McCurtain v. Grady

Springer, C. 'J. (after stating the facts ) The statement of the case is taken from the brief of counsel for the appellants. The pleadings and briefs of counsel have narrowed the principal issues in this case to a question upon the propei- construction of a provision in the constitution of the Choctaw Nation, and to ascertain questions of fact. The report of the special master set forth 13 separate findings of facts, to most of which counsel for appellants filed exceptions. The exceptions were all overruled by the court below. The master also reported his conclusions upon the .egal questions involved, to which counsel also excepted. The court confirmed the report, and gave judgment for ap-pellees as set forth in the statement of the case. The facts which are disputed are as follows: 1. As to the citizenship of John M. Grady, one of the lefendants. While this is included in the findings of facts, .t is more a question of law than of fact. The facts seem to >e admitted. He claims to be a citizen of the Choctaw Nation by reason of his marriage to a white woman, who lad theretofore married a Choctaw citizen by blood, who íad died. She was an adopted citizen. But could she, by. narrying a white man, confer citizenship in the tribe upon dm? He was appointed guardian of his wife’s minor child >y her first husband by a Choctaw Court, and he had voted [120] at tbe elections in the Choctaw Nation, and had generally been regarded as a Choctaw citizen after his marriage. It is not necessary to pass upon Grady’s citizenship in order to fully determine all the material questions in this case. The congress of the United States has authorized a commission to pass upon all questions of citizenship in the Indian Territory, with right of appeal to the United States-Court, whose decisions shall be final. That cpmmission is nowin session, and it should not be embarrassed by any opinion of this court, unless absolutely necessary in order to determine the property rights of the parties to this suit. 2. The'master found, as a matter of fact, the customs and usages of the Choctaws in reference to acquiring a right to work a coal mine, to be as follows: “Upon the question of the customs and usages prevailing among the Choctaws, in whose country these mines are located, I find the preponderance of evidence in this case to be that the discoverer or prospector of coal who follows up his preliminary work by stripping or mining coal or improving the surface near the initial point of his discovery, holds one mile from that point as a center, and is not confined to the particular vein or lead upon which his discovery is based. His franchise is the sole right to work coal within a circle two miles in diameter from the surface, down through different veins or leads of coal toward the center of the earth. This appears to be the rule which has existed in the Choctaw country. I do not claim that it is the law elsewhere.” This finding of the master was excepted to by appellants, but was approved by the court. The finding is clearly sustained by a preponderence of the evidence. 8. The findings of the master as to the facts of theH respective discoveries of Isom Jefferson, of the Pusleys,H known as the “Pusley-Norman Claim,” of Anacher, and niB Anolatubbee, as set forth in the report, or findings of faclH [121] Nos. 6, 7, 8, 9, and 10, were based upon the testimony of a large number of witnesses. We have carefully examined the testimony in reference to these discoveries. It is true that there is some conflict, but the weight of evidénce is overwhelmingly in support of the master’s findings. In fact, there is no conflict in the testimony upon the question of the priority of these discoveries. Mr. Phillips, one of the appellants, stated in his testimony, in answer to the question as to whether Anacher set up any claim to .the property in question, as follows: “No, sir. He always admitted it tobe Krebs’ property. Krebs got it- from him. ” The appellants who claim through Krebs in nearly all particulars admit the priority of Anacher’s discovery, but claim that Anacher gave the property to Krebs, or that Krebs got it from Anacher. The only disputed facts in reference to Anacher’s discovery, is as to whether Anacher reserved the coal rights when he permitted Krebs to make improvements on the place, and open up a farm on it. The testimony of numerous witnesses on behalf of appellees is to the effect that Krebs never acquired from Anacher any right to the coal on the property which he discovered. The master so found, and the court below reached the same conclusion. 