offered to sell it, and other admissions which are pertinent to the issue." Had this question referred directly or indirectly to a time reasonably prior to the time of this proceeding, we might hold that the court erred in rejecting the evidence. As it is, to so hold, we would have to suppose that it so referred, and hence predicate our ruling upon a presumption of fact not warranted by the record. On the other hand, indulging as we must the presumption in favor of the correctness of the ruling of the court, we presume, in the absence of evidence to the contrary, that the court was of opinion that the time referred to was too remote, and that proof of the value of the land by defendant's admission at the time it was made would not tend to prove its value at the time this proceeding was filed. Again, the record disclosed that the town was gradually spreading in the direction of this land which was being built upon right along. Under these circumstances, and in view of Patch v. Boston, 146 Mass. 52, 14 N. E. 770, where the court in a similar proceeding referring to similar evidence offered said: "Much must be left to the discretion of the presiding judge in determining whether the time was too remote and the condition of the property too dissimilar to make the evidence available"-we cannot say that the

charge was unexcepted to, we cannot concur. This was in substance the error complained of in C.; K. & N. Ry. Co. v. Davidson, 49 Kan. 589, 31 Pac. 131, a similar proceeding. There the court in the syllabus said: "Where a railroad company has taken and appropriated land for railroad purposes by virtue of condemnation proceedings, the owner of the land may recover for its depreciation in value, taking into consideration any purpose for which it might be the most profitably used. And in such a case, where the land was situated near a city, and although used as a farm was suitable for subdivision into lots, blocks, etc., and for an addition to the city, such facts may be taken into consideration in determining the market value of the land and the amount of its depreciation in value by reason of the taking and appropriation of a part thereof by the railroad company for railroad purposes." There, as here, the landowner to show for what the land might most profitably be used, introduced in evidence, over objection, a plat showing its subdivision into lots, blocks, etc., and the court held the same to be no error. See, also, 5 En. of Ev. p. 218, and cases cited. The same objection was urged to the introduction of a similar plat offered "for the purpose of showing the manner in which the railroad runs over and divides the tract of land in controversy," which was also ad-court erred in rejecting the evidence. See, mitted over plaintiff's objection. There was no error in this. 1 Greenleaf (16th Ed.) § 439S. [2] It is further urged that the court erred in sustaining an objection to a question asked defendant in effect that if, prior to the filing of these proceedings, in a conversation with one of the members of the Frederick right of way committee, he had not said that, if plaintiff's road was secured to come into said town on the south boundary line of this land and cross the Frisco tracks on the south end thereof, he would furnish it a free right of way over the same, but that, if it went anywhere else, it would cost $100 an acre, which he considered the worth of the land. This question was intended to prove that defendant had made a statement against his interest in effect that the land was only worth $100 an acre. As to the admissibility of such testimony, 10 Am. & Eng. of Law (2d Ed.) 1154, lays down the rule thus: "Upon the ground that the admission of a party to his prejudice in a matter material to the issue is always competent, the admissions of the owners of property. the condemnation of which is sought, that the property had only a certain value, have been considered admissible. And, if the owner has died, his statement may be used in determining the value of the property in the hands of the trustees." And Lewis on Eminent Domain, § 439, says: "In regard to the proof of admission of the parties, the same general rules apply as in other cases. It is competent to prove the declarations of the owner of the property in question as to its value and the price at which he has

also, Brown v. Calumet River Co., 125 Ill. 600, 18 N. E. 283. This rule is in keeping with that laid down in the Cen. Branch, etc., Ry. Co. v. Andrews, 37 Kan. 162, 4 Pac. 509, a similar action. There the tracks were laid down along the alley August 1, 1877. An admission against his interest was sought to be proved against plaintiff's intestate as to the value of the abutting property at that time. The court said: "There is no admission of the value of the lots in question at or near August 1, 1877. In fact, the admission of the value of the lots was either a long time before or a long time after that date. The offer to prove that the statement was made before the filing of this petition and about the time that the brick house was built was very indefinite, as the brick house was built before the track was laid; how long, does not appear in the evidence, and the petition was not filed until 1878. While ordinarily all the admissions of the party ought to be introduced in evidence, and while it might not have been error to have admitted the testimony of Chasliss in this case, it further appears in evidence that the market value of lots and real property in the city of Atchison was fluctuating, and to have ascertained the values at the various times named would not have been a definite basis from which to establish the value of the same August 1, 1877. If the market value of the land had been nearly the same all these years, theu the testimony sought to be introduced would have been more in point. But under the other testimony introduced, showing the

mony offered is not material error." In view of which we say that the error, if error there was, in rejecting the testimony offered, was not material.

Affirmed. All the Justices concur.

