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township officers are, the revenue derived there- | 1845, Stat. 1890; section 8173, Rev. Laws from to go into the treasury of such township, 1910); and the plaintiff was thus created the township holds such park in its public or out of the east half of the original territory governmental right in respect to the disposition of the same in a division of said township in accord with statutory authority by erecting a new township out of a portion of its territory not including such park, and the new township can have no cause of action arising out of such division in the absence of statutory grounds for the same.

within the boundaries of the defendant, the said park lands, being within the bounds of defendant and abutting on plaintiff's west boundary line.

In Union Township v. Oakdale Township, 30 Okl. 708, 120 Pac. 968, 39 L. R. A. (N. S.)

[Ed. Note. For other cases, see Towns, Cent. 284, it is held: Dig. §§ 16-19; Dec. Dig. § 11.*]

Commissioners' Opinion, Division No. 1. Error from District Court, Grant County; Wm. M. Boles, Judge.

Action by Liberty Township, a municipal corporation of Grant County, against Rock Island Township, a municipal corporation of Grant county, for an interest claimed in a park formerly within the boundaries of and owned by both townships then comprising one township. Judgment for defendant, and plaintiff brings error. Affirmed.

C. S. Ingersoll and Sam P. Ridings, both of Medford, for plaintiff in error. Parker & Simons, of Enid, for defendant in error.

THACKER, C. The plaintiff in error (Liberty township, of Grant county) brought this action against the defendant in error (Rock Island township, of the same county) for a portion of a park of 60 acres of land within the boundaries of the defendant, or, if that relief could not be granted, for a share of the rents and profits derived from the same; and upon a sustention of defendant's demurrer to its petition elected to stand thereon and brings the case here for review upon the judgment accordingly rendered against it.

"Where a new township is created out of a part of the territory of an old one, unless some provision is made in the act creating the new or exists under the statute respecting the property and existing liabilities of the old township, public property, except such as may be located the old township retains the title to all the in the detached territory, and is responsible for the debts contracted before the division."

In support of that rule, that case cites Winslow v. France, 20 Okl. 303, 94 Pac. 689, and Wilhite v. Mansfield et al., 23 Okl. 246, 99 Pac. 1087. Also, see 1 Municipal Corporations, by Dillon (5th Ed.) §§ 359, 360.

In Pass School District of Los Angeles County v. Hollywood City School District of Los Angeles County, 156 Cal. 416, 105 Pac. 122, 26 L. R. A. (N. S.) 485, 20 Ann. Cas. 87, the said rule was apparently predicated upon the view that a school building is held by the district in which it is situated as a trustee of the state, that is, for state governmental purposes, and not in the merely private or proprietary right of the district as a corporation. And, as indicated by Cummings v. Lobsitz, 142 Pac. 993, and City of Wellington v. Township of Wellington et al., 46 Kan. 213, 26 Pac. 415, also as shown in 1 Municipal Corporations, Dillon (5th Ed.) §§ 109-112, 115, 131, 335, there is a distinction to be observed between the public or governmental and the private or proprietary right in which a municipality holds property as affecting the question of municipal independ

words, the question of its freedom from legislative control and its consequent subjection to the judicial power of the state when controverted questions of right in respect to a disposition of it arise.

It appears from the petition that under a legislative act of March 12, 1897 (sections 5874-5885, Wilson's Rev. & Ann. Stat. 1903), plaintiff acquired 20 acres of land; and un-ence in respect to the same, or, in other der a legislative act of February 27, 1903 (Sess. Laws 1903, pp. 215, 216), it acquired the 40 acres additional for the same purpose. The said acts authorized the defendant to acquire said land for the use of the public, presumably for general park purposes, and for the use of all political, religious, and other societies; also, "for the purpose of holding a fair, or fruit, poultry or other shows," for which an admission fee might be charged, and authorizing license fees for "booth and other privileges." The first of said acts provided for a board of three commissioners, to be elected as other township officers, to provide rules and regulations for and to govern and control the park, including the buildings thereon.

Ordinarily, it seems that where property is held by a municipality in its purely private or proprietary right, as contradistinguished from its public or governmental right, it is within the judicial power of the state to determine all questions growing out of conflicting claims of right in respect to a disposition of the same.

