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September 28, 1891, and was entered by the act is very complex, and covers a number probate judge of said county for the use of of subjects. It attempts to divert the prothe occupants thereof on the 9th day of No- ceeds of sales of lots from the purposes auvember, 1891, and on November 30, 1891, thorized by congress, and also attempts to said probate judge appointed three commis- regulate the practice before and appeals sioners to set apart to the persons entitled from the board of town-site trustees apto the same the several lots and parcels of pointed by the secretary of the interior unland included within the town-site entry; der the laws of congress. At the same sesthat appellee was a qualified settler, and did sion of the Oklahoma legislature a number of on the day that said lots were opened to set- laws were passed extending the jurisdiction tlement select, settle upon, and establish his of probate judges in divers matters, and conresidence on said lot, and resided thereon gress, in section 17 of the act of March 3, continuously until the date of the bringing 1891, supra, ratified these acts, except the of this action, and that no other person had town-site act, which was especially repuever occupied the same; that he filed his diated, and the terms of section 2387, modi. application with said town-site commission- fied and superseded by the later act, which ers for said lot, and that there were other provides: “That in addition to the jurisdicclaimants to said lot; that on the day fixed tion granted to the probate courts and the for a hearing of the several claims to said judges thereof in Oklahoma territory by leglot the coinmissioners refused to hear his islative enactments, which enactments are cause unless he would first deposit with them hereby ratified, the probate judges of said

sum of money sufficient to pay all ex- territory are hereby granted such jurisdicpenses of the commissioners and other costs tion in townsite matters and under such of one day's trial. This appellee refused to regulations as are provided by the laws of do, and the commissioners awarded the lot the state of Kansas." By this provision to the appellant, Brown, and the same was congress intended to repudiate the act of conveyed to him by the probate judge. It is Oklahoma on this subject, and adopt for the further alleged that the plaintiff offered to government of probate judges in town-site pay all legal assessments against said lot, but matters in Oklahoma the laws of the state the tender was not accepted. He now offers of Kansas, by giving to said judges "such to bring into court the costs, fees, and ex- jurisdiction in townsite matters and under penses paid by Brown, and demands that such regulations as are provided by the laws Brown be compelled to convey the legal title of the state of Kansas." The statute has to him. To this petition the defendant de- the effect to exclude any other jurisdiction murred, setting up three causes of demurrer, in such matters, or any other regulations. viz.: (1) “The court has no jurisdiction of So, in determining the rights of persons, the the subject-matter of the action." (2) "The powers of the commissioners, and the authorpetition does not state facts sufficient to con- ity of probate judges in town-site matters, stitute a cause of action." (3) "There is a we must look alone to the laws of the United defect of parties defendant.” The

States and of the state of Kansas. The overruled the demurrer, to which defendant town-site act of Kansas has been frequently excepted; trial had by the court, a finding construed by the court of highest resort in and judgment for Parker, and a commis- that state, and congress adopted these laws sioner appointed to convey the legal title in for us with these judicial constructions in said lot to him.

From this judgment Brown view, and we are not left in the dark as to appeals.

their intent, force, and effect. The legisA number of questions are presented by the lative authority permitted by congress does record. This town site was entered under not extend to the conferring of any rights to sections 2387, 2388, Rev. St., as provided in the public lands; the rights accrue under and section 17, Act March 3, 1891 (26 Stat. 1026). by virtue of the laws of congress. The leg. This section authorizes the secretary of the islature can only regulate the manner of interior to designate the county lines in determining the rights of occupants or claimOklahoma, and establish and reserve coun- ants to lots, and direct how the trust imty seats, which shall be entered under sec- posed in the probate judge shall be executed. tions 2387, 2388, Rev. St. U. S. Section 2387 Under the laws relating to town sites under provides "that the execution of the trust as which the town of Chandler was entered, the to the disposal of the lots in any town en- commissioners had no power or authority to tered under its provisions, and the proceeds make rules which would affect the substanof the sale thereof shall be conducted under tial rights of any occupant or claimant to a such regulations as may be prescribed by lot; and the law gave them no authority to the legislative authorities of the state or ter- | require deposits from persons seeking to acritory in which the same may be situated.” | quire title. The only authority given the Congress by express authority permitted the commissioners under the laws of Kansas legislatures of the several states and terri- was after publishing notice of the time to tories to regulate the execution of the trust | proceed to set off to the persons entitled to imposed by the statute on probate judges. the same, according to their respective interPursuant to this authority, the legislature of ests, the lots, squares, or grounds to which Oklahoma passed an act which took effect each of the occupants were entitled; after December 25, 1890 (St. 1893, p. 1145), whicb this was done, and not before, it was their

court

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 icquired 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 an. other 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 suffciency 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 apy, 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 judg. ment 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

