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tion a line of railroad from the present termi-, build to the city of Guthrie, and the spirit of nus of its line in the Indian Territory to the the contract is that the road should be built city of Guthrie, Oklahoma Territory. (Sign- so as to afford the people of the city of Guthed] U. C. Guss." The road was built on its rie and those living in that community the adown right of way to a point about 200 or vantages of such road as an independent 300 yards north of the corporation boundary line. Under the record this has been done. of the city, and from there its trains ran over The contract has been substantially complied the tracks of the Santa Fé Railway Com- | with. If it was the desire of those giving Dany to the passenger depot of that company. aid to the railroad company that it build and which the Ft. Smith & Western Railroad maintain separate and independent depot and uses in common with such company.


terminal facilities, they should have so pronote in question was transferred to the Fed- vided in their contracts. Under the record eral Trust Company, and, payment having there has been a reasonable compliance with been refused by Mr. Guss, it commenced this the contract on the part of the railroad comaction in the district court of Logan county, pany, and the appellant should pay the note, which resulted in a judgment in its favor, unless he can show some other defense. and the defendant has prosecuted this ap- But it is insisted that this and other notes peal.

were executed under the terms of another The pleadings, the evidence, and the briefs contract in writing, entered into between the cover a very wide range and present many | railroad company and the citizens of Guthrie, supposed issues, which at first blush tend to through and in the name of the Guthrie Club, impress one with the idea that the questions of Guthrie, under date of February 20, 1902. involved are difficult of solution; but when The contract is as follows: we take the facts as disclosed by the evi

"Guthrie, Okla., Feb. 20, 1802. dence, and apply to them a few simple, well- "Contract and Agreement by and between established principles of law, the complica- ! the Ft. Smith & Western Railroad Company tions are imaginary, and not real. We have and the Guthrie Club of Guthrie, Oklahoma. examined the record and briefs with a view This contract and agreement, entered into this of determining, if possible, what advantage, | 20th day of February, A. D. 1902. by and beif any, was taken of the appellant in this tween the Ft. Smith & Western Railroad transaction, but are forced to the conclusion Company, duly organized, incorporated, and that the real defense is the usual one of doing business under the laws of the state "ought not to pay,” under the assignment of of Arkansas and the Indian Territory and error “that the obligation runs to a railroad Oklahoma Territory, and for convenience company and public policy prohibits a rail- hereinafter designated the party of the first way company from accepting aid in the build-part, and the citizens of the city of Guthrie, ing of its road.” That a note or contract of Oklahoma Territory, acting by and through the character involved in this case is not the Guthrie Club, of Guthrie, Oklahoma, an against public policy has been declared by organization duly

organization duly incorporated under the this court after full consideration. The ques- laws of Oklahoma Territory, having for its tion is no longer an open one. W. B. Piper v. primary purpose the development of the busiChoctaw Northern Townsite & Improvement ness interests of the city of Guthrie, and Company, 16 Okl. 436, 85 Pac. 965. In the which said Guthrie Club, of Guthrie, Oklacase of McGuffin v. Coyle & Guss, 16 Okl. homa, is for convenience hereinafter desig648, 85 Pac. 954, 86 Pac. 962, decided some nated the party of the second part, witmonths prior to the case just referred to, nesseth, that this court recognized the validity of such “Whereas, said first party did on the 24th contracts, where made for the benefit of the day of January, 1902, submit to the citizens railroad company, but by a divided court de- of the city of Guthrie, Logan county, Oklanied recovery in that particular case, for the homa Territory, a proposition wherein and reason that the contract on its face ran to an whereby said first party proposed and offered officer of the company, holding that that fact to extend its line of railway from its present was sufficient to authorize the inference that terminus in the Indian Territory to the city the contract was made for the benefit of the of Guthrie, Logan county, Oklahoma Terriofficers of the company, and not for the bene- tory, provided the citizens of said city of fit of the railroad company itself. By the Guthrie would make, execute, and deliver terms of the contract in this case the appel- their promissory notes to said first party of lant agreed to pay to the Ft. Smith & West- the value of fifty thousand dollars ($50,000.00). ern Railroad Company $500 when that com- and also secure for the use and benefit of pany (using the language of the contract) said first party the passage by the mayor "shall have in operation a line of railroad and council of the city of Guthrie such ordifrom the present terminus of its line in the nances as should in the opinion of said first Indian Territory to the city of Guthrie, Ok- party be necessary and essential for the use lahoma Territory." The road was built and of said first party in the construction and in operation before this suit was commenced. operation of its line of railroad in said city; It is true that it is insisted that the company and had not built its line of road into the city; "Whereas, said proposition as in substance but it did not agree to do so. It agreed to above set forth was by the citizens of said

