Davenport v. Buffington

Townsend, J. (after stating the facts ) The appellant has assigned two specifications of error, as follows: (1) 1 ‘The court erred in overruling the demurrer of the defendant to the complaint of the plaintiff.” (2) “The court [430] erred in overruling the defendant’s demurrer, and granting a perpetual injunction against said defendant. ’ ’ It is hardly necessary at this túne, since the abolition of the Indian courts, to discuss the first and third grounds of demurrer, that go to the joining of W. H. Tarrant as a plaintiff, in order to give the United States Court jurisdiction, Tarrant being a United States citizen. There would be no serious contention that, so far as jurisdiction is concerned, the United States Court would now have jurisdiction of all the parties. But does not Tarrant, as a resident and taxpayer (which he alleges himself to be in the complaint, and the demurrer admits it,) have the right to bring this bill? ‘ ‘If the property or funds of a municipal corporation be illegally interfered with, action may be brought in the name of the corporation, or in the name of any inhabitant of the municipality, and particularly in the name of any taxable inhabitant. Such a right is necessary in the case of municipal and public corporations. If it were denied, they would be liable to be plundered, and the taxpayers and property owners, on whom th.e loss would eventually fall, left without effectual remedy.” 2 Dill. Mun. Corp. § § 914-919, inclusive. See, also, Crampton vs Zabriskie, 101 U. S. 601; Town of Jacksonport vs Watson, 33 Ark. 704; 1 High, Inj. § 855; 2 High, Inj. § 1553. In Cummings vs City of St. Louis (Mo. Sup.) 2 S. W. 130, it is held: “Where land in a city has been dedicated by the owner to the public, and the city, bj an ordinance, had directed the same to be sold, an individual if injured in his individual rights, either as to his person oi property, may prosecute a suit, and enjoin the city frorr carrying the ordinance into execution.” In Brown vs Manning, 6 Ohio 298, which was a suit to enjoin the pro prietors who dedicated the land to public use from appro priating to private use a square included in the dedication the court say: ‘ ‘It sufficiently appears that the plaintiff i: one of the inhabitants of the town, living and holding pro [431] perty contiguous to the square, the value of which is affected, by the dedication. He is therefore not a volunteer, assuming to protect the rights of others, but entitled to this remedy for the protection both of his individual and his common interests.” In the case at bar, Gray and Thompson, plaintiffs, both own property fronting on the park. See, also, Wheeler vs Bedford (Conn.) 7 Atl. 22, and Newmeyer vs Railroad Co., 52 Mo. 81. Right oí taxpayer to bring suit. Dedication. Appellant insists, however, that there was no dedication in this case by the Cherokee Nation, because the Nation could not part with the fee-simple title. While that is true, without first having the consent of the United States government, there is no question but what they could dedicate the use and occupancy of this mile square for town-site purposes, and will be bound by fheir dedication. The law governing the dedication of property to public use unquestionably should apply, by analogy, to this dedication, to the extent to which they could and did act as to any other proprietor. But 3his very action of the Cherokee Nation has already been jonsidered by the United States Circuit Court of appeals in Bell vs Railroad Co., 63 Fed. 417, 11 C. C. A. 271. In that jase, Judge Caldwell, in delivering the opinion of the court, says: “The commissioners located and surveyed the mile square at Vinita Station, and laid it off into lots, blocks, streets, alleys, parks, and railroad rights of way. They nade a plat of the town as laid out, which, together with heir report, they filed with the principal chief of the Na-ion, as required by law; and, from that time this plat has >.een accepted as an official plat of the town by the Nation <nd the public. The Nation sold the lots in the town, and he purchasers bought them according to this plat, and in eliance upon it. It has become a muniment of title to every sroperty holder in the town.” This action amounts to a .edication of the use and occupancy of this land to the resi-.ents of Vinita by the Cherokee Nation, and it is beyond the [432] power of the Cherokee Nation to rescind it. Cummings vs City of St. Louis (Mo. Sup.) 2 S. W. 130; County of Harris vs Taylor, 58 Tex. 690; Brown vs Manning, 6 Ohio 298; People vs Underhill, 23 N. Y. Supp. 388, 69 Hun. 86. Also, see the leading case, City of Cincinnati vs White’s Lessee, P Pet. 431, and cases cited. Under the allegations of the complaint, we think the doctrine of res adjudicata can be invok ed. Freem. Judgm. (3d Ed.) § § 248, 249; .1 Van Fleet. Former Adj. pp. 90, 91; Story, Eq. PL § § 780-782. We are of the opinion that the court below properly overruled the defendant’s demurrer, and that the decree of the court making the injunction perpetual against the defendant should be sustained. The decree of the court below is therefore af firmed. Clayton and Thomas, JJ., concur.