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ing and approval of this undertaking was a until he produces his child in court in complicondition precedent to granting a new trial. ance with an order heretofore made." SubNo such motion or offer was made in the sequently ap order was issued, purporting to court. The motion for new trial was for be made in the district court of Lyon county, causes assigned, and on such a motion the but certified by the clerk of Ormsby county court cannot grant a new trial as of right. to be a copy of the judgment of contempt on Koile v. Ellis, 16 Ind. 301. We find no error file in his office, directing the sheriff of Ormsin the record. The judgment is affirmed, at by county to arrest the petitioner, and deliver costs of appellant. All the justices concur- him to the sheriff of Lyon county, where he ring, except BIERER, J., pot sitting.

was to be confined until he should produce the child. Under this order he has been ar

rested by the sheriff of Ormsby county, and (22 Nev. 280)

from his custody he now asks to be disparte GARDNER. (No. 1,427.) charged. (Supreme Court of Nevada. March 19, 1895.) As so often decided, the only question we CHANGE OF Vexue—JURISDICTION-CONTEMPT. can consider upon this application is whether

1. The district court of one county has no the district court of Ormsby county, which power to make an order that an action pending really made the order for the petitioner's arin the court of another county shall be trans

rest and confinement (although there seems to ferred to the first-named court. Such an order is void, and gives the court no jurisdiction of the

be some uncertainty in the orders as to which action.

court the action was then pending in), had au2. Where a court has no jurisdiction of an thority or jurisdiction to do so. We are of action, any order it may make in such action is

the opinion that it did not. Notwithstanding equally without jurisdiction, and void.

3. It is not a contempt of court to fail to that Lyon and Ormsby counties are both in comply with an order which the court had no the same judicial district, the courts of those jurisdiction to make, and a party imprisoned for

counties are still separate and distinct. The a contempt committed under such circumstances will be discharged upon habeas corpus.

only thing they have in common is that the (Syllabus by the Court.)

same judge presides over both. A judicial

district is simply a political division, providApplication by James Gardner for dis

ed for by the constitution, but arranged by charge on habeas corpus.

Granted.

the legislature, for the purpose of economizTorreyson & Summerfield and James R. ing in the number of judges. In fact, the inJudge, for petitioner. Wm. Woodburn, for clusion of any two counties in the same disrespondent.

trict may almost be said to be accidental.

The judge alone does not constitute a "court." BIGELOW, C. J. The wife of petitioner Burrill defines the term thus: “A 'court' brought an action against him for a divorce may be more particularly described as an orin the district court of Lyon county. The ganized body with defined powers, meeting complaint also asks for the custody of the at certain times and places for the hearing infant child of the parties. On January 26, and decision of causes and other matters 1895, while the action was pending in Lyon brought before it, and aided in this, its propcounty, the district court of Ormsby county er business, by its proper officers, viz.: Atmade the following order: "Ida L. Gardner | torneys and counsel to present and manage V. James H. Gardner. In this entitled cause, the business, clerks to record and attest its and by consent of William Woodburn, Esq., acts and decisions, and ministerial officers counsel for plaintiff, and J. D. Torreyson, to execute its commands and secure due order Esq., of counsel for defendant, it was ordered in its proceedings," Proceedings at another that the cause herein be, and the same is time and place, or in another manner than hereby, transferred from the county of Lyon that specified by law, though in the personal to the county of Ormsby, state of Nevada, presence and under the direction of a judge, and set for hearing February 12, 1895.” On are coram non judice, and void. State v. February 12th, while the trial of the action Roberts, 8 Nev. 239; Wightman v. Karsner, was progressing before the court in Ormsby 20 Ala. 446; Brumley V. State, 20 Ark. 77. county, the attorney for the plaintiff, upon It follows that the district court of Lyon certain affidavits, asked an order of the court county could not possibly have had any audirecting the defendant to deliver the custody thority to sit as a court in Ormsby county, of the child to the plaintiff during the pend- even supposing it had attempted to do so. ency of the case, and an order was made to Section 21 of the practice act (Gen. St. $ 3013) that effect. This order not having been com- provides that "the court may on motion plied with, on February 14th the court or- change the place of trial.” This, of course, dered the defendant to produce the child in