[1] But a township is an involuntary territorial and political division of the state organized for the exercise of a portion of the political power thereof. 38 Cyc. 598. It is only a quasi municipal corporation with little independent corporate life, and with only "such powers and functions and is subject only to such liabilities as are provided

In February, 1911, the defendant township was divided into two townships (under the sixth subdivision of section 1815, Stat. 1890, as amended by Sess. Laws 1897, pp. 116118, and found in the fifth subdivision of by statute." Id. Also, see 38 Cyc. 611. section 1600, Rev. Laws 1910, and section

[2, 3] In running the scale from the high

PER CURIAM. Adopted in whole.

(44 Okl. 405)

est to the lowest forms of municipal-corpo- | townships, but one of legislative wisdom, of rate life, such divisions of the state appear which the courts cannot take cognizance. to be progressively more completely subject For the reasons stated, the judgment to the legislative and less subject to the should be affirmed. judicial power of the state in respect to their property rights; or, in other words, as between such corporations and the state, the former is regarded as progressively farther removed from a relation in which it may assert contractual rights against the (Supreme Court of Oklahoma. Dec. 8, 1914.) state in respect to its rights in property, and its rights in property progressively partake more of a public or governmental and less of a private or proprietary character with such decrease in independent corporate life. In 1 Municipal Corporations, Dillon (5th Ed.) § 116, it is said:

"Public parks, gas, and water in towns and cities may ordinarily be classed as private affairs, but they often become matters of public importance, and, when the Legislature determines that there is a public necessity for their use in a certain locality, it has been said that they cannot be designated as the mere private affairs of the corporation."

In section 117, Id., it is said:

McKEMIE v. ALBRIGHT.

(No. 3517.)

(Syllabus by the Court.)

1. APPEAL AND ERROR (8 1001*)-VERDICTEVIDENCE.

Where there is competent evidence reasonably tending to support the verdict of the jury under proper instructions from the court, this court will not disturb the verdict.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3922, 3928-3934; Dec. Dig. § 1001.*]

2. APPEAL AND ERROR (§ 1050*)-EVIDENCE (§ 158*)-HARMLESS ERROR-ALIENATION OF LANDS REMOVAL OF RESTRICTIONS - BEST AND SECONDARY EVIDENCE.

Where restrictions are removed by order of the Department of the Interior and a sale made under the rules and regulations of such depart"It has been held that, although title to the ment, it is incompetent to prove by oral_testiland within a city forming a public park is mony the removal of the restrictions and sale vested in a city, the control of the public parks of such land, as the records kept by the departbelongs primarily to the state. The authority ment are the best evidence. But under the facts which the common council or park commission- in this case, the admission of such oral testiers of a city may exercise in the control or man- mony was not prejudicial to the plaintiff, as agement of public parks is not derived from the court instructed the jury that plaintiff's the citizens of the municipality within the lim- title was paramount to that of defendant, units of which such parks are situated, but from less the jury found that the lease in question the Legislature. Such parks are held, not for was reassigned to Albright to the knowledge the sole use of the people of a particular mu- of the plaintiff prior to the time that the plainnicipality, but for the use of the general pub- tiff purchased the lease from Bray. It therefore lic which the Legislature represents. Munici- is immaterial as to the strength or weakness palities, in controlling and managing such pub- of the defendant's title, as plaintiff, in order lic parks, act as a governmental agency exer- to recover, must do so upon the strength of his cising authority delegated by the state, and are own title. always subject to legislative control. By virtue of its control over the public parks the Legislature possesses the power to authorize a municipality to devote it to a use which is inconsistent with park purposes, so long as such inconsistent use is some other and higher public purpose which will render its enjoyment by the public more extended and general."

Then, too, the same subject, it seems, may be regarded as public or governmental in one aspect and private or proprietary in another. See Id.

In its aspect as subject of the conflicting claims of right in the present case, we think the park lands are held by the township as an agent or trustee of the state.