4. The master’s findings of facts as to Krebs’ claim lis as follows: “The Krebs discovery or claim covers the IPusley-Norman, Anolatubbee, and Anacher-Grady claims. Il have found the Norman-Pusley claim, which is based upon Ithe McAlester thick lead or vein of coal, and which includes Ithe Samples mine, as senior and superior to that of the |Krebs-Phillips discovery. The other claims of defendant, except the Grady discovery, were based upon the thinner [leads or veins. The initial point of the discovery made by |Grady upon the McAlester vein appears to be at a point ibout one-fourth mile east of the mine at Alderson. The sxtent of his radius westward on this outcrop would be labout three fourths mile west of the Alderson mine, I find [122] Grady to be first upon this vein. He maintained bis discovery by improvements, and is, therefore, prior, senior, and superior to the plaintiffs. However, should it be held that he was not a citizen or a member of the Choctaw tribe, he would take nothing herein. As Judge Krebs had improvements outside of the Pusley-Norman claim, this would leave an area of about 300 feet of the McAlester coal between the two senior and superior discoveries to the plaintiffs, which would be theirs, if the law of the case be that the discoveries run by veins or leads. ” The master’s conclusion, as above set forth as to John M. Grady’s discoveries, is doubtless based upon a misapprehension as to the relations which existed between Grady and J. J. McAlester and James F. Freeny. Grady testified as follows: “Question. When you were prospecting there for coal in 1879, was anybody else, and other citizens of the Nation, interested with you in the coal discoveries or bearings? Answer. Yes. Question. -Who? Answer. McAlester, in the first place, and then Freeny come up there in 1879, and we made arrangements to prospect together in partnership. ” McAlester and Freeny were Choctaw citizens. J. J, McAlester testified that he and Grady were discussing the coal question (this was evidently in 1879, the time to which Grady referred), and Grady said he thought he could find some coal that would be valuable to him (McAlester) and McAlester told him if he would find it he would make it interesting for him, and pay him well for it. This testimony seems to support the contention of the appellees’ counsel that, if Grady were not a citizen, his discovery was made while working for, or in partnership with, McAlester, a Choctaw by marriage, and Freeny, a Choctaw by blood; and, if he could not hold, his discovery would inure to McAlester and Freeny, and would not be treated as no discovery. The findings of the master- as to I the facts of the case, in all particulars, seem to be abund'I antly supported by the evidence. The master also report-1 [123] ed to the court below his findings of the law governing coal discoveries in the Choctaw. Nation. Article 7, § 18, of the constitution of the Choctaw Nation, contains all there is on the subject, and is as follows: “Any citizen of this Nation who may find any mine or mines or mineral waters, shall have exclusive right or privilege to work the saíne so long as he may choose within one mile in any direction from his works or improvements, provided, however, he does not interfere with the rights of the former settler.” The master finds that there is no statute on the subject, and that the Choctaw Courts have never passed upon the question involved in this case. “The question,” the master states, “as to whether the mile radius in any direction was confined to the particular vein discovered, or extended over a circular surface having the initial point as its center, and whose diameter was two miles, including the entire coal formation of the earth, has been squarely presented a number of times in the Indian Courts, but, unfortunately for us, the causes in which the question arose were settled by compromise, and no precedent obtained for our guidance. ” The constitutional provision is not free from doubt as to its meaning. A mine is not, strictly speaking, the subject of discovery. Webster’s Dictionary defines a mine as follows:“A pit or excavation in the earth, from which metallic ores or other mineral substances are taken by digging. ’ ’ The word “mineral” was evidently intended, as it expresses the. only meaning which can be given to the provision. Mineral is the subject of discovery. The mine is the pit or excavation which is made in order to discover the mineral, or after the discovery of an outcrop has been made. The words used in the section, “to work the same,” evidently mean that the person who finds the mineral may extract it from the earth, may mine it.. The person who finds coal may dig pits, make-excavations, and carry on the business of mining coal, within the limits of one mile in any direction from his works or. [124] improvements. The discoverer actually finds, at the time of discovery, only the coal in sight. If what he saw was all