Choctaw Nation and Chickasaw Nation v. St. Louis-San Francisco Railway Company, and Lee F. White, O. R. Smiley and Mamie Smiley

BREITENSTEIN, Circuit Judge. This is a companion case to Choctaw Nation v. Atchison, Topeka and Santa Fe Railway Company, 10 Cir., 396 F.2d 578. Reference is made to the decision in that ease for the pertinent treaties and statutes. The land in question is a 32-acre reservoir tract reserved from allotment because of an easement obtained for reservoir purposes by a predecessor of the appellee railway company in 1903. The complaint alleges an abandonment in 1910 and a conveyance to the Choctaw Nation and the Chickasaw Nation by the railroad in 1946. The answer and cross-claim of the appellees Lee F. White, O. R. Smiley, and Mamie Smiley, abutting landowners, allege abandoment in 1946. The railroad filed a disclaimer. The district court sustained a motion of the other appellees to dismiss. In Choctaw Nation v. The Atchison, Topeka and Santa Fe Railway Company, *583 supra, we held that upon abandonment of the reservoir easement, title vested to the abutting landowners. The same principle applies here whether the abandonment occurred in 1910 or 1946. The conveyance to the two Nations was a nullity because the railroad had nothing to convey. Affirmed.