We think the park in question was held for public and governmental purposes, and not in the private or proprietary right of the township; that, since a division of the township in which it was acquired and located in accord with legislative authority, such property belongs to the township in which it is situated; that the new township has been divested of no private or proprietary right by the old one, and therefore cannot maintain this action against the latter; and that the question presented for adjudication by the plaintiff's petition is in its last analysis not one of law or equity between these two

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. $$ 1068, 1069, 4153-4157, 4166; Dec. Dig. § 1050;* Evidence, Cent. Dig. $$ 472, 473, 4742-504, 506-526; Dec. Dig. § 158.*]

Commissioners' Opinion, Division No. 1. Error from District Court, Bryan County; A. H. Ferguson, Judge.

Action by Will McKemie against Frank for defendant, and Albright. Judgment plaintiff brings error. Affirmed.

H. A. Ledbetter, of Ardmore, for plaintiff in error. McPherren & Cochran and Chas. P. Abbott, all of Durant, for defendant in

error.

RITTENHOUSE, C. This is an action brought by Will McKemie, plaintiff in error, and also plaintiff below, against Frank Albright for the possession of the north half of the northeast quarter and the northeast quarter of the southeast quarter of the northeast quarter, all in section 28, township 7 south, range 11 east of the Indian Meridian. and asking for damages for the detention of said land for the time plaintiff has been kept out of possession. The plaintiff contends that he is entitled to possession of said lands by virtue of a certain lease con

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

tract, executed October 23, 1908, for a term to section 8 of the Act of Congress of April of five years, by Columbus Dixon, the allottee, to W. T. Pemberton, and by him assigned in writing to B. W. Bray, which assignment was never recorded, and on January 15, 1910, assigned in writing by Bray to Will McKemie. It is contended by the defendant, Frank Albright, that he purchased said land from the allottee after restrictions were removed, and received a warranty deed, which was executed subsequent to the lease.

26, 1906 (34 Stat. 139, c. 1876), which provides that certified copies of any record pertaining to the enrollment of any Choctaw Indian or the disposition of the land and other property of said tribe, when made by the officer having custody thereof, shall be evidence equal with the originals thereof, and calling attention to section 5892, Comp. Laws 1909, which makes similar provision for the use of a certified copy as evidence.

It is undoubtedly true that the best evidence of the removal of restrictions and the sale of an allotment made through the Interior Department are the records of that department; but admission of oral testimony relative to the removal of restrictions and the sale of the allotment, under the facts in this case, could not be prejudicial error. The lease made to Pemberton, which was

[1] Albright introduced in evidence in support of his contention the deed to the allotment and oral testimony of the removal of the restrictions of Columbus Dixon. He contends that, although the plaintiff did secure an assignment of the lease from Bray, to whom said lease was first assigned, Bray agreed with the said Pemberton to reassign said lease to Pemberton, and that the same was by Pemberton re-leased to him, and Al- afterwards assigned, was executed prior to bright went into possession, and further claims that this fact was known to McKemie at the time he purchased the lease from Bray. The court instructed the jury that the lease executed by Columbus Dixon, which was assigned to Bray in writing and by Bray assigned in writing to McKemie, conveyed the right to the use of the land during the term of the lease, regardless of the fact that the defendant had purchased the land, unless the jury should find that Bray had reassigned the lease to Pemberton and the same was by Pemberton re-leased to Albright, and that this fact was known to McKemie on the date that he purchased the lease from Bray. The court further instructed the jury that, when the land had been conveyed either by lease or otherwise by written instrument, the same could not be recovered by an oral agreement, unless the oral agreement was completely executed and carried out. This left to the jury the question as to whether or not the lease was reassigned to Albright after he had purchased the land from the allottee, and also the further question as to whether McKemie had knowledge that the lease had been reassigned to Albright before Bray had assigned it to him. There was sufficient evidence to sustain the verdict of the jury, on the question, and it is a familiar rule of this court that, although there may be a doubt as to the correctness of the verdict