he had a right to take, his discovery would be worihless. The provision evidently intended to give the discoverer the right to extract from the earth the kind of mineral which he discovered in every direction from the point of discovery, or from the place of erecting his improvements, for the distance of one mile. The constitutional provision should be construed as if it read as follows: “Any citizen of this Nation who may find any mineral or minerals or mineral waters shall have the exclusive right or privilege to extract such mineral from the earth, or to use the mineral waters, so long as he may choose, within one mile in any direction from his works or improvements: provided, however, he does not interfere with the rights of the former settler. ” When the mineral is discovered, it cannot be known at the time what is the extent of the deposit, whether it be a vein or a “pocket, ” or what will be its quantity or quality. Future developments alone will determine these questions. For the purpose of inducing the discoverer to make excavations, to sink pits, to prospect for unseen deposits, the law gave him the exclusive right to carry on the business of mining for that kind of mineral within a radius of one mile from the place where his works or improvements were first erected. This construction is in accordance with the customs and usages of those who have been engaged in mining in the Choctaw Nation since coal was first discovered and mined in that Nation. It is true that usage and custom cannot be made to override a statute whose meaning is clear and free from doubt. But, where the meaning is doubtful, the statute should receive that construction which is supported by custom and usage, and by contemporary history and interpretation. A contemporary exposition, practiced and acquiesced in for a period of years, fixes the construction which should be given to a statute, and the courts will not [125] shape or control it. Stuart vs Laird, 1 Cranch, 299. As was said by Chief Justice Marshall in Cohens vs Virginia, 6 Wheat. 264: “Great weight has always been attached, and very rightly, to contemporaneous exposition.” It is true, however, that the Choctaw constitution has not received judicial exposition heretofore, but long and continuous usage furnishes a contemporaneous construction, which must prevail over the mere technical import of the words, or where the meaning is doubtful. Rogers vs Goodwin, 2 Mass. 475; Bailey vs Rolfe, 16 N. H. 252. Mr. Justice Field, of the Supreme Court of the United States, in the Eureka Case, 4 Sawy, 311, Fed. Cas. No. 4,548, referring to the mining laws, the meaning of which he construed in that case, said: “These acts were not drawn by geologists or for geologists. They were not framed in the interest of science, and consequently with scientific accuracy in the use of terms. They were framed for the protection of miners in the claim which they had located and developed, and should receive such construction as will carry out this purpose. ” This language applies with peculiar force to the provision of the Choctaw constitution in question in this case. The Choctaw constitution was not drawn by geologists or for geologists, or in the interest of science, or with scientific accuracy. It was framed by plain people, who have agreed among themselves what meaning should, be attached to it, and the courts should give effect to that interpretation which its framers intended it should have. Any other construction would be manifestly unjust. The meaning which we have given this provision is not only in accordance with custom and usage, but it is in accordance with custom and common sense. In the very nature of things, it is the construction which must prevail. The construction contended for by counsel for appellants would result in serious conflicts and inextricable confusion. The lines between different claims could never be "accurately known. After a thin vein [126] had been worked for a time, it might be merged into, and be found to be a part of, a thicker vein, within the mile limit, which might be claimed by another and subsequent discoverer. The width of the vein at the point of discovery has nothing to do with the extent to which the discoverer may carry on the work of mining for coal. He has the exclusive right to mine coal within one mile in all directions from the point from which his works or improvements are erected. But the discoverer cannot changó his limits by changing the place of his works. The first works or improvements he may erect will determine the limits of, his claim. Subsequent works must be within his original limits. But within his original limits he has the exclusive right to mine for coal to any depths, to which he may desire to make excavations, or to carry on