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city of Guthrie in a public meeting duly ac-, of Guthrie, said first party hereby stipulates cepted, and in compliance therewith the citi- and agrees to and with said second party that zens of the city of Guthrie have executed and it will within ninety (90) days from the 1st caused to be executed promissory notes to the day of February, 1902, begin the work of amount, as shown by their face, of approxi- | grading for its line of railroad as above demately fifty-four thousand dollars ($34,000.00), scribed between the city of Guthrie and a and have the same now ready for delivery, point on the St. Louis & San Francisco Railand the mayor and common council of said | road, between the city of Chandler, Oklacity of Guthrie have by the passage of ordi- | homa, and a point five (5) miles west of the nances permitted said first party to construct city or town of Wellston in said territory; and operate its line of railway into and that its entire grade for its line of railroad through the city of Guthrie, as requested by from the present terminus of its line in the said first party; and

Indian Territory to the city of Guthrie, Okla"Whereas, there being a question involved homa Territory, shall be completed within as to whether or not the promissory notes fifteen (15) months from February 1, 1902; above and herein referred to are of the full and that said line of railroad from the termvalue of fifty thousand dollars ($30,000.00), in inus above named in the Indian Territory lieu of additional subscriptions and in pay shall be constructed and in operation within ment by said first party of the sum hereinaft- eighteen (18) months from said 1st day of er designated, the major and common council | February, 1902. of said city of Guthrie have by resolution “The party of the first part hereby exduly enacted, passed, approved, and directed ecutes the above and foregoing contract this a contract to be entered into between the 20th day of February, 1902. city of Guthrie and said first party herein "The Ft. Smith & Western Railroad named, whereby the said city of Guthrie

Company, shall, for a period of five (5) years from the

"By Geo. Ilayden, Its President. 1st day of January, 1903, furnish a supply of “The party of the second part hereby exwater for the use of locomotives, yards, and ecutes this contract this 20th day of Feby., terminals of said first party; and

1902. “Whereas, said first party, for the pur- “The Guthrie Club, of Guthrie, Oklahoma, poses of convenience and to enable it to more

"By C. M. Barnes, Its President. readily carry out its purposes in building its “Attest: Frank B. Lucas, Secretary. [Seal.)" line of railway as proposed and understood The appellant has misapprehended the between the parties hereto, did on the 11th scope of this contract. So far as the $500 day of February, 1902, file articles of incor- contract is concerned, it has absolutely nothporation in the office of the Secretary of the ing to do with this contract, and the appelterritory of Oklahoma and thereafter receive lee's rights to recover are found entirely outa charter under the name of the 'Ft. Smith side of any of the provisions contained in the & Western Railroad Company in Oklahoma.' one just quoted above. The appellant's conpermitting the construction of a line of rail tract for the payment of the $500 is a conroad, from the east line of Lincoln county in tract direct with the railroad company, and said territory to the city of Guthrie therein, its terms cannot be enlarged or restricted by which line of railroad, when constructed, is anything found in the contract between the to connect with and become a part of the press railroad company and the Guthrie Club. The ent line of railroad now being operated and appellant's contract is conditioned upon the constructed and owned by said first party, and performance of two things: First, that the which said last-mentioned line will, when road be built; and, second, that it be put in completed, be operated from Ft. Smith, in the operation. There is not even any time stat. state of Arkansas, to the western boundary ed when these things shall be done. The of the Creek Nation in the Indian Territory, most that can be said is that the railroad and there connect with, and become a part company could bind the appellee only upon of, the line of railroad to be constructed and compliance with the terms of the contract operated in Oklahoma Territory as hereinbe- within a reasonable time. That is not true fore described and set forth:

