City of Oklahoma v. McMaster

Opinion of the court by Irwin, J.: The assignments of error in this case may be condensed into three, viz: First, overruling the demurrer of defendant to plaintiff’s petition. Second, error of the •court in setting aside the order of the court made granting a new trial to the defendant, as a matter of course, without showing cause, entered in the journal, and the reinstating of the judgment in favor of plaintiff; and third, error of the court in rendering judgment in' favor of the plaintiff instead of the defendant. While the assignments of error made by the plaintiff in error are more numerous than these, we think these three assignments include all of those assigned by the plaintiff in error. Plaintiff in error makes eight assignments of error, but his second and third, it seems to us are included in the first assignment of error as herein set forth. The fourt assignment of error charges that the court erred in admitting as evidence against said plaintiff in error, and over its objection, a copy of a certain pretended judgment of the district *579 court of Canadian county, rendered in an action in said last named court, in which the defendant in error was plaintiff, and the townsite trustees were defendants; and. fifth, the court erred in admitting over the objection of the plaintiff in error, a copy of a certain order or judgment of the said district court of Canadian county, made at Kingfisher county, on the 13th day of October, 1893, in an action between the said parties. The sixth and seventh assignments of error are simply general assignments of error in admitting improper evidence on the part of plaintiff, and the eighth, that said district court erred in rendering judgment in favor of defendant in error, instead of plaintiff in error. We think all of the fourth, fifth, sixth and seventh assignments of error can be considered in the eighth, to-wit: that the court erred in rendering judgment in favor of the plaintiff. The first and second assignments of error as herein set. forth, it will not be necessary for this court to pass upon, because by the long established and well settled rule of this court founded upon the adjudication of many of the supreme courts of other states and territories on the same. question, these assignments of error have been abandoned by the plaintiff in error. It is a well settled rule of this court that where error is assigned, and the attorney for the plaintiff in error fails to insist upon and argue the same in his brief, this court will treat such assignment of error as having been abandoned. In the case of Gardenhire v. Gardenhire, 2 Okla. 484. this court says: “Where errors are assigned in the petition in error but are not mentioned in the argument or brief of counsel and are not relied upon in the argument or brief for the rever *580 sal of the judgment complained of, they will be deemed waived and abandoned and will not be regarded by the supreme court.” In Peters v. The United States, 2 Okla. 136, this court in an opinion rendered by the present chief justice says: “A number of other rulings of the trial court are complained of and errors assigned calling in question their correctness, but as they are not discussed in appellant’s brief, they must be taken as waived and abandoned, and we shall not give them - consideration.” In the ease of Hurst v. Sawyer, 3 Okla. 296, this court says: . “An assignment of error, which is .not relied upon in the brief of counsel for a reversal of the, case, will not be considered by this court, nor will this court review a question partially discussed, when counsel, in closing .his brief, chooses to abandon it, and rely. entirely upon another proposition, and when counsel on the other side have relied upon such withdrawal.” In Provin v. Lovi, 6 Okla. 94, the court says: “Where an error is assigned and not presented and argued in the brief of counsel for'appellant, and no authorities-are cited in' support of the contention and counsel for plaintiff treat the question as abandoned this court will not review the same.” In Penny v. Fellner, 6 Okla. 386, the court says: “This court will not examine the record filed herein, in search of prejudicial errors which are not clearly pointed out and insisted upon in the brief of the complaining party, but all such errors, (if .any), will be considered as waived.” *581 In Huntley v. The Territory, 7 Okla. 60, this court says: "Numerous other errors are assigned in the petition in error. We have considered all that have been presented in the briefs, or argued by counsel for plaintiff in error. Under the settled rule of this court such assignments of error as are not presented and relied upon' in the argument or brief of counsel are deemed waived and abandoned,, and will not be considered by this court.” This doctrine has been repeatedly followed and often sanctioned by the Kansas supreme court. In the case of Topeka Primary Association v. Martin, 39 Kan. 750 the court there hold: “That errors not specifically pointed out and relied on in the brief of counsel, will not be considered.” In the case of Wilson v. Fuller, 9 Kan. 176, the court say: “Where errors are assigned in the petition in error, but no reference is afterward made to them, either by oral argument or in the brief of counsel for plaintiff in error, the supreme court will take no notice of them.” In School District v. Foster, 11 Kan. 447, it is said: “Other errors were assigned in the petition in error, but as they have not since been referred to, in the brief of counsel or otherwise, we suppose they have been abandoned, and we shall therefore take no notice of them.” In Davis v. Filmore, 15 Kan. 333, the court holds: “Where error is assigned but not briefed, it must be presumed to have been waived and abandoned.” *582 In Campbell v. Phillips, 28 Kan. 754, the court says: “Of course our inquiry will be limited to the single matter counsel discuss in their brief.