | 07 September 1895 |
| Citation | 41 P. 729,3 Okla. 404,1895 OK 83 |
| Parties | UNITED STATES ex rel SEARCH et al. v. CHOCTAW, O. & G. R. CO. et al. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. By an act of congress approved February 18, 1888, the Choctaw Coal & Railway Company, a corporation, was invested and empowered with the right of locating and constructing a railway through the Indian Territory "by the most feasible and practicable route." The conditions precedent stated in the act were: (1) That the corporation is authorized to use a right of way 100 feet in width through said territory; and (2) for all the purposes of railway, and for no other purpose; and (3) to take and use a strip of land 200 feet in width, with a length of 3,000 feet, in addition to the right of way, for stations, for every 10 miles of road; and (4) 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 roadbed, not to exceed 100 feet in width on each side of the right of way; and (5) that no more than such addition of land shall be taken for any one station; and (6) that no part of the lands authorized to be taken should be leased by the company; and (7) that they should not be used except in such a manner, and for such purposes only, as should be necessary for the construction of said railroad; and (8) that when any portion thereof shall cease to be used such portion should revert to the nation or tribe of Indians from which the same should be taken; and (9) that full compensation should be made to individual occupants according to the laws, usages, and customs of any of the nations or tribes through which it might be constructed; and (10) that, in case of failure to make amicable settlement compensation was to be determined by the appraisement of three referees, one to be appointed by the president, one by the chief of the nation to which said occupant belongs, and one by the railway company, together with provisions for appeal to the district court; and (11) that upon the hearing of the appeal, if judgment was for a larger sum than the award of the referees, the costs of appeal were to be adjudged against the railway company; and (12) that when proceedings were commenced in court the railway company was to pay double the amount of the award into court, to abide the judgment thereof, before having the right to enter upon the property; and (13) that the railway company was to pay to the secretary of the interior, for the benefit of the particular nations or tribes through whose lands said railway may be located, the sum of $50 per mile, in addition to compensation provided for in this act. The defendant company complied with all these conditions before filing its map of survey in the department of the interior, and submitting it to the secretary of the interior for his approval. It is also provided in the act, as conditions subsequent, that, (1) when any portion thereof (that is, of the land over which the right of way was granted) shall cease to be used, such portion shall revert to the nation or tribe of Indians from which the same shall be taken; and (2) that congress shall have certain rights, so long as said lands are occupied and possessed by said nations and tribes, etc.; and, in section 7, (3) that the servants of the company may reside upon the right of way, but subject to the provisions of the Indian intercourse laws, and such rules and regulations as may be established by the secretary of the interior in accordance with said intercourse laws; and (4) concurrent jurisdiction is provided over controversies arising between said railway company and the nations and tribes through whose territory said railway shall be constructed, in the United States circuit and district courts for the Western district of Arkansas and the Northern district of Texas (it being here observed that jurisdiction over controversies is provided for between the railway company and Indian nations or tribes alone, and not between either of them and any white citzen or citizens of the United States); and (5) that all mortgages executed by the railway company upon any portion of its railroad were to be recorded in the department of the interior. The act provided "that when a map showing any portion of said railway company's located line is filed as herein provided for, said company shall commence grading said located line within six months thereafter or such location shall be void; and said location shall be approved by the secretary of the interior in sections of twenty-five miles before construction of any such section shall be begun." By a second act of congress, approved February 13, 1889, amending section 1 of the act of 1888, the company was authorized to build a branch line of railway, by the "most feasible and practicable route," to an intersection with the Atchison, Topeka & Santa Fé Railway Company, in what was then the northwestern part of the Indian Territory. In 1890 the company filed in the department of the interior a map of the route, running from a point near the eastern line in Oklahoma, in a westerly direction within the territory of Oklahoma, through the Pottawatomie Indian Reservation, to a point about 25 miles east of Oklahoma City where it connected with another section of 25 miles, which had been theretofore approved by the secretary of the interior. By Act Cong. May 2, 1890, the lands in question had been included within the territory of Oklahoma, subject to the provision that: "Nothing in this act shall be construed to impair any right now pertaining to any Indians or Indian tribe in said territory under the laws, agreements and treaties of the United States, or to impair the rights of personal property pertaining to said Indians, or to affect the authority of the government of the United States to make any regulation or to make any law respecting said Indians their lands, property or other rights which it would have been competent to make if this act had not been passed." Upon the opening of the Pottawatomie Reservation to white settlement, the town site of Tecumseh was reserved, under the direction of the land department, for a town site, and the county seat of Pottawatomie county was located thereupon. The map for this section, filed in 1890, was not acted upon by the secretary of the interior, and it was not built upon by the railway company. The company became insolvent, its property was about to be sold, under foreclosure of mortgage for the payment of its debts; and the road was, by reason thereof, reorganized in 1894 under an act of congress approved August 24, 1894, by which the defendant the Choctaw Oklahoma & Gulf Railroad Company was incorporated, and authorized to purchase the property and franchises of the Choctaw Coal & Railway Company, and was "vested with all the right, title, interest and property in and to the rights of way and property of the said company, with all the rights powers, immunities, privileges and franchises which had been hitherto conferred upon said company," and was required to do all the things necessary to enable the said company to maintain, use, and operate the railroads which it might become possessed of, in conformity with the provisions of the act of congress relating to and affecting the Choctaw Coal & Railway Company. The defendant company, in pursuance of the authority here given, purchased the property, rights, and franchises mentioned on the 3d day of October, 1894, and made a survey of a section of 25 miles of the said railway from the point on the eastern line of Oklahoma to a point about 25 miles east of Oklahoma City, and which is designated in these proceedings as section 4 of its railway survey, and upon its railway map, and, at the request of the secretary of the interior, filed the said map in the department of the interior, and presented it to him for his approval in December of 1894. The survey of 1890 was located 3 1/2 miles from where the town of Tecumseh now is (and which was not then built or located) upon the amended map so presented to the secretary. The survey of 1894 was located between 5 and 6 miles from that town. Upon February 15, 1895, the secretary of the interior expressed his disapproval of the map filed in the department of the interior in December, 1894, except where its line coincides with the line shown upon the original map of the fourth section, filed in the Indian office in 1890. The defendant company has complied with all the conditions precedent designated above, under the numbers 1 to 13, before filing the map of survey, and submitting the same to the secretary of the interior for his approval. Thereupon the defendant company proceeded to grade its line through Oklahoma and Pottawatomie counties, crossing public roads, school lands, and through the Kickapoo Indian Reservation, which had been several years previously set apart, by executive order of the president, as a reservation for the occupancy of the Kickapoo tribe of Indians. The fee-simple title to said lands was in the United States, subject to the occupancy of the Kickapoo Indians by the executive order of the president. By agreement made September 9, 1891, the Kickapoo Indians ceded and relinquished all their interest in the lands to the United States government. This agreement was ratified and confirmed by acts of congress approved March 3, 1893. The agreement provided that each of said Kickapoo Indians should receive an allotment of 80 acres, and that said allotments should be held in trust by the secretary of the interior, for the individual Indians, for the period of 25 years, and that the allotments should not be subject to alienation, and that upon their being made the remainder of the reservation should be opened for settlement by white...
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