the business of mining. Minerals— Rights of Discoverer. usage and Custom. [126] Counsel for appellants insist that the judgment of the court below should be-reversed on the ground that the court did not .pass upon the exceptions to the master’s report separately, but overruled them as a whole, giving no judgment at all upon each one, The record shows that on July 10, 1895, the following order, among other orders, was made and entered of record, both parties being present by their solicitors: “That the exceptions to the report of the special master herein heretofore filed herein by the plaintiffs be, and the same are hereby, overruled, and that the said report of the special master is in all things approved and confirmed; to which ruling, decision, and decree of the court overruling said exceptions of the said plaintiffs, and approving and confirming the said report of the said special master, the plaintiffs then-and there duly excepted, and asked that his [their] exceptions be noted of record, which is now done accordingly. ” This is all the record discloses on the subject. We are not disposed to place our conclusions upon the words “duly excepted,” but we insist that the plaintiffs should then haye asked for a separate decision and judgment upon each [127] exception, if they deemed it necessary or essential to the vindication of any of their rights in the premises. If it had been demanded, the court would have complied with the request, and would then have entered a separate decision upon each exception. As none of the substantial rights of the plaintiffs were affected or denied by the course which was pursued, this court will not reverse the judgment on that ground. Master’s Keporfc— Exceptions. Incompetent Testimony. Presumption. Admissions— When Admissible. Counsel for appellants contend that the master erred in allowing certain witnesses to testify to conversations in their lifetime with Anaeher, Krebs, Pusley, and Anolatubbee, then deceased, upon the ground that such testimony was “the rankest hearsay.” There may have been testimony admitted by the master, and incorporated in his report to the court, which was irrelevant and inadmissible. But it does not follow that the judgment of the court was based upon such testimony. The rule would be different if such testimony had been submitted to a jury, and the verdict of the jury had been based upon it. But the master merely reported the testimony to which there was an exception taken to the court. The court, in forming its judgment, is presumed to have disregarded all incompetent testimony. However, no error seems to have been made in the admission of die testimony as to declarations of Anaeher, Krebs, Pusley, ind Anolatubbee, made in their lifetime, while they were in possession of the premises about which they were talking. The admissions of Krebs against his interest are by all rules )f evidence clearly admissible. The admissions by a grantor >f land are relevant against his grantee, of a landlord gainst his tenant, of devisor against devisee, of any owner >f land against those' who subsequently derive title from or hrough him. Chadwick vs Fonner, 69 N. Y. 404; Simpson vs Dix, 131 Mass. 179; Pickering vs Reynolds, 119 Mass. 11. Not only those declarations by the owner of land or iy one claiming title, which are in disparagement of his [128] title, are admissible against the declarant or persons in privity with him (see Bowen vs Chase. 98 U. S. 254,) but also those statements made by him while in possession, which show the character of his possession, and by what title he claims Pitts vs Wilder, 1 N. Y. 525; Moore vs Hamilton, 44 N. Y. 666; or, as some cases hold, to show the extent of occupation or boundary Abeel vs VanGelder, 36 N. Y. 513; Sheaffer vs Eakman, 56 Pa. St. 144. See, also Chapman vs Edmands, 3 Allen, 512. Such evidence comes properly under the doctrine of res gestae. 1 Greenl. Ev. § 109; Steph. Ev. (Am. Ed.) pp 41, 42, note. The testimony referred to was properly admitted by the master, and the court may, without error, have based its decision upon it. Construction of Statue. Usage. Counsel for appellants also insist that the master erred in permitting Dr. Hailey and others to testify as to the customs and usages in the Choctaw Nation in reference to the extent of a coal claim. It is admissible to prove contemporaneous construction in this case, and no error was committed in permitting such testimony. Counsel for appellants insist that the court below erred in granting an injunction in favor of the coal company in the face of the following provision of the Choctaw laws “Provided, however, that the Circuit Courts of said Natior shall not have power to issue writs of injunction or othei process to stop the operation of any public works. ” See