-” In Bailey v. Dodge, 28 Kan. 72, it is held: “Where errors are assigned but not insisted upon in the brief of counsel, the supreme court will not consider them.” In the State of Kansas v. Stewart, 24 Kan. 250, the court, speaking by Justice Brewer, says: “Ordinarily this court will consider only such questions as are specifically pointed out and discussed by counsel, and will not search through the record for the sake of finding error.” This same doctrine is held in Howard v. Cobb, 6 Ind. 5, and in Robinson v. Tipton, 31 Ala. 595. Hence we take it that this rule is too well established and has too long been followed by this and other courts to now be disturbed, and as we have carefully and repeatedly searched the brief of plaintiff in error, and do not find as to the first or second assignment of error, the slightest reference, not a word nor a line thereon is contained in such argument, nor are any authorities cited; hence, following the rule, we are constrained to treat these two assignments of err'or as abandoned, and only notice the other assignments of error, which, in our judgment can very properly be considered in the one assignment of error, which charges error of the district court in the judgment rendered. The evidence in this ease shows that the lots in controversy were a part of a tract of land conveyed by the United States to certain .trustees for townsite purposes, as shown *583 by the patent in evidence. By this conveyance the land was to be held in trust by said trustees, for the occupying claimants, and such trustees were made agents for such claimants, and such lands were also held in trust sub moda for the government until the rightful claimants could be established, and the manner of disposing of the surplus land ascertained. This land by the act of congress was open for legal settlement on the 22nd day -of April, 1889. The defendant in error, in his petition herein, claims that he had on the day that such land was opened for settlement, and not before, legally entered such lots, and went into possession thereof as an occupying claimant, and that under the rules and regulations of the land office he was entitled to a deed at the hands of the townsite trustees. Now the first question to be settled in this controversy is: Was the defendant in error an occupying claimant, such as is recognized by the land laws of the United States and entitled to a deed at the hands of the townsite trustees? If this position is correct, then under the laws regulating the granting of this tract to the townsite trustees, they held that portion of the same on which he was an occupying claimant, in trust for him. The government by the conveyance by patent vested the title of this land in the trustees, for the express purpose of having the title conveyed to those who were entitled to claim as occupying claimants. To prove this possession, the defendant in error offered in the court below certain findings of the district court of Canadian county, Oklahoma Territory, which he claims amount to a judgment in his favor, in a certain ease therein pending wherein he was the plaintiff and the townsite trustees were the defendants, said cause having been taken to Canadian county on a change of venue, *584 from the district court of Oklahoma county, where said 'land is situated, and where said trustees resided. The objection to the introduction of this judgment, of Canadian county, was that the plaintiff in error here, the city of Oklahoma City, was not a party to that record, and consequently not bound thereby; but it seems to us that as the townsite trustees by the patent had conveyed to them the land, and by the law under which they acted was made the agent not only of all the occupying claimants, but also of the government, and held the land in trust for such claimants, that any and all persons claiming title to any portion of such land, must claim the same through the townsite trustees; that the plaintiff in error here, if any title whatever it had, must have derived the same from a common source of title, to-wit: the town-site trustees, and as such grantee of the townsite trustees would be bound by any judgment legally rendered against such trustees. In the case of Caldwell v. Colorado Springs, 100 U. S. 55, it was held: “That as all had a right to appear, it bound’ all parties. The trustees represent all rights, and their action bound all claimants.” In Kennison v. Stewart, 93 U. S. 84, it was held: “That all beneficiaries, although not parties, are bound by judgments against trustees, unless such judgment is impeached for fraud or collusion.” The second objection urged by plaintiff in error herein to the introduction of this judgment of the district court of Canadian county in the court below, was that the findings do *585 not amount to a judgment. What is a judgment? We think it is a final conclusion by a court of competent .jurisdiction of a question of law, or fact, at issue between the parties thereto, and properly submitted for adjudication. Now in this case the proper parties were before the court, to-wit: The .defendant in error, who claimed the right to a deed, and the townsite trustees, in whom the government had vested the 'title, for the purpose of ascertaining who the legal occupying claimants were, and who was entitled to deeds for the various tracts of land embodied in the patent. Now as the court found the facts and decided the question submitted to it, and as no question of jurisdiction was there