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September 28, 1891, and was entered by the probate judge of said county for the use of the occupants thereof on the 9th day of November, 1891, and on November 30, 1891, said probate judge appointed three commissioners to set apart to the persons entitled to the same the several lots and parcels of land included within the town-site entry; that appellee was a qualified settler, and did on the day that said lots were opened to settlement select, settle upon, and establish his residence on said lot, and resided thereon continuously until the date of the bringing of this action, and that no other person had ever occupied the same; that he filed his application with said town-site commissioners for said lot, and that there were other claimants to said lot; that on the day fixed for a hearing of the several claims to said lot the commissioners refused to hear his cause unless he would first deposit with them a sum of money sufficient to pay all expenses of the commissioners and other costs of one day's trial. This appellee refused to do, and the commissioners awarded the lot to the appellant, Brown, and the same was conveyed to him by the probate judge. It is further alleged that the plaintiff offered to pay all legal assessments against said lot, but the tender was not accepted. He now offers to bring into court the costs, fees, and expenses paid by Brown, and demands that Brown be compelled to convey the legal title to him. To this petition the defendant demurred, setting up three causes of demurrer, viz.: (1) "The court has no jurisdiction of the subject-matter of the action." (2) "The petition does not state facts sufficient to constitute a cause of action." (3) "There is a defect of parties defendant." The court overruled the demurrer, to which defendant excepted; trial had by the court, a finding and judgment for Parker, and a commissioner appointed to convey the legal title in said lot to him. From this judgment Brown appeals.

A number of questions are presented by the record. This town site was entered under sections 2387, 2388, Rev. St., as provided in section 17, Act March 3, 1891 (26 Stat. 1026). This section authorizes the secretary of the interior to designate the county lines in Oklahoma, and establish and reserve county seats, which shall be entered under sections 2387, 2388, Rev. St. U. S. Section 2387 provides "that the execution of the trust as to the disposal of the lots in any town entered under its provisions, and the proceeds of the sale thereof shall be conducted under such regulations as may be prescribed by the legislative authorities of the state or territory in which the same may be situated." Congress by express authority permitted the legislatures of the several states and territories to regulate the execution of the trust imposed by the statute on probate judges. Pursuant to this authority, the legislature of Oklahoma passed an act which took effect December 25, 1890 (St. 1893, p. 1145), which

act is very complex, and covers a number of subjects. It attempts to divert the proceeds of sales of lots from the purposes authorized by congress, and also attempts to regulate the practice before and appeals from the board of town-site trustees appointed by the secretary of the interior under the laws of congress. At the same session of the Oklahoma legislature a number of laws were passed extending the jurisdiction of probate judges in divers matters, and congress, in section 17 of the act of March 3, 1891, supra, ratified these acts, except the town-site act, which was especially repudiated, and the terms of section 2387, modified and superseded by the later act, which provides: "That in addition to the jurisdiction granted to the probate courts and the judges thereof in Oklahoma territory by legislative enactments, which enactments are hereby ratified, the probate judges of said territory are hereby granted such jurisdiction in townsite matters and under such regulations as are provided by the laws of the state of Kansas." By this provision congress intended to repudiate the act of Oklahoma on this subject, and adopt for the government of probate judges in town-site matters in Oklahoma the laws of the state of Kansas, by giving to said judges "such jurisdiction in townsite matters and under such regulations as are provided by the laws of the state of Kansas." The statute has the effect to exclude any other jurisdiction in such matters, or any other regulations. So, in determining the rights of persons, the powers of the commissioners, and the authority of probate judges in town-site matters, we must look alone to the laws of the United States and of the state of Kansas. The town-site act of Kansas has been frequently construed by the court of highest resort in that state, and congress adopted these laws for us with these judicial constructions in view, and we are not left in the dark as to their intent, force, and effect. The legis lative authority permitted by congress does not extend to the conferring of any rights to the public lands; the rights accrue under and by virtue of the laws of congress. The legislature can only regulate the manner of determining the rights of occupants or claimants to lots, and direct how the trust imposed in the probate judge shall be executed. Under the laws relating to town sites under which the town of Chandler was entered, the commissioners had no power or authority fo make rules which would affect the substantial rights of any occupant or claimant to a lot; and the law gave them no authority to require deposits from persons seeking to acquire title. The only authority given the commissioners under the laws of Kansas was after publishing notice of the time to proceed to set off to the persons entitled to the same, according to their respective interests, the lots, squares, or grounds to which each of the occupants were entitled; after this was done, and not before, it was their