means the court where the action is pending. court at 3 o'clock of that day. By subsequent It is not possible for one court to reach out orders the time for doing this was extended and draw to itself jurisdiction of an action until February 23d, when, the defendant fail- pending in another court, even when done ing to produce the child, the following order with the consent of parties; for that would was made: "Ordered that the defendant, | be to confer jurisdiction by consent, which, James H. Gardner, is guilty of contempt of so far as subject-matter is concerned, can court, and that he be confined in the Lyon never be done. Not having jurisdiction of county jail, Lyon county, state of Nevada, 1 the action, it had no jurisdiction to order the defendant to produce the child. Walton v. based upon 'its availability for the most valDeveling, 61 Ill. 201; In re Ayers, 123 U. S. uable purposes for which it could be used, 413, 8 Sup. Ct. 164; Piper v. Pearson, 2 Gray, and could not recover a value for two pur120. Having no jurisdiction to make the or- poses, and therefore required the appellant, der, it was not a contempt for the petitioner in his proof, to elect which value he would to fail to comply with it. Mr. Spelling, in prove,—that is, the value as town lots or the his work on Extraordinary Relief (section value as a mine. Under this ruling, the ap12 13), says: “Where a court attempts by its pellant involuntarily elected to prove the process of contempt to punish a party for his value as town lots, and now complains of errefusal to comply with an order which that ror in that he was not allowed to prove value court had no authority to make, the original as a mine as well. order being void for want of jurisdiction, the

Wm. Scallon and F. W. Cole, for appellant. order punishing for contempt is also void,

Toole & Wallace, for respondent. and, if the proceeding for contempt result in imprisonment, the prisoner may be discharged by another court on habeas corpus." DE WITT, J. (after stating the facts). See, also, Rap. Contempt, $ 16. It is or- The court below based its ruling in the mat. dered that the petitioner be discharged. ter complained of upon its view of the deci

sion in the case of Railway Co. v. Warren, 6 BONNIFIELD and BELKNAP, JJ., con- Mont, 277, 12 Pac. 641. That was an action cur.

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 (15 Mont. 452)

mine and as town lots was proven. But the NORTHERN PAC. & M. RY. CO. v. FORBIS

court instructed the jury that the landowner et al.

could not recover the value of the land for Appeal of MURRAY.

both purposes. This is all that is said of the (Supreme Court of Montana. March 11, 1895.) instruction in the report of the case in 6 EMINEST DOMAIN-MEASURE OF DAMAGES-MIN- Mont. 284, 12 Pac. 641. Upon examination ERAL LAND.

of the record in the case as filed in this court, 1. Where land condemned for a railroad was available for both mining and town-lot pur

we find that the instruction in this respect poses, it was error, in ascertaining its market was in full as follows: "(12) If the jury bevalue, to compel the owner to elect whether he lieve from the evidence that the use of the would prove the value as town lots or as a mine.

surface of the Nipper claim for town-lot pur2. A railroad company does not take the owner's estate in minerals in land condemned for

poses would prevent its use for mining purits right of way, nor, only so far as to preserve poses to as great an extent as the construcits easement, the right to work the ground for

tion of the railway prevents such use, and if such minerals.

they base their estimate of damages on the Appeal from district court, Silver Bow value of such surface for town lots, then they county; J. J. McHatton, Judge.

will not consider or allow any damages for Action by the Northern Pacific & Montana any injury or inconvenience or any diminuRailway Company against James W. Forbis, tion in value to or in the claim for mining James A. Murray, and others to condemn purposes; that is to say, the jury cannot, land. From a judgment of the district court if they find as above, allow the owners damawarding him $4,000 as damages, and an or- ages both for the value of the surface as der denying a new trial, defendant Murray towp lots and also for the value of such surappeals. Reversed.