(28 Okl. 453)

ST. LOUIS & S. F. R. CO. v. LEWIS et al. (Supreme Court of Oklahoma. March 21, 1911.)

(Syllabus by the Court.)

1. RAILROADS (§ 243*)-STREET CROSSINGSPOWER OF CORPORATION COMMISSION.

changing values of property in the city, it | men, and prescribing their duties. The comseems to us that this rejection of the testi- plaint is made by one James L. Lewis, and as grounds for complaint he alleged: (1) That said crossings of said road on Third. Fourth, and Sixth streets of said city of Lawton are dangerous to travelers; (2) no gates or flagmen are maintained; (3) cars are kept standing on the side tracks and the crossing so that they obstruct the view of approaching trains; (4) crossings are blocked for unreasonable time. After hearing. the Corporation Commission entered the order appealed from, and the railroad company contends that it ought to be reversed for the following reasons: (1) It appears upon the face of said complaint that the streets upon which the plaintiff prays for flagmen to be stationed are wholly within the corporate limits of the city of Lawton and supervision over, and regulation as to such street crossings with reference to making the same safe for public use is wholly within the control of the mayor and city council of said city. (2) The plaintiff herein is not the proper party to maintain said action. (3) The commission is without jurisdiction to hear said complaint and to make said order, for the reason that it could not judicially determine upon whom the burden of maintaining such flagmen should fall. (4) Said order is not sustained by sufficient evidence, and is unreasonable and unjust to the rail-. road company.

Under the power conferred by section 18, art. 9, of the Constitution, to supervise, regulate, and control all transportation and transmission companies doing business in this state in all matters relating to their public duties, and of correcting abuses, the Corporation Commission has authority to require a railway company to guard the intersections of its tracks with the streets of a city of the first class when they have become dangerous to the life or safety of the persons or their property using such railway for transportation as common carriers, by reason of the press of travel along the streets forming such crossings.

[Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 754, 757; Dec. Dig. § 243.*] 2. CORPORATIONS (§ 394*)-PROSECUTION BE

FORE CORPORATION COMMISSION.

Complaints against a public service corporation may be prosecuted before the Corporation Commission in the name of the state upon complaint by a private citizen who may be affected by the alleged violation of public duty. [Ed. Note. For other cases, see Corporations, Dec. Dig. § 394.*]

3. RAILROADS (§ 243*)-STREET CROSSINGSMAINTAINING FLAGMAN.

The fact that the relief granted incidentally casts upon the railway company the burden of maintaining a flagman at a street crossing in no wise interferes with the exercise of the police power conferred upon the Corporation Commission to interfere when such crossings become dangerous by reason of frequency of travel. [Ed. Note. For other cases. see Railroads, Cent. Dig. 88 754, 757; Dec. Dig. § 243.*] 4. RAILROADS (§ 243*)-CROSSINGS IN STREET -MAINTENANCE OF FLAGMAN.

Evidence examined, and held to sustain the

findings of the commission as to the reasonableness of the order appealed from.

[Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 754, 757; Dec. Dig. § 243.*]

Appeal from State Corporation Commission.

Action by James L. Lewis and the State against the St. Louis & San Francisco Railroad Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

W. F. Evans, R. A. Kleinschmidt, and J. H. Grant, for plaintiff in error. Chas. West, Atty. Gen., and E. G. Spilman, Asst. Atty. Gen., for defendants in error.

KANE, J. This is an appeal from an order of the Corporation Commission requiring the St. Louis & San Francisco Railroad Company to establish and maintain at the Fourth and Sixth street crossings of its tracks, in the city of Lawton, flag stations and flag

[1] None of these contentions can be sustained. Section 18, art. 9, of the Constitution, confers upon the commission power and authority to supervise, regulate, and control all transportation and transmission companies doing business in this state in all matters relating to the performance of their public duties and their charges and tariffs and of correcting abuses. Counsel for the railway company contend that the primary object the framers of the Constitution had in mind when the above section was passed was the regulation of freight and passenger tariffs on the railways within the state, and the abuses the Corporation Commission is authorized to correct must be such as pertain to that branch of the service. The same contention was made in M., K. & T. Ry. Co. v. Richardson, Judge et al., 25 Okl. 640, 106 Pac. 1108. In that case, after analyzing section 18, supra, it was said: "It is true the section refers with more particularity to the regulation of rates, charges, and classifications than any other subject; but, taking the language of the parts of the section quoted together, and construing it with other language in other sections relating to the same subject, there is apparent an intention on the part of the framers of the Constitution to invest the commission with jurisdiction over all transportation and transmission companies in all matters relating to the performance of their public duties, and to correct abuses affecting the general public in their intercourse with such companies." If

as to upon whom the burden of maintaining such flagmen should fall, there is a way to have it judicially determined, but in the meantime the rights of the public cannot be jeopardized.

we apply the principle above enumerated to its patrons. If there is an incidental question the facts in the case at bar, we must reach the conclusion that under the power conferred by section 18, art. 9, of the Constitution, to supervise, regulate, and control all transportation and transmission companies doing business in this state in all matters relating to their public duties, and of correcting abuses, the Corporation Commission has authority to require a railway company to guard the intersections of its tracks with the streets of a city of the first class when they have become dangerous to the life or safety of the persons or their property using such railways for transportation as common carriers, by reason of the press of travel along the streets forming such crossings. Entertaining this view of the law, it follows that the contention of counsel that matters of this kind are wholly within the control of the mayor and city council of said city is untenable.