duty to appraise the several parcels or lots according to their respective values, and proceed to levy a tax or assessment upon the lots and improvements thereon, according to their value, sufficient to raise a fund to reimburse the parties who had purchased the town site from the government, together with all the expenses connected with the proceedings. They were then required to return all their plats, papers, assessments, and awards to the probate judge. It was then the duty of the judge to proceed to collect the assessments, and to convey to the occupants as reported by the commissioners the several tracts as their respective interests might appear on payment of the required assessment. The commissioners took no interest in the lands, and were given no authority to examine witnesses or hear contests; but the law contemplates that they will from actual view and observation, and such proof as may be furnished them by claimants, ascertain who were the occupants of lots at the date of the entry, and make their report accordingly. They had nothing to do with collecting fees or expenses, and had no authority to either receive the same or require a deposit for any purpose; and any requirement of this character was a usurpation of authority, and a claimant for lots in the town site was not bound to recognize it, and might ignore it without forfeiting any substantial rights. The acts of the commissioners were not conclusive, but any party whose substantial rights were adversely affected by their action might go into a court of equity to have his rights determined under the laws of the United States and the laws governing the execution of the trust. There is no appeal from their action to any court or tribunal having appellate powers over them, and hence the plaintiff in the case at bar adopted the only remedy left open to him. The district court had the authority to hear and determine the matters set forth in his petition; hence the first cause for demurrer was properly overruled.

We think the complaint alleges all the facts necessary to entitle the plaintiff to the relief prayed for. He alleges his qualifications to enter public lands; that he actually occupied, improved, and resided upon the lot in question; that he made application to the commissioners and probate judge for title; that he tendered the assessments; that he was denied the award, and that the lot was conveyed to the defendant; and he offers to reimburse the defendant for the assessments paid by him. This makes a good case for equitable interference. The commissioners were neither necessary nor proper parties to the action; they never had any interest in the subject-matter, and their connection with the proceedings terminated when they made their report to the probate judge. The laws of the United States gave the lots embraced in the town site to the occupants at the date of the entry by the probate judge. A right acquired by occupancy may be transferred

and the transferee may acquire title, but he must be an occupant, either actual or constructive, at the date of the entry. He cannot abandon his occupancy, and permit another to take actual possession without objection, and remain out of possession without any improvements except to acquire title. The law does not contemplate such occupancy. It does not evidence good faith. There was no error in the court's overruling the demurrer to the petition.

The only question presented by the motion for new trial which we deem of sufficient weight to warrant consideration is the sufficiency of the evidence to sustain the finding and judgment. The evidence shows that shortly after the opening of the town site there was some confusion and uncertainty about the surveys and location of lots, and that several persons laid claim to the lot in dispute, and attempted to settle upon it. The plaintiff, within a short time after noon of the day of the opening, placed his tent upon the lot, afterwards fenced it, and made his residence upon it, and continued in actual possession of the lot until the time of the bringing of this action. The defendant, Brown, purchased a settlement right from one Kinly, attempted to place some lumber on the lot that day, and afterwards had some holes dug for posts, and then made no further effort at improvements or occupancy. This was an abandonment of his rights, if he ever acquired any, and the evidence is conclusive that, at the date of the town-site entry, the plaintiff, Parker, was the only occupant of the lot. It seems that Brown got some kind of a "filing," as it was termed, from the probate judge, and possibly relied upon such instrument, and made no further efforts to maintain his occupancy by settlement, possession, or improvements. Such filings were unauthorized by any law of the United States or rules of the land department, and persons who procured them or took them did so at their own risk; and, if they relied upon them, must bear the consequences of their own stupidity. The evidence is abundantly sufficient to sustain the finding and judgment of the court. For the authorities supporting the views herein expressed, we refer to Rothbone v. Sterling, 25 Kan. 444; Johnson v. Towsley, 13 Wall. 84; Rector v. Gibbon, 111 U. S. 276, 4 Sup. Ct. 605.

It is contended by counsel for appellant that, this being an action affecting the title to real estate, he was entitled to a new trial as of right, and he cites some Kansas authorities in support of his theory. This cause was begun while the Indiana procedure was the law in this territory, and it must be tried and tested by that Code. Under our Code of 1890 adopted from Indiana, one might have a new trial as of right, when the title of real estate was involved, on motion within a year, and upon executing an undertaking, with approved sureties, that he would pay all costs and damages that might be recovered against him in the action. The fil

ing and approval of this undertaking was a condition precedent to granting a new trial. No such motion or offer was made in the court. The motion for new trial was for causes assigned, and on such a motion the court cannot grant a new trial as of right. Koile v. Ellis, 16 Ind. 301. We find no error in the record. The judgment is affirmed, at costs of appellant. All the justices concurring, except BIERER, J., not sitting.