with the contract with the Guthrie Club. It "Xow, therefore, for the purpose of fully fixes a time in which the railroad company carrying out and expressing the purposes and shall perform the things named therein. Perintention of the parties hereto, and in con- haps it will be well to analyze its provisions sideration of the surrender to said first party briefly. of the promissory notes hereinbefore men- The first statement is that the contract is tioned, and in further consideration of the between the Ft. Smith & Western Railroad ordinances enacted and resolutions passed | Company and the Guthrie Club, of Guthrie, by the mayor and council of the city of Guth- Oklahoma. In the next sentence it recites rie, and the further promise upon the part | the contract is with the Ft. Smith & Western of said second party to cause the passage Railroad Company and the citizens of the and enactment of such other ordinances upon city of Guthrie, Oklahoma Territory, acting the part of said mayor and council as may be by and through the Guthrie Club, of Guthrie, found necessary for the construction and Oklahoma, having for its primary purpose operation of said line of railroad in said city I the development of the business interests of the city of Guthrie. The question at once , passed a resolution whereby the city, for a arises: Who is meant in the contract by period of five years from the 1st day of Jan"the citizens of the city of Guthrie"? The uary, 1903, were to furnish a supply of water position that it refers to those who signed for the use of locomotives, yards, and terthe notes is not tenable; for, if those con- minals of the railroad company. The lantracting intended to protect the interests of guage of this particular clause of the conthat class alone, they would have said so tract is as direct and positive as it is posin plain and unambiguous words. And, sible for language to make it. Let us read again, that class bad individually contracted it in this connection: "Whereas, there being with the railroad company direct. They had a question involved as to whether or not not appointed the Guthrie Club as their the promissory notes above and herein re agent, and the club did not assume to act ferred to are of the full value of fifty thoufor them. They claimed to represent the sand dollars, in lieu of additional subscripcitizens of Guthrie-those who had not con- tions and in payment by said first party of tributed, as well as those who had. The the sum hereinafter designated, the mayor club was not acting for those who gave their and common council of said city of Guthrie notes, but was looking after the building up have by resolution duly enacted, passed, apof the city, and with that object in view it proved, and directed a contract to be enmade a contract with the railroad in its own tered into between the city of Guthrie and name; for it could not contract on behalf of said first party herein named, whereby the the people as a whole in the name of the said city of Guthrie sball, for a period of citizens of Guthrie, because the entire people five (5) years from the 1st day of January, can contract only through their duly elected 1903, furnish a supply of water for the or appointed officers. We shall not at this use of locomotives, yards, and terminals of time attempt to express any opinion as to said first party.” Then follows the last the legality of this contract with the Guthrie clause of the contract. It says: "Now, thereClub, and shall discuss its provisions only fore, for the purpose of fully carrying out in so far as it appears necessary to determine ar expressing the purposes and intentions its bearing upon the contract executed by the of the parties hereto, and in consideration appellant. However, the more the contract of the surrender to said first party of the is examined, the more unsound appears the promissory notes hereinbefore mentioned, and appellant's contention.