the deed, and under the instructions of the
court the lessee would be entitled to the pos-
session of the premises regardless of the
deed held by the defendant, unless that lease
had been reassigned to the purchaser as was
contended in this case. The question here
is not which of the two interests are para-
mount, but the only question is whether or
not the lease was reassigned to the pur-
chaser; it being apparently conceded that,
if the lease was still a valid outstanding
lease in the hand of the plaintiff, it would
be paramount to the defendant's title. Un-
der these facts, oral evidence of the removal
of restrictions and the sale of the allotment
could in no wise be prejudicial. This ac-
tion is one of ejectment, and plaintiff cannot
recover upon the weakness of the defendant's
title, but upon the strength of his own.
Myers v. Mathis, 2 Ind. T. 3, 46 S. W. 178;
Hurst v. Sawyer, 2 Okl. 470, 37 Pac. 817;
Jennings v. Brown, 20 Okl. 294, 94 Pac. 557;
Mitchell v. Humphrey, 36 Okl. 711, 129 Pac.
744; Young v. Chapman, 37 Okl. 19, 130
Pac. 289.

The cause should therefore be affirmed.
PER CURIAM. Adopted in whole.

(44 Okl. 403) (No. 3496.)

TAYLOR v. SMITH, Sheriff. (Supreme Court of Oklahoma. Dec. 8, 1914.) (Syllabus by the Court.)

reached by the jury, yet we will not, when the evidence is conflicting, examine and weigh the same to determine where the pre-1. REPLEVIN (§ 5*)-RIGHT OF ACTION-EXponderance of the evidence lies, but will sustain such verdict whenever there is any competent evidence reasonably tending to support the same. Lynch v. Halsell, 34 Okl. Lynch v. Halsell, 34 Okl. 307, 125 Pac. 725; McConnell v. Watkins, 140 Pac. 1167, and cases cited.

[2] It is next contended by the plaintiff that the admission of oral testimony as to the removal of the restrictions of Columbus Dixon was prejudicial, and calls attention

EMPT PROPERTY SEIZED UNDER EXECUTION. Under section 4055, St. 1893 (section 4799, Rev. Laws 1910), a distinct action in replevin by the owner will lie against a sheriff wrongfully in possession of exempt property (section 2860, St. 1890, as amended by Sess. Laws 1905, p. 255, the same being section 3342, Rev. Laws 1910) under a writ of execution upon a perowner for debt. sonal judgment in another case against such

[Ed. Note. For other cases, see Replevin, Cent. Dig. §§ 27-37; Dec. Dig. § 5.*]

2. APPEAL AND ERROR (§ 773*)-FAILURE TO FILE BRIEFS-REVIEW-REVERSAL.

Where plaintiff in error has, in compliance with the rules of the court, served and filed his brief, but the defendant in error has neither filed nor offered excuse for failure to file brief, the court is not required to search the record to find a theory upon which the judgment may be sustained, and may reverse the case in accordance with the prayer of the plaintiff in error, if the brief filed appears to reasonably sustain such action.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3104, 3108-3110; Dec. Dig. 773.*]

Commissioners' Opinion, Division No. 1. Error from County Court, Kingfisher County; John M. Graham, Judge.

Action in replevin by Thomas Taylor against Clyde Smith, Sheriff. Judgment for defendant and plaintiff brings error. Reversed and remanded.

murrer is apparent upon such search of the record as we have made; and, for the reasons stated, the judgment should be reversed and the case remanded, with instructions to overrule the demurrer and observe this opinion in further proceedings in this case.

PER CURIAM. Adopted in whole.

(45 Okl. 21)

GEARY MILLING & ELEVATOR CO. v. LANE. (No. 3799.)

(Supreme Court of Oklahoma. Dec. 8, 1914.) (Syllabus by the Court.) REFERENCE (§ 100*)-EVIDENCE BEFORE REFEREE-REVIEW BY COURT-MOTION FOR NEW TRIAL.

Evidence adduced before a referee cannot be reviewed by a trial court unless the findings of the referee are challenged by motion for

Bradley & Bradley, of Kingfisher, for plain- new trial filed in such court within the statutory tiff in error.

THACKER, C. Plaintiff in error brought this action in replevin in the county court of Kingfisher county against the defendant in error for a cow, a calf, a wagon, a set of double harness, and a saddle, in possession of the latter as sheriff of said county, and appealed from a judgment sustaining a demurrer to his petition therefor and denying his right to recover thereon. After this case was brought into this court the plaintiff in error died; and on September 25, 1913, this case was duly revived in this court in the name of Lee Taylor, administrator of the decedent's estate, as plaintiff in error, following such revivor in the trial court.