(22 Nev. 280)

parte GARDNER. (No. 1,427.) (Supreme Court of Nevada. March 19, 1895.) CHANGE OF VENUE-JURISDICTION-CONTEMPT.

1. The district court of one county has no power to make an order that an action pending in the court of another county shall be transferred to the first-named court. Such an order is void, and gives the court no jurisdiction of the action.

2. Where a court has no jurisdiction of an action, any order it may make in such action is equally without jurisdiction, and void.

3. It is not a contempt of court to fail to comply with an order which the court had no jurisdiction to make, and a party imprisoned for a contempt committed under such circumstances will be discharged upon habeas corpus.

(Syllabus by the Court.)

Application by James Gardner for discharge on habeas corpus. Granted.

Torreyson & Summerfield and James R. Judge, for petitioner. Wm. Woodburn, for respondent.

BIGELOW, C. J. The wife of petitioner brought an action against him for a divorce in the district court of Lyon county. The complaint also asks for the custody of the infant child of the parties. On January 26, 1895, while the action was pending in Lyon county, the district court of Ormsby county made the following order: "Ida L. Gardner v. James H. Gardner. In this entitled cause, and by consent of William Woodburn, Esq., counsel for plaintiff, and J. D. Torreyson, Esq., of counsel for defendant, it was ordered that the cause herein be, and the same is hereby, transferred from the county of Lyon to the county of Ormsby, state of Nevada, and set for hearing February 12, 1895." On February 12th, while the trial of the action was progressing before the court in Ormsby county, the attorney for the plaintiff, upon , certain affidavits, asked an order of the court directing the defendant to deliver the custody of the child to the plaintiff during the pendency of the case, and an order was made to that effect. This order not having been complied with, on February 14th the court ordered the defendant to produce the child in court at 3 o'clock of that day. By subsequent orders the time for doing this was extended until February 23d, when, the defendant failing to produce the child, the following order was made: "Ordered that the defendant, James H. Gardner, is guilty of contempt of court, and that he be confined in the Lyon county jail, Lyon county, state of Nevada,

until he produces his child in court in compliance with an order heretofore made." Subsequently an order was issued, purporting to be made in the district court of Lyon county, but certified by the clerk of Ormsby county to be a copy of the judgment of contempt on file in his office, directing the sheriff of Ormsby county to arrest the petitioner, and deliver him to the sheriff of Lyon county, where he was to be confined until he should produce the child. Under this order he has been arrested by the sheriff of Ormsby county, and from his custody he now asks to be discharged.

As so often decided, the only question we can consider upon this application is whether the district court of Ormsby county, which really made the order for the petitioner's arrest and confinement (although there seems to be some uncertainty in the orders as to which court the action was then pending in), had authority or jurisdiction to do so. We are of the opinion that it did not. Notwithstanding that Lyon and Ormsby counties are both in the same judicial district, the courts of those counties are still separate and distinct. The only thing they have in common is that the same judge presides over both. A judicial district is simply a political division, provided for by the constitution, but arranged by the legislature, for the purpose of economizing in the number of judges. In fact, the inclusion of any two counties in the same district may almost be said to be accidental. The judge alone does not constitute a "court." Burrill defines the term thus: "A 'court' may be more particularly described as an organized body with defined powers, meeting at certain times and places for the hearing and decision of causes and other matters brought before it, and aided in this, its proper business, by its proper officers, viz.: Attorneys and counsel to present and manage the business, clerks to record and attest its acts and decisions, and ministerial officers to execute its commands and secure due order in its proceedings," Proceedings at another time and place, or in another manner than that specified by law, though in the personal presence and under the direction of a judge, are coram non judice, and void. State v. Roberts, 8 Nev. 239; Wightman v. Karsner, 20 Ala. 446; Brumley v. State, 20 Ark. 77. It follows that the district court of Lyon county could not possibly have had any authority to sit as a court in Ormsby county, even supposing it had attempted to do so. Section 21 of the practice act (Gen. St. § 3043) provides that "the court may on motion change the place of trial." This, of course, means the court where the action is pending. It is not possible for one court to reach out and draw to itself jurisdiction of an action pending in another court, even when done with the consent of parties; for that would be to confer jurisdiction by consent, which, so far as subject-matter is concerned, can never be done. Not having jurisdiction of the action, it had no jurisdiction to order the