[2] The next contention we think is without merit. If the matter in controversy is one of public concern, it is properly prosecuted by the state upon the complaint of a private individual.

[4] The remaining contention, that the order is unreasonable and unjust, cannot be sustained. The commission found, and there was evidence to support their finding, that there is heavy traffic both by foot and vehicle over the crossings ordered protected; that the defendant company constantly uses its tracks close to such crossings for the purpose of storing cars, thereby obstructing a view of the tracks and making it difficult to see approaching trains; that accidents have occurred at these crossings, due to the inability of persons attempting to cross the tracks to see the approaching trains; and that there was danger of a recurrence of such accidents if the same conditions continue to prevail. Under such circumstances, it cannot be said that the order made was unreasonable or unjust. The order provides the ordinary and presumably the best way to protect the public from injury at railway crossings in cities and other places where the travel is heavy and the probability of injury is correspondingly great.

Finding no reversible error in the record, the order of the Corporation Commission is affirmed.

[3] In support of its next contention, plaintiff in error cites a line of authorities to the effect that "whether the erection and maintenance of gates or the employment of flagmen were at the time of condemnation necessary for the proper protection of the company and the traveling public was a question of fact for the jury." Com'rs of Parks and Blvds. of Detroit v. Chicago, D. & C. G. T. J. R. Co. et al., 91 Mich. 291, 51 N. W. 934. These cases have reference to condemnation proceedings, and are not authority on the question now under discussion. The princi- GLEASON et al. v. WOOD, County Treasurer

ple involved in the case at bar is the power of the Corporation Commission to exercise the police powers of the state to require the railway company to guard its crossings after they have become dangerous to the life or safety of the persons or their property using

TURNER, C. J., and DUNN, WILLIAMS. and HAYES, JJ., concur.

et al.

(28 Okl. 502)

(Supreme Court of Oklahoma. March 21, 1911.)

(Syllabus by the Court.)

TAXATION (§ 181*)
LANDS OF INDIANS.

27,

-

PROPERTY SUBJECT

1908, c. 199, 35 Stat. 312, 313, entitled

Section 4 of an act of Congress of May

"An act for the removal of restrictions from part of the lands of allottees of the Five Civilized Tribes, and for other purposes," is valid, all allottees of the Five Civilized Tribes of and under and by virtue thereof the lands of Indians, from which restrictions have been or shall be removed, are subject to taxation under the general laws of the state equally with the property of all other persons.

[Ed. Note. For other cases, see Taxation, Cent. Dig. § 45; Dec. Dig. § 181;* Indians, Cent. Dig. § 54.]

such railway for transportation, by reason of the frequency of travel along the streets or highways forming such crossings. That this distinction is recognized in the case above cited by counsel is made apparent by an excerpt from the opinion of the court by Justice Grant: "We see no reason to change the rule laid down in Commissioners of Parks, etc., v. Michigan Cent. R. Co., supra [90 Mich. 385, 51 N. W. 447], in regard to damages for the erection and maintenance of gates or for flagmen. If the jury shall be satisfied from the evidence that either are necessary for the protection of the public, the respondents are entitled to compensation therefor. This in no wise interferes with the police power conferred upon the Railroad Commissioner to interfere when such crossings shall have become dangerous by reason of the frequency of travel along the highways." The para- McCurtain & Hill and W. L. Sturdevant, mount question in this case is the duty of for plaintiffs in error. Charles West, Atty. the railway company to maintain flagmen | Gen., and Charles Moore, Asst. Atty. Gen., at dangerous crossings for the protection of for defendants in error.

Kane, J., dissenting.

Error

from Superior Court, Pittsburg County; P. D. Brewer, Judge.

Action by Michael H. Gleason and others against J. I. Wood, County Treasurer, and others. Judgment for defendants, and plaintiffs bring error. Affirmed.

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

DUNN, J. This case presents error from | mixed-blood Indians having less than half the superior court of Pittsburg county; the Indian blood including minors shall be free plaintiffs being citizens and members and the | from all restrictions. * original allottees of the Choctaw Tribe of Indians, and holding allotments of lands in several different counties of the state.