Volume 100 — Oklahoma Reports

<p>1. Eminent Domain — Railroad Right of Way — Abandonment—Question of Fact.</p> <p>Where a railroad company condemned land for its right of way, which is limited under the law to 100 feet, or 50 feet from the center of the track on each side, and allows an additional 100 feet where cuts and fills are necessary, and the appraisers added 25 feet additional on each side, and the evidence shows that said 25-foot strips were not needed for cuts or fills, and said railroad company in fencing its right of way only fenced 50 feet from the center of the track on each side and laid no claim to the additional 25 feet and permitted the owner of the land to cultivate and use it for twelve years, such acts on the part of defendant railroad raise the question of abandonment under all the facts and circumstances of the case, and it was error for the court to direct a verdict for the defendant railroad.</p> <p>2. Same.</p> <p>To constitute abandonment of an easement of right of way. there must be not only an actual relinquishment, but an intention to abandon; and this is a question of fact for the jury, or the court sitting as a trier of the facts, under all the evidence.</p> <p>(Syllabus by Maxey, C.)</p>

Commissioners’ Opinion, Division No. 1. Error from District Oourt, Stephens County; Cham Jones, Judge. Action by Nannie Stidham against A. S. Moore and wife to cancel a certain deed. Decree for defendants, and plaintiff brings error.

<p>Commissioners’ Opinion, Division No. 3.</p> <p>Error from District Court, Beckham County; T. P. Clay, Judge.</p> <p>Action by James ¡M. Loftis against! Thomas J. Nunley. Judgment for plaintiff, and defendant brings error.</p>

Commissioners’ Opinion, Division No. 5. Error from District Court, Tulsa County; Albert C. Hunt, Judge). Action by L. B. Holt against F. W. Freeborn for recovery of damages sustained to his automobile in a collision. Judgment for plaintiff. Defendant brings error.

<p>Appeal and Error — Law Action — Verdict— Conflicting Evidence — Affirmance.</p> <p>In a law action where issues of fact are submitted to the jury under proper instructions and verdict returned, a judgment based thereon will not be disturbed where there is evidence in the record which reasonably tends to support the verdict of the jury.</p> <p>(Syllabus by Logsdon, O.)</p>

<p>Commissioners’ Opinion, Division No. 3.</p> <p>Error from District Court. Tulsa County; Redmond S. Cole, Judge.</p> <p>Action by G. W. Bishop against J. W. Sun-derland et al. Judgment for plaintiff, and defendants appeal.</p>

<p>1. Taxation — Registration of Notes for Taxation — Validity of Act.</p> <p>The Act of March 10, 1917, chapter 264, Session Laws 1917, scrutinized in the light of section 57, article 5, of Constitution of Oklahoma, and held not unconstitutional.</p> <p>2. Same — Action on Unregistered Note— Pleading and Evidence.</p> <p>• Where suit is based upon a note, and the petition attaches copy which shows it to be -of over eight months duration for sum of over $300 dated subsequent to March 10, .1917, and same is not registered and indorsed according to section 9608, Comp. Stat. 1921, and the petition shows the same does not belong to a bank or a note secured by real estate mortgage, the petition is subject to demurrer and such note is not competent evidence on trial of the case.</p> <p>3. Bills and Notes — Validity of Note Given by Assignee of Indian Land Lessee’s Interests.</p> <p>Where S. was the owner of two departmental leases on lands of members of the Kiowa, Comanche, and Apache Tribes of Indians for the year 1920, and one of which is in force for the year 1921, and application for contract on the other is approved ifor the year 1921, and on January 5, 1921, before the lease was executed and the bond given, S. makes a contract with H., selling the cotton unpicked in the fields on said lands and all his interest in the leases for the year 1921, for the sum of $1,525, $325 being paid in cash, and the balance evidenced by note of $1,200, payable November 1, 1921, said contract being conditioned upon the approval and acceptance by the Indian agent of H. as the tenant instead of S., and the acceptance and approval of said agent being given and afterward put in writing, by indorsement on the lease contracts, and a new contract being dated March 1, 1921, and making the term of the lease for the year, beginning January 1, and ending December 31, 1921, held that the leases were valid and the contract for the note valid and binding on the defendant.</p> <p>(Syllabus by Threadgill, O.)</p>

<p>1.Appeal and EiTor — Review—Findings of Fact.</p> <p>When a jury is waived and issues of fact submitted to the court, the finding of fact made by the trial court upon conflicting testimony will not be reversed where there is testimony reasonably tending to support such findings.</p> <p>2. Compromise and Settlement — Requisites of Compromise.</p> <p>A compromise is an agreement between one or more persons who, to avoid a lawsuit, amicably settle their differences on such terms as they can agree on. It is essential to a compromise that there be mutual concessions or yielding of opposing claims.</p> <p>3. Attorney and Client — Denial of Attorney’s Lien.</p> <p>Record examined, and held that section 4102, Comp. Stat. 1921, relating to attorney’s lien, is not applicable to the facts disclosed by the record in this case.</p> <p>(Syllabus by Pinkham, C.)</p>

<p>Appeal and Error — Absence of Answer Brief —Review.</p> <p>Where plaintiff in eivor files' his brief in this court as required by rule 7 of this court, and the defendant in error fails to file briefs and assigns no reason for such failure, this court is not required to search the record to find some theory upon which the judgment of the trial court may be affirmed.</p> <p>(Syllabus by Pinkham, C.)</p>

<p>Commissioners’ Opinion, Division No. 4.</p> <p>Error from District Court, Oklahoma County; James I. Phelps, Judge.</p> <p>Action by Martha E. Langford against X. N. Phillips, J. L. Jones, J. R. W. Pegues, Mary E. Tatum, and Tom Tatum, for possession of and to quiet title to- certain real estate; and for rents and profits. Judgment for defendants, and plaintiff appeals.</p>

Commissioners’ Opinion, Division No. 4. Error from District Court, Wagoner County; Guy E. Nelson, Judge. Action by Jimmy Harrison, Ellen Cooper, and Lizzie Franks against Russell I. Bilby, Nicholas v. Bilby et al., for possession of land and for damages for unlawful detention. Judgment for Jimmy Harrison for possession of an undivided one-third interest in the land in controversy. Defendants Russell I. Bilby and Nicholas Y. Bilby appeal.