defendant to produce the child. Walton v. Develing, 61 Ill. 201; In re Ayers, 123 U. S. 443, 8 Sup. Ct. 164; Piper v. Pearson, 2 Gray, 120. Having no jurisdiction to make the order, it was not a contempt for the petitioner to fail to comply with it. Mr. Spelling, in his work on Extraordinary Relief (section 1243), says: "Where a court attempts by its process of contempt to punish a party for his refusal to comply with an order which that court had no authority to make, the original order being void for want of jurisdiction, the order punishing for contempt is also void, and, if the proceeding for contempt result in imprisonment, the prisoner may be dischar ged by another court on habeas corpus." See, also, Rap. Contempt, § 16. It is ordered that the petitioner be discharged.

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1. Where land condemned for a railroad was available for both mining and town-lot purposes, it was error, in ascertaining its market value, to compel the owner to elect whether he would prove the value as town lots or as a mine.

2. A railroad company does not take the -owner's estate in minerals in land condemned for its right of way, nor, only so far as to preserve its easement, the right to work the ground for such minerals.

Appeal from district court, Silver Bow county; J. J. McHatton, Judge.

Action by the Northern Pacific & Montana Railway Company against James W. Forbis, James A. Murray, and others to condemn land. From a judgment of the district court awarding him $4,000 as damages, and an order denying a new trial, defendant Murray appeals. Reversed.

This is a proceeding brought by respondent to condemn land of appellant for railroad purposes. There were a large number of landowners as defendants, one of whom, James A. Murray, owner of what was called the "Railroad Mining Claim," being dissatisfied with the award of the commissioners, appealed to the district court. The case was there tried, and as a result Murray was awarded the sum of $4,000 as damages. He moved for a new trial, which motion was denied, and he now appeals from that order, and from the judgment. There is one principal error assigned by the appellant in this case, which appears in the record in several places. It may be stated as follows: The defendant on the trial desired to prove the value of the ground for town-site or town-lot purposes, and also its value as a mining claim. The court held that the landowner could obtain the market value of the land,

based upon its availability for the most valuable purposes for which it could be used, and could not recover a value for two purposes, and therefore required the appellant, in his proof, to elect which value he would prove,-that is, the value as town lots or the value as a mine. Under this ruling, the appellant involuntarily elected to prove the value as town lots, and now complains of error in that he was not allowed to prove value as a mine as well.

Wm. Scallon and F. W. Cole, for appellant. Toole & Wallace, for respondent.

DE WITT, J. (after stating the facts). The court below based its ruling in the matter complained of upon its view of the decision in the case of Railway Co. v. Warren, 6 Mont. 275, 12 Pac. 641. That was an action by the railway company to condemn the land of a mining claim for railroad purposes. In that case the value of the land both as a mine and as town lots was proven. But the court instructed the jury that the landowner could not recover the value of the land for both purposes. This is all that is said of the instruction in the report of the case in 6 Mont. 284, 12 Pac. 641. Upon examination of the record in the case as filed in this court, we find that the instruction in this respect was in full as follows: "(12) If the jury believe from the evidence that the use of the surface of the Nipper claim for town-lot purposes would prevent its use for mining purposes to as great an extent as the construction of the railway prevents such use, and if they base their estimate of damages on the value of such surface for town lots, then they will not consider or allow any damages for any injury or inconvenience or any diminution in value to or in the claim for mining purposes; that is to say, the jury cannot, if they find as above, allow the owners damages both for the value of the surface as town lots and also for the value of such surface for mining purposes." The principle announced in the Warren Case in this court, and upon which the district court considered that it was properly proceeding in the case at bar, was not disturbed on the appeal of that case to the United States supreme court. 137 U. S. 348, 11 Sup. Ct. 96.