in further consideration of the ordinances We come now to a consideration of the sub- enacted and resolutions passed by the mayor stance of the contract itself. It provides and council of the city of Guthrie, and the that, "whereas, the railroad company pro- further promise upon the part of said second posed and offered to extend its line of rail- | party to cause the passage and enactment of way from its present terminus in the Indian such other ordinances upon the part of said Territory to the city of Guthrie, provided mayor and council as may be found necesthe citizens of that city would make, execute, sary for the construction and operation of and deliver their promissory notes of the said line of railroad in said city of Guthrie, value of fifty thousand dollars to the rail- said first party hereby stipulates and agrees road company, and also secure for the use to and with said second party that it will, and benefit of the railroad company the pas- within ninety (90) days from the 1st day of sage by the mayor and council of the city of February, 1902, begin the work of grading Guthrie such ordinances as should in the for its line of railroad as above described opinion of the railroad company be neces- between the city of Guthrie and a point on sary and essential for the use of the com- the St. Louis & San Francisco Railroad, bepany in the construction and operation of its tween the city of Chandler, Oklahoma, and line of railroad in the city.” The contract a point five (5) miles west of the city or then recites that the citizens of Guthrie at town of Wellston, in said territory; that its a public meeting accepted the proposition o. entire grade for its line of railroad from the the railroad company, and that the ordi- present terminus of its line in the Indian nances permitting the company to construct | Territory to the city of Guthrie, Oklahoma

and operate its road into and through the Territory, shall be completed within


city of Guthrie had been passed, and notes of the face value of fifty-four thousand dollars had been executed and were now ready to be delivered. Here is where we come to the vital portions of the contract—those portions which show what the parties had in mind at the time and the considerations which led to the making of the contract. A doubt had arisen in the minds of the parties interested as to whether the notes that had been executed, although of the face value of $54,000, were in fact worth $50,000, and instead of securing more notes the city of Guthrie, by its mayor and common council,

(15) months from February 1, 1902; and that said line of railroad, from the terminus above named in the Indian Territory to the city of Guthrie, in Oklahoma Territory, shall be constructed and in operation within eighteen (18) months from the 1st day of Felruary, 1902." Then the contract is signed: "The Ft. Smith & Western Railroad Company, by Geo. Hayden, Its President," and "The Guthrie Club, of Guthrie, Oklahoina, by O. M. Barnes, Its President. Attest: Frank B. Lucas, Secretary. [Seal.]"

The Guthrie Club had in its possession these notes for $54,000. It had also secured the passage of certain ordinances, and agreed pany and the Guthrie Club, he could have no to secure the passage of others if they be- interest in its subsequent modification. came necessary; and in consideration of It is also contended by appellant in his these ordinances and the delivery of these brief, as well as alleged in his pleading, that notes the railroad company agreed to com- there was no consideration for the note in plete its road and have it in operation with- question, for the reason that the railroad in a certain time. These notes, however, company had concluded to build the line to were to be delivered as they were originally Guthrie before the proposition was made by executed and as they then existed. The con- the company's officials that it would do so if tract nowhere attempts to modify the terms

the citizens of Guthrie would give notes of and conditions of the notes, and the conten- the value of $50,000. Even if this were true,

it would not defeat recovery, unless representhe Guthrie Club is void as against public

tations were made which deceived the appelpolicy, in that it is agreed therein to secure

lant, and without which representations he legislation from the city council, may, for

would not have given the note in controversy. the sake of argument (but for that purpose We have read appellant's evidence carefully, alone at this time), be conceded, and still and are fully satisfied that he was not dethe appellant is bound on his note. Although ceived. In fact, he does not claim that he this contract recites in one place that it is

was deceived. executed by the Guthrie Club for the citizens From these observations it necessarily folof Guthrie, it is apparent, and such is the

lows that the judgment of the lower court legal effect, that it executed the contract should be affirmed. In the business world for and on behalf of itself, and the promise

nothing is more sacred than the right of to complete the road and have it in operation

contract; and one of the highest duties of within a stated time is a promise to the club, courts is to compel obedience to their terms and not a promise to either the city of

by those who make them, when there exists Guthrie, or its citizens as a municipality, or

no valid reason for relieving either of the to the makers of the notes. What considera