The essential facts, when not stated, are necessarily presupposed by this opinion, and will therefore be understood.

[1] Under the fifth subdivision of section 4055, Stat. 1893 (section 4799, Rev. Laws 1910), a replevin action will lie against a sheriff who, acting under a writ of execution to satisfy a personal judgment for debt against the plaintiff and in favor of a third party, is wrongfully in possession of personal property owned by and exempt to the plaintiff as the head of a family residing in this state under section 2860, Stat. 1890, as amended by Sess. Laws 1905, p. 255 (section 3342, Rev. Laws 1910); and if, as asserted (without any denial) in brief duly filed for plaintiff, the demurrer was sustained upon the ground that the property, being in custodia legis in another action, in which motion to discharge might have been made, could not be retaken in this distinct action for replevin, the trial court is in error. Irwin v. Walling, 4 Okl. 128, 44 Pac. 219; Blair v. Shew, 24 Kan. 280; Westenberger v. Wheaton, 8 Kan. 169; 34 Cyc. 1368, 1369.

[2] The defendant has neither filed brief nor otherwise appeared in this case in this court, and no ground upon which the trial court might properly have sustained the de

time. In the absence of such motion, the referee's findings become the decision of the court, upon which judgment must be rendered. Cent. Dig. §§ 157-168; Dec. Dig. § 100.*] [Ed. Note.-For other cases, see Reference,

Error from District Court, Seminole County; Tom D. McKeown, Judge.

Action by the Geary Milling & Elevator Company, a corporation, against Samuel W. Lane, trading under the name of the Lane Grocery Company. Judgment for plaintiff for less than the sum found by the referee, and plaintiff brings error. Reversed, with directions to enter judgment on the referee's finding.

C. Dale Wolfe, of Wewoka, for plaintiff in for defendant in error. error. Crump, Fowler & Skinner, of Wewoka,

BLEAKMORE, J. This case presents error from the district court of Seminole county. The parties are referred to herein as they appeared in the court below.

Plaintiff instituted its action against the defendant on an open account for goods, wares, and merchandise alleged to have been sold and delivered. The defendant answered by way of general denial. The cause was referred to a referee to take all testimony and to render complete findings of fact and law. The cause was heard before the referee, who made his findings of fact and conclusions of law, to which the defendant filed exceptions. Thereafter the report of the referee was filed in the court. The referee found that the defendant was indebted to the plaintiff in the sum of $607.19, with interest from the 1st day of July, 1907. No motion for new triai was filed at any time in the court. Upon consideration of the report of the referee it was found and adjudged by the court that the defendant was indebted to the plaintiff in the sum of $427.19, and judgment was rendered in that sum. Motion for new trial was filed and overruled.

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. 'Series & Rep'r Indexes

No briefs have been filed on behalf of the conclusive evidence as to the age of said citidefendant in error. zen or freedman is not unconstitutional and It is contended by the plaintiff that, in-void, but a valid exercise of the authority vested in Congress. asmuch as no motion for a new trial was filed [Ed. Note.-For other cases, see Indians, within three days after the filing of the re- Cent. Dig. §§ 17, 29, 30, 34, 37-44; Dec. Dig. port of the referee, such report was, un-§§ 13, 15.*] der the statute, the decision of the court, as binding and as effective as a special verdict of a jury, that nothing remained to be done by the court, save the rendition of judgment in accordance with such decision, and that, inasmuch as such decision was unchallenged, it was the duty of the court to render its judgment upon such findings.

The question involved has been decided by this court in First National Bank of Shawnee v. Oklahoma National Bank of Shawnee, 29 Okl. 411, 118 Pac. 574, in which case it was said in the syllabus:

"To secure a review of the evidence taken on a trial before a referee, a motion for a new trial must be filed in the trial court, and not before the referee, and, except for the cause of newly discovered evidence, must be at the term the report is filed, and, unless unavoidably prevented, within three days thereafter."