raised, and as mo question of jurisdiction is raised in the district court in this case, or in this court, on appeal, and as no appeal was 'taken from the findings and judgment of the district court of Canadian county, we think the presumption obtains that the ■court had jurisdiction of the subject-matter and of the parties^ and that the necessary preliminary steps to give the court ju--risdietion had been complied with; this being true, we are at -a loss to see why the finding of that court as to the facts therein submitted were not binding, and conclusive upon not •only the parties, but all persons claiming title under or 'through them. Now what did the district court of Canadian •county find as to the facts? By a reference to the copy of 'the records of that court as shown in exhibit “A” of the case-made herein, it will be seen that that court there found that the defendants in that case, Edgar N. Sweet, Levi E. Coe, and David H. Hammons, were trustees of the townsite of Okla’homa City, in said county, for the benefit of the actual occupants thereof, under the act of congress approved May 14, 1890. That said tract of land described in said patent to *586 said trustees was on the 22nd day of April, 1889, opened to settlement under the act of congress approved March 2, 1889. That such tract of land was settled upon and occupied as a townsite shortly after noon of said day, and has continued to be and was at the time of said finding still held and occupied. The court further finds that on said 22nd day of April, 1889, the people then occupying said townsite had platted said tract of land into lots, 'blocks, streets and alleys, and the court further finds that the plaintiff there (that is the defendant in error herein) on said day, to-wit: The 22nd day of April, 1889, legally entered upon and occupied the particular piece or parcel of ground in controversy in this suit, and has continued to claim the same, that said piece or parcel of ground at that time was lots one and two in block twenty-four, according to the plat. The courts finds that subsequent to such occupancy, and prior to the conveyance to said trustees, a different plat and arrangement of the streets alleys, lots and blocks, was adopted and enforced by the parties occupying said townsite; that by said change of the plat, the land claimed by the plaintiff was thrown into the street, in Q-rand avenue, and the court finds that the plaintiff did not consent, but objected to said second plat, and has never consented thereto, or acquiesced therein. That thereafter the plaintiff in that case (defendant in error here) was forcibly removed from said parcel of ground, and has since that time been forcibly kept from the occupancy of said ground. That on the 21st day of April, 1891, the plaintiff applied to said defendants as said trustees, for a deed to said lots, that said trustees found the facts substantially as above stated, but declined to issue the deed therefor, and the court further finds that said city of Oklahoma City has appropriated said lots *587 to its own purposes as a street, and had appropriated the same-prior to the conveyance of said tract by the United States-to said trustees; the court further finds that said plaintiff was-not occupying said tract of ground at the time the United States conveyed the same to the defendants as trustees, but said portion of said tract was at the time used and treated as a. street of said city. Now this finding of the court shows that at the time that this land was opened for settlement under the act of congress-the defendant in error herein had legally entered upon said tract of land, and was occupying it in accordance with the rules and regulations of the land department. That being true-we take it that his interest and rights in said land attached at that time. That when he had complied with the rules and regulations of the land department, he was entitled to a deed. That he had a vested interest in these lots, and that any other occupying claimant, or any number of occupying claimants, who made up the townsite, at that time or subsequent, had no right to so change the plat as to take from him his interest in said lots, and put them into a public street or highway without his consent. Such a proceeding would be-in violation of the constitution of the 'United States, and would be taking private property for public use, without compensation. The townsite trustees would have no right to-deprive him of any property that he might have by virtue-of his prior settlement, in these lots, and devote-it to street ■purposes, without his consent and without compensation. His-rights must be determined, it seems to us, by the conditions-as they existed at the time of his settlement,- upon these lots, which, according to the findings of the- district court of Cana *588 dian county, was on April 22, 1889. If at that time be had ■'complied with the law, and the rules of the land department, .and was entitled to a deed, then no subsequent action of the •occupying claimants, of the townsite, or the townsite trustees, or the- city of Oklahoma City, could take away his rights without his consent, except upon some legal proceeding and for adequate compensation. In the case of Sturr v. Beck, reported in the 133 U. S. :at page 545, the supreme court of the United States say: “* * * Any settler who has settled, or who shall hereafter settle on any of the public lands of the United States, whether surveyed or unsurveyed, with the intention of claiming the same under the homestead laws, shall be allowed the same time to file his homestead application and perfect his original entry in the United 'States land office as is now allowed to settlers under the pre-emption