United States v. Choctaw, Okla. & Gulf R.R. Co.

• Decision Date: 07 September 1895
• Citation: 1895 OK 83,41 P. 729,3 Okla. 404
• Court: Oklahoma Supreme Court
• Parties: THE UNITED STATES OF AMERICA, on the Relation of WILLIAM S. SEARCH, SAMUEL CLAY, WRIGHT CHRISTIAN, EDWARD J. KELLEY AND GEORGE A. OUTCELT v. THE CHOCTAW, OKLAHOMA & GULF RAILROAD COMPANY, a Corporation, GEORGE S. GOOD AND GEORGE S. GOOD & COMPANY, a Co-Partnership.

1895 OK 83

41 P. 729

3 Okla. 404

THE UNITED STATES OF AMERICA, on the Relation of WILLIAM S. SEARCH,SAMUEL CLAY, WRIGHT CHRISTIAN, EDWARD J. KELLEY AND GEORGE A. OUTCELT v. THE CHOCTAW, OKLAHOMA & GULF RAILROAD COMPANY, a Corporation,GEORGE S. GOOD AND GEORGE S. GOOD & COMPANY, a Co-Partnership.

Supreme Court of Oklahoma

Decided: September 7, 1895

Error from the District Court of Pottawatomie County.

STATEMENT OF THE CASE.

This is an injunction proceeding in which the plaintiff below, plaintiff in error here, prayed that an injunction be issued commanding each and every of the defendants, their officers, servants, employes, agents, contractors and workmen and all persons acting for or representing the defendants, to refrain from any further construction, or completing, a railroad described in the bill of complaint upon the line of its proposed location, as shown by a map filed in the office of the secretary of the interior in the year 1894, and from building, constructing, maintaining, operating, or in any manner using, a railroad upon the location shown by said map, or any other line or route whatsoever, without the approval of the secretary of the interior first being had as provided by the laws of the United States, and that upon the hearing of the cause the order be made perpetual, and for further relief. The case appears from the pleadings herewith given.

The bill of complaint was filed on the 19th day of March, 1895, in the district court for Pottawatomie county, Third judicial district, and sets forth that the United States of America, by Richard Olney, attorney general of the United States, on the relation of William S. Search, Samuel Clay, Wright Christian, Edward J. Kelley and George A. Outcelt, presents this bill of complaint against the Choctaw, Oklahoma & Gulf Railroad company, a corporation organized and existing under and in pursuance of the provisions of the act of congress approved August 24, 1894, and entitled, "An Act to Authorize Purchasers of the Property and Franchises of the Choctaw Coal and Railway Company, to Organize a Corporation and to Confer Upon the Same all the Powers, Privileges and Franchises Vested in the Company," and George S. Good and George S. Good & company, a co-partnership.

Plaintiffs say, that by act of congress approved February 18, 1888, as amended by the acts of congress approved February 13, 1889, entitled, "An Act to Amend an Act Entitled, 'An Act to Authorize the Choctaw Coal and Railway Company to Construct and Operate a Railway Through the Indian Territory' and for Other Purposes," approved February 18, 1888, the Choctaw, Coal and Railway company, a corporation organized and existing under the laws of the state of Minnesota, was granted a right of way for a railroad with the right of locating, constructing, owning, equipping, operating, using, and maintaining a railway, telegraph and telephone lines though the Indian Territory, beginning at a point on Red River * * * 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 the state of Arkansas, also a branch line of railroad to be constructed from the most suitable point on the main line for obtaining a feasible and practicable route in a westerly or northwesterly direction to the leased coal veins of the Choctaw Coal and Railway company in Tobucksey county, Choctaw Nation, and thence by the most feasible and practicable route to an intersection with the Atchison, Topeka & Santa Fe railway, at the most convenient point between Halifaw station and Ear Creek, otherwise known as the North Fork of the Canadian river, and that in and by said act of congress as so amended, it is provided that the said Choctaw Coal and Railway company should cause maps, showing the route of its located lines through said territory, to be filed in the office of the secretary of the interior, and that the location of said lines should be approved by the secretary of the interior, in sections of twenty-five miles, before the construction of any such section should be begun.

That the point of junction of the branch line of the said Choctaw Coal and Railway company with the Atchison, Topeka & Santa Fe railway, as selected, is located in what is now Oklahoma county, in Oklahoma Territory, formerly constituting a part of the Indian Territory.