Stanley’s Code, p. 103, near bottom of page. And also it view of article 43 of the treaty of 1866, wherein the Unitec States especially agrees “not to prevent the legislative authority of the respective Nations from authorizing sücl works of internal improvement as they may deem essentia to the welfare and prospsrity of the community.” Tha “the Choctaw Coal & Railway Company entered into a con tract with the national agent of the Choctaw Nation afte: the,passage of the law prohibiting injunctions, above se [129] forth.. That all the rights and privileges the coal company-may have in the Choctaw Nation come by virtue of this contract with the national agent, and, if the coal company takes the rights and privileges of the Choctaw law, it must also abide by its prohibitions and estoppels or bars, or must take the burden with the benefits. ” This contention is urged by jounsel with so much confidence and plausibility that we feel called upon to make special reference to it. It is within die undoubted power of the Choctaw council to create courts ;o enforce the laws of the Choctaw Nation, and to define and imit the jurisdiction of súch courts. The Circuit Courts of he Nation are by the provisions indicated prohibited from ssuing “writs of injunction, or other process to stop the iperation of any public works. ” A fair and reasonable con-itruction of this statute by a Choctaw Circuit Court would Lot prohibit it from enjoining A. from working B.’s mine if 1. himself desired to work it. It would only prohibit the ourt from enjoining the working of the mine by any person r persons. The court was only prohibited from issuing ny writ “to stop the operation of any public works,’ ’ just as ; would abate a nuisance. We cannot presume for a íoment that the Choctaw legislature intended to permit one £ its citizens to appropriate the property of another, and eprive the courts of any power to prevent it. But, what-rer construction of the Choctaw Courts may put upon the ;atute, it will not be seriously contended that the United tates Court, created by the government of the United tates, is limited in its jurisdiction by any provision of the Hhoctaw council. The treaties between the United States Hid the Choctaw Nation concede the right of the former to Htablish courts in the Indian Territory. The powers and ■risdiction of this court are prescribed by the laws enacted Hr congress. The jurisdiction of the Choctaw Court is ex-H’essly limited by treaty and by acts of congress to eon-Hoversies in which citizens of the Indian Nation are “the [130] sole parties to the controversy.” The contention of counsel is one relating to jurisdiction solely. The jurisdiction of the United States Court has been conferred by congress, and can only be restrained, limited, or controlled by acts of congress. The right of congress to establish courts in the Indian Territory is not disputed. It is conceded by the respective Indian Nations in the treaties which they have made and ratified. And the right to establish courts carrier with it the right to prescribe their jurisdiction, unless there is an express reservation. The laws of congress are in force in the Indian Territory as well as elsewhere in the Unitee States. The national agent of the Choctaw Nation, and al contracts which he made with the coal companies in thii case, were subject to the laws of congress, and the Unitee States Court in the Indian Territory has the power to en force those laws by the issuance of writs of injunction, ane by all other processes which may be necessary for carrying its powers into effect. Ohoctaw Laws. Injunction. [130] Upon a careful examination of the record in this case and also of the briefs and arguments submitted by th learned counsel, on both sides, we are of the opinion tha the judgment of the court should be affirmed. • We find in the judgment of the court the following among other, orders, namely : “And it is further ordere that the plaintiffs shall, every sixty days from this dat( make a report to this court, under oath, of the amount of a9 coal taken out of said mine, and sold, held, or shipped bfl the plaintiffs during the pendency of this appeal. ” And ol page 310 of the record we find the following agreement* “ By agreement between the parties, the question as to tin amount of coal and the value of it taken from the mine n question is deferred for subsequent investigation, if tin court hereinafter deems it necessary to go into that queH tion.” For the purpose of enabling the court below n [131] enforce the foregoing order, and to carry into effect the foregoing agreement between the parties, the case is remanded. As to all matters finally determined when the appeal was prayed, the judgment of the court below is affirmed. Kilgore and Lewis!' JJ., concur.