parties from the performance of the condition flowed from Guss to the railroad com- tions thereof. And in these times, when pany for the promise in this contract that the

much is being done to enforce railroads to road should be built and in operation within

conform to the law and respect their obligathe time stated therein? It cannot be said

tions, care should also be exercised to the to be the $500, because he had already agreed

end that, through passion and prejudice, they personally, in the note signed by himself, to

be not deprived of that to which they are pay that when the road was built and in

lawfully entitled. The evidence in this case operation, and this note specified no time

discloses that the appellant is a man of exfor the building of the road. If the Guthrie

perience, and that he has in the past been Club had agreed in this contract that the

interested in making contracts of a similar appellant and others giving notes should

character to the note in controversy. He has contribute an additional sum in the event

offered absolutely no legal excuse why he that the railroad company failed to realize

should not pay this note. Therefore the law, $50,000 on these notes-that is, that he, to

through its agencies, will compel him to do gether with those who were responsible,

The trial court properly directed a vershould increase the amount of their respec

dict for plaintiff. A judgment for the detive notes pro rata and make up the sum

fendant, under the evidence, could not have which the railroad company failed to collect

been sustained. -would it be presumed that this appellant

The judgment of the lower court is hereby would not, if sued upon this contract, deny

affirmed. All of the Justices concurring, exthe power of the club to bind him? Of course

cept BURFORD, C. J., who presided at the he would, and no court would hold that the

trial below, not sitting. HAIWER, J., not club had such power under the facts disclosed

sitting, and IRWIN and GARBER, JJ., abby this record. If the club could not change

sent. the terms of his note, so as to increase his liability, it could not by a separate, inde

(19 Okl. 1) pendent contract, executed without express ENID & ANADARKO RY. CO. v. KEPIIART. authority from him, reduce his liability below

(Supreme Court of Oklahoma. Sept. 6, 1906. that to which he had agreed in his note.

Rehearing Denied Oct. 12. 1907.) The Guthrie Club, after the railroad com

1. PUBLIC LANDS-GRANT IN AID OF RAILpany failed to complete the road within the ROADS--RigiT OF WAY. time specified in the contract which we have

A railroad company appropriating land for just been considering, made another agree

its right of way across a tract of land covered

by the homestead entry of another becomes an ment with the railroad company extending unlawful trespasser, and obtains no right either the time for completing the road and putting in law or equity to the land. it in operation. This contract is also dis

[Ed. Note.--For cases in point, see Cent. Dig. cussed at some length by both parties; but

vol. 41, Public Lands, $S 24+246.) it is not necessary to consider it. Having


RIGHT OF WAY. held that Mr. Guss was not privy to the A homestead entry, valid upon its face, confirst contract made between the railroad com- stitutes such an appropriation and withdrawal

of the land as to segregate it from the public and grade, running and extending through domain, and precludes it from subsequent ap

and across said tract of land in a diagonal propriation for right of way for railroad purposes under the act of 1875. granting right of direction from the north to the south line way to railroad companies through the public : thereof, and thereby occupied, and forcibly lands of the United States.

excluded plaintiff from a strip of valuable [Ed. Note.-For cases in point, see Cent. Dig. land 100 feet in width through and across the vol. 41, Public Lands. $8 24+2416.]

most valuable portion of said tract, to the 3. SAME – CANCELLATION OF ENTRY — EFFECT damage of the plaintiff in the sum of $1,900. ON RIGHT OF WAY. Where A. has a homestead entry upon a