face for mining purposes." The principle This is a proceeding brought by respondent announced in the Warren Case in this court, to condemn land of appellant for railroad and upon which the district court considered purposes. There were a large number of that it was properly proceeding in the case landowners as defendants, one of whom, at bar, was not disturbed on the appeal of James A. Murray, owner of what was called that case to the United States supreme court. the “Railroad Mining Claim,” being dissat- 137 U. S. 318, 11 Sup. Ct. 96. isfied with the award of the commissioners, We are of opinion that the instruction in appealed to the district court. The case was the Warren Case, which we have quoted there tried, and as a result Murray was above, is a correct statement of the law; awarded the sum of $4,000 as damages. He and, furthermore, that, if this instruction moved for a new trial, which motion was de- had been placed in the opinion in that case nied, and he now appeals from that order, in full, the reasoning of the case would have and from the judgment. There is one princi- more symmetrically appeared, and that the pal error assigned by the appellant in this district court in the case at bar, in ruling case, which appears in the record in several upon the question of evidence above deplaces. It may be stated as follows: The scribed, would have been guided to a concludefendant on the trial desired to prove the sion different from that which the learned value of the ground for town-site or town-lot judge below adopted. We are of opinion purposes, and also its value as a mining that the decisions hold that the landowner claim. The court held that the landowner may recover the market value of the land could obtain the market value of the land, for its most valuable purposes. The United States supreme court said, in the case of in the case of Railway Co. v. Brown, 15 Colo. Boom Co. v. Patterson, 98 U. S. 403, as fol- 196, 25 Pac. 87, as follows: "In arriving at lows: "The inquiry in such cases must be, the value of the property taken, and the what is the property worth in the market, damages, if any, to the residue, a wide range viewed, not merely with reference to the of evidence is admissible. It must be conuses to which it is at the time applied, but | ceded that the matters admitted in evidence with reference to the uses to which it is on the trial of this case, as above stated, plainly adapted; that is to say, what is it have some bearing upon the compensation worth from its availability for valuable uses? and damages to be awarded by the jury, Property is not to be deemed worthless be- though, without proper instructions from the cause the owner allows it to go to waste, or court, the jury might be misled by such evito be regarded as valueless because he is dence. But as counsel do not urge in arguunable to put it to any use. Others may be ment anything against the charge, and as able to use it, and make it subserve the ne- upon examination the instructions appear to cessities or conveniences of life. Its capa- be full and fair, we must presume that the bility of being made thus available gives it jury did not draw improper inferences from a market value which can be readily estimat-| the evidence.” In Lewis on Eminent Domain ed. So many and varied are the circumstan- (section 479), the author, after reviewing the ces to be taken into account in determining topic of value for particular uses, closes the the value of property condemned for public section with this language: "The conclusion purposes that it is perhaps impossible to from the authorities and reason of the matformulate a rule to govern its appraisement ter seems to be that witnesses should not be in all cases. Exceptional circumstances will allowed to give their opinions as to the value modify the most carefully guarded rule; but, of property for a particular purpose, but as a general thing, we should say that the should state its market value in view of any compensation to the owner is to be estimated purpose to which it is adapted. The condiby reference to the uses for which the prop- tion of the property and all its surrounderty is suitable, having regard to the exist. ings may be shown, and its availability ing business or wants of the community, or for any particular use. If it has a pesuch as may be reasonably expected in the culiar adaptation for certain uses, this may immediate future.

The views we be shown, and if such peculiar adaptahave expressed as to the justness of consid- tion adds to its value the owner is enering the peculiar fitness of the lands for titled to the benefit of it. But, when all the particular purposes as an element in estimat- facts and circumstances have been shown, ing their value find support in the several the question at last is, what is it worth in cases cited by counsel. Thus, in Re Furman the market?” See, also, Maynard v. City of St., 17 Wend. 669, where a lot upon which Northampton, 157 Mass. 218, 31 N. E. 1062; the owner had his residence was injured by Russell v. Railway Co., 33 Minn. 210, 22 N. cutting down an embankment in opening a W. 379; Harrison v. Young, 9 Ga. 359; John. street in the city of Brooklyn, the supreme son v. Railroad Co., 111 Ill. 413; Manuf'g court of New York said that neither the pur- Co. v. Worcester, 60 N. H. 522; Goodin v. pose to which the property was applied nor Canal Co., 18 Ohio St. 169; 6 Am. & Eng. the intention of the owner in relation to its Enc. Law, p. 569, note 7, and cases; Railfuture enjoyment was a matter of much im- road Co. v. McGehee, 41 Ark. 202. portance in determining the compensation to Upon the trial of the Warren Case, testibe made to him; but that the proper inquiry mony as to value for town-lot purposes and was, 'what is the value of the property for for mining purposes was offered, and althe most advantageous uses to which it may lowed by the court. With this condition of be applied?' In Goodin v. Canal Co., 18 the testimony, we think that the court propOhio St. 169, where a railroad company erly stated the law applicable to such testisought to appropriate the bed of a canal for mony when it instructed the jury that the its track, the supreme court of Ohio held that landowner could not recover the value of the the rule of valuation was what the interest ground for two uses or purposes. But we of the canal company was worth, not for think that the court by this holding intended canal purposes, or for any other particular to say, and that it was so understood, in the use, but generally for any and all uses for case, that this meant two incompatible uses; which it might be suitable. And in Young v. for, if the uses are incompatible, if the landHarrison, 17 Ga. 30, where land necessary owner uses the land for one purpose, he can. for an abutment of a bridge was appropriat- not use it for the other, nor could his grantee ed, the supreme court of Georgia held that use the land for both such incompatible purits value was not to be restricted to its agri- poses, whether such grantee is a railroad cultural or productive capacities, but that in- company, receiving by operation of law, or quiry might be made as to all purposes to a town-lot occupant, receiving by the granwhich it could be applied, having reference tor's voluntary deed. But, on the other to existing and prospective wants of the com- hand, if the proposed or described uses of munity. Its value as a bridge site was there- the land do not interfere with each other, it fore allowed in the estimate of compensation is apparent that the owner, or his grantee, to be awarded to the owner.” It was said can use the land for both purposes; and, if

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