laws to put their claims on record, and his right shall relate back to the date of settlement, the same as if he settled under the pre-emption laws, the ruling of the land department has been that if the homestead settler shall fully comply with the law as to continuous residence and cultivation, the settlement defeats all claims intervening between its date and the date of filing his homestead entry, and in making final proof his five years of residence and cultivation will commence from the date of ^actual settlement.” In Witherspoon v. Duncan, 4 Wall. 210-218, it is said: “* * * * In no just sense can lands be said to be public lands after they have been entered at the land office, and a certificate of entry obtained. If public lands before the •entry, after it they are private property.” In the decision in the case of Sturr v. Beck, supra, the court says: *589 “* * * * And as to mere settlement -with the in* tention of obtaining title, under the pre-emption laws, while it. has been held that no vested right in the land as against the United States is acquired, until all of the prerequisites for the acquisition of title have been complied with, yet rights-in parties as against each other were fully recognized as existing, based upon priority in the initiatory steps, when followed up to a patent. 'The patent, which is afterwards issued,, relates back to the date of. the initiatory act, and cuts off' all intervening claimants/ ” In Burlington K. & S. W. R. Co. v. Johnson, 16 Pac. 125, the supreme court of Kansas say: “A settler on the public lands of the United States who* makes a valid homestead entry, and continues to reside on and improve the land entered, in compliance with the land laws,, has the exclusive right to its possession and use, and to the improvements made thereon, and he also acquires equities in. the land itself, which increase from the time the entry, is-made until the complete title is earned. “Such a settler may sell and transfer a portion of his-homestead for a right of way for a railroad, or his interest therein may be condemned and appropriated for such purpose upon adversary proceedings, and by paying full compensation to the settler therefor. “A homesteader who has entered, and is proceeding lawfully to perfect his title to the land entered, suffers an injury from the building of a railroad over his homestead which differs only in degree from that sustained from the same cause-by one who has the complete title.” Section 2339 of the Revised Statutes of the United States-provides: “Whenever by priority of possession, rights to the use of' water for mining, agricultural, manufacturing or other pur *590 poses, have vested and accrued, and the same are recognized •and acknowledged by the local customs, laws and the decisions of the courts, the possessors and owners of such vested rights .shall be maintained and protected in the same.” But it may be contended that the defendant in error was not in the possession of said lots, and has abandoned the same, but a reference to the finding of fact by the district court of Canadian county will show: “That thereafter the plaintiff was forcibly removed from said parcel of ground, and has since that time been forcibly kept from the occupancy of said grounds. “That he did not consent but objected to the platting of .said land as a street.” And under the holding of this court in the case of Cook et al. v. McCord et al. 9 Okla. 200, and the holding of the United States land department in Betts v. Townley, 20 L. D. 425, this is not abandonment, but preserves his entry intact. Hence it seems to us that if the findings of the district court of Canadian county, were correct, and that the defendant in error, McMaster, was a legal occupying claimant upon the land at the time the patent was granted to the townsite trustees, then no action of such townsite trustees or the city ••of Oklahoma City; or the other occupying claimants, could divest him of his right in the property in question, without his consent and without compensation.' We think there was no error- on the part of the district court of Oklahoma county, in admitting the record of this .judgment as evidence. The defendant below, plaintiff in error here, claims that *591 the court erred in admitting as evidence a certified copy of a certain order of the district court of Canadian county, made m Kingfisher county. But a reference to that order will show that it was an order designed to execute a previous order of that court. The order was in the nature of a mandamus, which, if the finding of the Canadian county court was that the defendant in error, McMasters, was entitled to a deed, at the hands of the townsite trustees, this would be the only adequate means by which the court could enforce such judgment. But it seems to us that the order made in Kingfisher county has but little bearing upon the merits of this case, for the reason that the rights of the parties had already been determined -by the finding of the district court of Canadian county, in the order heretofore admitted by the court. If the finding of that court was correct, and, its correctness it seems to us cannot now be questioned after the time for appeal has expired, then McMasters was entitled to a deed at the hands of the townsite trustees, and such finding of the court was conclusive. Hence we think the decision of the lower court was correct, and the judgment is hereby affirmed; not intending that this opinion shall be at variance with the doctrine laid down in the case of City of Guthrie v. Beamer, 3 Okla. 652, the facts in the two eases being different. Burford, C. J., and Burwell, J., not sitting; Pancoast, J., dissenting; all the other Justices concurring.