<p>Commissioners’ Opinion, Division No. 4.</p> <p>Error from District Court, Oklahoma County; Edw. Dewes Oldfield, Judge.</p> <p>Action by Grant-Sprague Lumber Company, a corporation, against the First National Bank of Drumright, Okla., et al. the possession of one automobile. Judgment for defendants. Plaintiff brings error.</p>

Commissioners’ Opinion, Division No. 4. Error from District Court, Carter County; B. C. Logsdon, Judge. Action by John L. Frymyer et al. against the Kaw Boiler Works, a corporation, and Chickasaw Refining Company, a corporation, .for wrongful death. Judgment for plaintiff, and for Chickasaw Refining Company. Defendant Kaw Boiler Works brings error.

<p>Commissioners’ Opinion, Division No. 3.</p> <p>Error from District Court, Rogers County; C. H. Baskin, Judge.</p> <p>Action by Sumner Coal Mining Company against Caroline Ravenscraft and others. From the judgment, the above named defendant appeals.</p>

Commissioners’ Opinion, Division No. 4 Error from District Court, Mayes County: A. C. Brewster, Judge.

<p>Commissioners’ Opinion, Division No. 5.</p> <p>Error from District Court, Coal County; J. H. Linebaugh, Judge. '■</p> <p>Action by W. L. Nettles against Chas. Carson and others. From judgment in favor of the plaintiff, defendants bring error.</p>

<p>Commissioners’ Opinion, Division No. 1.</p> <p>Error from Superior Court, Pottawatomie County; Leander G. Pitman, Judge.</p> <p>Action by C. P. Jackson against Mrs. N, C. Wilkins. Judgment for plaintiff, and defendant appeals.</p>

Commissioners’ Opinion, Division No. 1. Error from District Court. Cotton County; Thomas A. Edwards, Assigned Judge. This proceeding was commenced in the District Court of Cotton County by appeal from the ruling of the Board of Equalization of Cotton County refusing to allow any deductions from the assessed valuation of the shares of stock of the Walters National Bank for the year 1923.

Commissioners’ Opinion, Division No. 5. Error from District Court, Beaver County; Arthur ©. Sutton, Judge. Action by Ferdinand P. Kline and wife against Frederick Kollman, to have a deed declared a mortgage. Judgment for defendant and plaintiffs appeal.

<p>Commissioners’ Opinion, Division No. 1,</p> <p>Error from District Court, Washita County ; Thomas A. Edwards, Judge-</p> <p>Action by Grant Kerr against N. W. Smith to recover damages for breach of contract to convey- real estate. Judgment for plaintiff, and defendant brings error.</p> <p>In -June, 1920, N- W- Smith entered into a contract with Grant Kerr by the terms of which Smith agreed and bound himself to convey to Kerr by deed of general warranty a certain quarter section of land, reserving to himself in such contract an undivided one-half interest in the oil, gas, and other minerals under said land. Kerr paid $500 on the purchase price at the time of the execution of the contract, the remainder of the purchase price to be paid upon delivery of deed and abstract to a certain bank not later than August 1 of that year. A deed was tendered pursuant to said contract which was not signed by ffmith's wife. Upon his attention being called to this, the deed was properly executed and acknowledged by’ both Smith and his wife’ and tendered to Kerr, who refused to accept the same upon the ground that the clause in the deed which was tendered excepting the oil, gas, and minerals was broader and more comprehensive in its terms than the exception clause contained in the original contract between the parties. Thereafter, on October 19, 1920, this action was commenced - to recover damages alleged to have been suffered by Kerr by reason of the alleged breach of contract by Smith. Upon trial, in the district court judgment was rendered in favor of the plaintiff fdr the sum of $650’ as damages, $500 on the purchase price- originally paid by Kerr, and certain expenses shown to have’been paid by Kerr pending this transaction between the parties’. After unsuccessful motion for new trial, defendant has brought the case here by petition in error with case-made attached for review. The parties will be hereafter referred to as plaintiff and defendant,' respectively, as they appeared in the trial’court.</p>

Commissioners’ Opinion, Division No. 5. Error from District Court, Garvin County; W. L. Eagleton, Judge. Action by B. E. Simmons against the Chicago, Rock Island & Pacific Railway Company to recover damages for negligent delay in the transportation of a shipment of livestock. Judgment for plaintiff, and defendant brings error.

<p>Appeal and Error — Absence of Answer Brief —Review.</p> <p>Where plaintiff in qfror files his brief in this court as required by rule 7 (87 Okla. xx. 215 Pac. vii) of this court, and the defendant in error fails to file briefs and assigns no reason for such failure, this court is not required to search the record to find some theory upon which the judgment of the trial court may be affirmed.</p> <p>(Syllabus by Pinkham,- C.)</p>