By subsequent acts of congress the time for the completion of said railroad lines was extended until February, of the year 1896.

In the year 1890, the Choctaw, Coal and Railway company filed in the office of the secretary of the interior a map of the fourth section (of 25 miles or thereabouts) of its said branch road extending from its main line to the proposed junction with the Atchison, Topeka & Santa Fe railway, but the map and the location of section four, as shown thereby, were never approved by the secretary of the interior, nor was any action ever taken by the secretary of the interior in relation thereto, nor was any effort ever made by the Choctaw Coal and Railway company to build thereon, but on the contrary, the matter on the said map, and of the location of the said road as therein described, has been suffered to lapse and become of no legal effect.

That the Choctaw Coal and Railway company, having become insolvent, as recited in the aforesaid act of congress, of August 24, 1894, the right of way, property and franchises of the Choctaw Coal and Railway company were sold under judicial process and decree of a court having jurisdiction in the premises, and thereupon the purchasers at the said judicial sale and acting under and by virtue of the provisions of the act of congress of August 24, 1894, organized in accordance with said provisions the defendant corporation, the Choctaw, Oklahoma & Gulf Railway company.

Whereby the complainant insisted that the Choctaw, Oklahoma & Gulf Railway company succeeded to and became the owners of said Choctaw Coal and Railway company, and became bound by the same limitations and provisions of law in regard to the use, enjoyment and exercise of the same, that had been obligatory upon the Choctaw Coal and Railway company.

That the Choctaw, Oklahoma & Gulf Railway company did not claim to possess any corporate right, franchise, or privilege other than it derives from the aforesaid acts of congress.

That on or about the day of December, in the year 1894, the Choctaw, Oklahoma & Gulf Railroad company filed in the office of the secretary of the interior, in compliance with the provisions of the aforesaid acts of 1888, a map of the route and location of the fourth section of its proposed line of railway from its main line to the junction with the Atchison, Topeka & Santa Fe railway, of which said map and location, proof was to be made, which section begins at or about section four, township eleven, north range two, east of the Indian meridian in Oklahoma county, Territory of Oklahoma, and thence running in an easterly, or slightly southeasterly direction, about six miles through the county of Oklahoma, and about seven and a half miles through the Kickapoo Indian reservation, and about eleven miles in Pottawatomie county in said territory of Oklahoma.

That the map and the location of railway thereby exhibited have never been approved by the secretary of the interior, nor has his consent for construction of the branch line of railway upon the route indicated, ever been granted, but on the contrary, and on or about the 15th day of February, 1895, the secretary of the interior did disapprove in part, the proposed location by writing on the map over his signature the words and figures:

"DEPARTMENT OF THE INTERIOR, Feb. 15, 1895.

"The within map is hereby disapproved except where said line coincides with the line shown upon the original map of the fourth section, filed in the Indian office in 1890.

HOKE SMITH, Secretary."

That the original map of the fourth section thus referred to by the secretary of the interior as having been filed in 1890, is the unapproved map heretofore referred to, of the Choctaw Coal and Railway, with which the location as shown by the map of the defendant railroad company, filed in 1894, does not coincide throughout, but on the contrary, widely departs therefrom, from and between section thirty-five, township ten, north range four, east of the Indian meridian, in Oklahoma Territory, in Pottawatomie county, and section thirty-six, township eleven, north range two, east of the Indian meridian in Oklahoma county, said divergent line passing through the Kickapoo Indian reservation.

The complaint further shows that no map of the location of the fourth section of the railroad has been approved in whole, or in part, by the secretary of the interior.

And the plaintiff alleges and charges that, under the acts of congress aforesaid, it was and is (not) lawful for the Choctaw, Oklahoma & Gulf Railroad company to construct its railroad upon the location so disapproved as aforesaid, or upon any part of the fourth section thereof, or in any location, without the approval, authority and consent of the secretary of the interior, for that purpose to be first had and obtained.

Nevertheless, in disregard of said disapproval and without any approval by the secretary of the interior, of the location shown by the map of 1894, the Choctaw, Oklahoma & Gulf Railroad company, its officers, agents and employes, and the said other defendants, who are contractors with and under the said last named railroad company, for the performance of certain labor or the furnishing of material, or both, in the construction of said road, have begun the construction of said road upon the location of section four, as shown by the map of 1894, and have cut and removed timber from the location, and have graded the line upon the location or portions thereof, upon the said section, as well as upon that part thereof disapproved by the...