And again:

2. INDIANS (§ 13*)-ALIENATION OF LANDENROLLMENT RECORD AS EVIDENCE-OPERATION OF STATUTE.

That part of said act of Congress, mentioned in the foregoing paragraph, providing

** that the enrollment records of the Commissioner to the Five Civilized Tribes shall of said citizen or freedman," applies to transhereafter be conclusive evidence as to the age actions relating to the sale of lands of an allottee, when entered into subsequent to the taking effect of the act.

Cent. Dig. § 30; Dec. Dig. § 13.*]
[Ed. Note.-For other cases, see Indians,

3. INDIANS (§ 13*)-ENROLLMENT RECORDS-
PROBATIVE EFFECT-CANCELLATION OF IN-
STRUMENTS.

blood to cancel certain deeds and a mortgage In a suit by a Creek citizen of the half to her allotted lands, made by her during her alleged minority, and where it was also sought to cancel the note executed contemporaneously with the mortgage, and for which the latter was given to secure payment, and where the "The findings of fact of a referee, where not fact of minority was by the pleadings put in challenged within a proper time and manner, issue, and the only evidence introduced or tenbecome final, and exceptions to a judgment ren; sioner to the Five Civilized Tribes, it was errendered dered was the citizenship rolls of the Commisdered thereon are of law, and not fact, and ror to decree the cancellation of the note. cannot be raised on a motion for a new trial." [Ed. Note. For other cases, see Indians, It was the duty of the trial court, in the ab. Cent. Dig. § 30; Dec. Dig. § 13.*] sence of a motion for a new trial, to review

the proceedings had before the referee, filed in that court within the time provided by law, to render its judgment upon the findings and report of the referee, and it was beyond the power of that court to review the evidence adduced before the referee without a proper motion for a new trial. It follows, therefore, that the trial court should have rendered judgment for the sum of $607.19, the amount reported and found by the referee, and it was error to review the evidence and make another and different finding and render judgment thereon.

The judgment of the trial court is reversed, with directions to enter judgment upon the findings of the referee. All the Justices concur, except KANE, C. J., absent and not participating.

(44 Okl. 375)

CORNELIUS et al. v. YARBROUGH. (No. 3118.)

(Supreme Court of Oklahoma. Dec. 8, 1914.)

(Syllabus by the Court.)

4. INDIANS (§ 13*)-ALIENATION OF ALLOT

MENT ENROLLMENT RECORD EFFECT as
EVIDENCE-APPLICATION OF STATUTE.

Section 3 of the act of May 27, 1908 (35 ords thereafter conclusive evidence of the age Stat. 313, c. 199), making the enrollment recof a citizen or freedman of the Five Civilized Tribes, is confined by its terms to questions arising under the act, and not to independent or even related questions.

Cent. Dig. § 30; Dec. Dig. § 13.*]
[Ed. Note. For other cases, see Indians,

Commissioners' Opinion, Division No. 1. Error from District Court, Okmulgee County; Wade S. Stanfield, Judge.

Action by Jennie Yarbrough against William D. Cornelius and others. Judgment for plaintiff, and the defendant named and another bring error. Modified and affirmed.

N. A. Gibson, H. C. Thurman, and T. L. Gibson, all of Muskogee, for plaintiffs in error. Merwine & Newhouse and Geo. C. Beidleman, all of Okmulgee, for defendant in error.

SHARP, C. On July 28, 1910, in the dis1. INDIANS (§§ 13, 15*)-ALIENATION OF LAND -ENROLLMENT RECORD-EFFECT AS EVI-trict court of Okmulgee county, defendant in DENCE-VALIDITY OF STATUTE.

error, Jennie Yarbrough, filed suit against Plenary authority to fix the terms and the plaintiffs in error and others, alleging conditions under which restrictions from the lands allotted to the members of the Creek that she was a citizen of the Creek Tribe of Tribe of Indians should be removed is vested Indians of the half blood, and had receivin Congress, and that portion of Act May 27, ed as a portion of her allotment a tract of 1908, c. 199. 35 Stat. 312, containing, as one lands consisting of 160 acres (describing it). of such conditions and terms, the provision that the enrollment records of the Commissioner to that she was enrolled on the 18th day of the Five Civilized Tribes shall hereafter be January, 1900, by the Commission to the el

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