In the amended answer, relied upon by the tract of governinent land subject to homestead , defendant, and upon which the cause was entry, and B. enters thereon while said entry

submitted, the defendant admitted that it is intact, and makes settlement, and a railroad company enters and appropriates a strip 100

was a corporation, and, in addition to a genfeet wide across said tract for its right of way,

eral denial, alleged that on the 6th day of having filed its articles of incorporation and February, 1902, and prior to the date of plainprofile maps with the Secretary of the Interior,

tiff's homestead entry, and prior to his setand the same having received his approval under the act of 1899, providing for condemnation

tlement upon the land, it filed with the Secproceedings and payment; and thereafter B. by retary of the Interior a copy of its articles contest proceedings in the United States Land of incorporation, and due proofs of its organiOffice secures the relinquishment of A. to be filed in the United States Land Office, and

zation under the same, and located its line immediately thereafter makes homestead entry of railway, and within 12 months after makfor said tract under a preference right as suc- ing said location, and prior to the settlement cessful contestant, and complies with all the

and entry of plaintiff, caused to be filed with provisions of the law to preserve said entryheld, that the cancellation of A.'s entry did not

the register of the Land Office at Lawton, Okl. cause a reversion of the right of way to the T., in the land district in which the land railroad company under the act of 1875. grant

was situated, a map and profile of its road ing right of way to railroad companies through the public lands of the United States.

showing a section thereof 30 miles in length, [Ed. Note. For cases in point, see Cent. Dig.

and as constructed and operated through vol. 41, Public Lands, SS 24+216.)

said tract of land; that said map and proBurford, C. J., and Burwell and Pancoast, file was duly approved by the honorable SecJJ., dissenting.

retary of the Interior in the month of Feb)(Syllabus by the Court.)

ruary, 1902, and prior to said settlement and

entry, and prior to the time that the rights Error from District Court, Comanche County; before Justice F. E. Gillette.

of the plaintiff, if any, had been acquired

or attached to said land, subject to the right Action by James A. Kephart against the Enid & Anadarko Railway Company. Judg

of way of the railway company; that the

defendant entered upon the tract of land, ment for plaintiff. Defendant brings error.

described in plaintiff's petition, and constructAffirmed.

ed a continuous line of railway grade and On the 29th day of January, 1903, the de- road through and across said land, and ocfendant in error, James A. Kephart, brought

cupied, for railway purposes, a strip of land this action in the district court of Comanche

100 feet in width through and across said county to recover damages from the plain- tract; that the defendant completed its 30tiff in error, Enid & Anadarko Railway Com- mile section of the road within one year after pany, a corporation, for the wrongful and

its said location; and that the land of the unlawful invasion, appropriation, and occu- plaintiff at the time of the location of the depancy of a certain portion of his land for

fendant's railway line, and the filing of said railroad purposes. The case was tried to the

maps and plats, was a part of the public court upon an agreed statement of facts, re- lands of the United States. Plaintiff replied sulting in a judgment for plaintiff in the

denying each allegation of said answer not sum of $575, and defendant brings the case

admitted by the petition or reply, and allegto this court, alleging error.

ed that on the 3d day of September, 1.901, In his petition the plaintiff below alleged. William Gillies made homestead entry for substantially, that he is the homestead entry- said land; that on or about February, 1902. man, occupant, and claimant for the X. W'.

and prior to the attempted occupancy and 14 of section 10, in township 2 S. of range appropriation by the defendant, plaintiff 11 W. I. M., in Comanche county, Okl. T., made settlement on the tract of land to eshaving made homestead entry Xo. 10,324 on tablish his residence thereon, and has rethe 31st day of July. 14). at the United

sided on the land ever since: making it his States Land Office at Lawton, Okl.; that he

home to the exclusion of any home elsewhere, now resides thereon, and is in the lawful,

with the intent to acquire title thereto under exclusive, and peaceable possession thereof. the homestead laws of the United States; save and except for the wrongful arts and that on March 4, 1902. plaintiff filed a contrespasses of the defendant, plaintiff in error test against the entry of Gillies, charging herein; that the defendant wrongfully and ; speculation, and abandonment, which was the unlawfully entered upon suid trart of landi only valid pending contest against said entry without the consent, and over the express at the time when Gillies filed his relinquishobjection, of plaintiff, and, by excavation ment; and that by virtue of such pending and fill, constructed a railway embankment contest plaintiff acquired a preferred right

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