We are of opinion that the instruction in the Warren Case, which we have quoted above, is a correct statement of the law; and, furthermore, that, if this instruction had been placed in the opinion in that case in full, the reasoning of the case would have more symmetrically appeared, and that the district court in the case at bar, in ruling upon the question of evidence above described, would have been guided to a conclusion different from that which the learned judge below adopted. We are of opinion that the decisions hold that the landowner may recover the market value of the land for its most valuable purposes. The United

States supreme court said, in the case of Boom Co. v. Patterson, 98 U. S. 403, as follows: "The inquiry in such cases must be, what is the property worth in the market, viewed, not merely with reference to the uses to which it is at the time applied, but with reference to the uses to which it is plainly adapted; that is to say, what is it worth from its availability for valuable uses? Property is not to be deemed worthless because the owner allows it to go to waste, or to be regarded as valueless because he is unable to put it to any use. Others may be able to use it, and make it subserve the necessities or conveniences of life. Its capability of being made thus available gives it a market value which can be readily estimated. So many and varied are the circumstances to be taken into account in determining the value of property condemned for public purposes that it is perhaps impossible to formulate a rule to govern its appraisement in all cases. Exceptional circumstances will modify the most carefully guarded rule; but, as a general thing, we should say that the compensation to the owner is to be estimated by reference to the uses for which the property is suitable, having regard to the existing business or wants of the community, or such as may be reasonably expected in the immediate future. *** The views we have expressed as to the justness of considering the peculiar fitness of the lands for particular purposes as an element in estimating their value find support in the several cases cited by counsel. Thus, in Re Furman St., 17 Wend. 669, where a lot upon which the owner had his residence was injured by cutting down an embankment in opening a street in the city of Brooklyn, the supreme court of New York said that neither the purpose to which the property was applied nor the intention of the owner in relation to its future enjoyment was a matter of much importance in determining the compensation to be made to him; but that the proper inquiry was, 'what is the value of the property for the most advantageous uses to which it may be applied? In Goodin v. Canal Co., 18 Ohio St. 169, where a railroad company sought to appropriate the bed of a canal for its track, the supreme court of Ohio held that the rule of valuation was what the interest of the canal company was worth, not for canal purposes, or for any other particular use, but generally for any and all uses for which it might be suitable. And in Young v. Harrison, 17 Ga. 30, where land necessary for an abutment of a bridge was appropriated, the supreme court of Georgia held that its value was not to be restricted to its agricultural or productive capacities, but that inquiry might be made as to all purposes to which it could be applied, having reference to existing and prospective wants of the community. Its value as a bridge site was therefore allowed in the estimate of compensation to be awarded to the owner." It was said

in the case of Railway Co. v. Brown, 15 Colo. 196, 25 Pac. 87, as follows: "In arriving at the value of the property taken, and the damages, if any, to the residue, a wide range of evidence is admissible. It must be conceded that the matters admitted in evidence on the trial of this case, as above stated, have some bearing upon the compensation and damages to be awarded by the jury, though, without proper instructions from the court, the jury might be misled by such evidence. But as counsel do not urge in argument anything against the charge, and as upon examination the instructions appear to be full and fair, we must presume that the jury did not draw improper inferences from the evidence." In Lewis on Eminent Domain (section 479), the author, after reviewing the topic of value for particular uses, closes the section with this language: "The conclusion from the authorities and reason of the matter seems to be that witnesses should not be allowed to give their opinions as to the value of property for a particular purpose, but should state its market value in view of any purpose to which it is adapted. The condition of the property and all its surroundings may be shown, and its availability for any particular use. If it has a peculiar adaptation for certain uses, this may be shown, and if such peculiar adaptation adds to its value the owner is entitled to the benefit of it. But, when all the facts and circumstances have been shown, the question at last is, what is it worth in the market?" See, also, Maynard v. City of Northampton, 157 Mass. 218, 31 N. E. 1062; Russell v. Railway Co., 33 Minn. 210, 22 N. W. 379; Harrison v. Young, 9 Ga. 359; Johnson v. Railroad Co., 111 Ill. 413; Manuf'g Co. v. Worcester, 60 N. H. 522; Goodin v. Canal Co., 18 Ohio St. 169; 6 Am. & Eng. Enc. Law, p. 569, note 7, and cases; Railroad Co. v. McGehee, 41 Ark. 202.

Upon the trial of the Warren Case, testimony as to value for town-lot purposes and for mining purposes was offered, and allowed by the court. With this condition of the testimony, we think that the court properly stated the law applicable to such testimony when it instructed the jury that the landowner could not recover the value of the ground for two uses or purposes. But we think that the court by this holding intended to say, and that it was so understood, in the case, that this meant two incompatible uses; for, if the uses are incompatible, if the landowner uses the land for one purpose, he cannot use it for the other, nor could his grantee use the land for both such incompatible purposes, whether such grantee is a railroad company, receiving by operation of law, or a town-lot occupant, receiving by the grantor's voluntary deed. But, on the other hand, if the proposed or described uses of the land do not interfere with each other, it is apparent that the owner, or his grantee, can use the land for both purposes; and, if

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