Volume 20 — Oklahoma Reports

Application by tlie city of Oklahoma City for writ of mandamus to the Oklahoma Railway Company, compelling performance of public service in accordance with terms of street railway franchise. .The relator is a municipal corporation and a city of the first class under the laws of the state of Oklahoma, and has been since the 1st day of January, A. D. 1902.

<p>Okla. T.</p> <p>Application of Daniel W. Harding for writ of mandamus to M. C. Garber, judge of the district court of Garfield county, to control judicial action.</p> <p>Relator’s petition, after omitting caption and exhibits, is:</p> <p>“The relator, Daniel W. Harding, represents and shows to this court: That on, to wit, the-day of-, 1896, one John Romig held a mortgage on the east half of the northeast quarter of section eighteen (18), in township twenty-two (22) north, of range six (6) west of the Indian meridian, in Garfield county, Oída. T. That the apparent legal title to said land was at the time in one Myrtle Gillett. That said mortgage became in default, and said Romig brought suit to foreclose said mortgage in the district court of Garfield county, Okla. T., and cause proper service by publication to be made on Myrtle Gillett, the apparent owner of said land. That said Romig obtained judgment in said court foreclosing his said mortgage. That said land was sold under the judgment of said court to said John Romig, and the sale duly confirmed, and sheriff’s deed executed and recorded, and said Romig then went into possession of said land. That the record of all said proceedings in said court are regular. . That thereafter John Romig sold and conveyed said land to the relator, Daniel W. Harding, who immediately went into pos•session of said land, and has continued in absolute ’and exclusive possession of said land down to the date of filing this application. That this relator bought said land, relying upon the record in said cause, and without any knowledge of adverse claims to said lands, based upon any matters dehors the record in said cause, and this applicant paid full value for said land in good faith, and has. since entering the possession of said land, permanently improved the same, paid taxes, effected insurance and repairs amounting in the aggregate to over $7,000. That afterwards, and during the year 1898, Myrtle Gillett appeared in said district court and filed her motion in the cause of Romig v. Myrtle Gillett (in which the mortgage was foreclosed, and the land sold to Romig as aforesaid) to set aside foreclosure, judgment, and all proceedings had thereunder, for the alleged reason that the said 'judgment was void because she, as defendant in said action, was a resident of Oklahoma at the time service by publication was obtained on her in said action as a nonresident. That upon said motion said court entered an order • setting aside foreclosure, judgment, and all proceedings bad thereunder, and ordered this applicant forthwith dispossessed from said land because said court held said judgment was void. That this applicant duly appealed from said order to the Supreme Court of Oklahoma, and that court, on consideration of said appeal, affirmed the order of the lower court in all things. That from the decision of said Supreme Court this applicant appealed to the Supreme Court of the "United States, and that court, in the month of November, A. D. 1902, upon consideration of the appeal of this applicant, reversed the judgment of the Supreme Court of Oklahoma in words and figures as follows, to wit: ‘The decision of the Supreme Court of Oklahoma will be reversed, and the cause remanded to that court, with instructions to set aside the order of the trial court, and to direct the entry of one which without disturbing the possession of Harding will give to the appellee the right to appear, plead, and make such defense as under the facts of the case and the principles of equity she is entitled to.5 A full and complete copy of said mandate is hereto attached as Exhibit A, and made part hereof. That upon said.mandate this court issued its mandate to the trial court, to wit: The district court of Garfield county, Oída. T., directing said trial court to set aside the judgment in foreclosure, and to enter an order allowing Myrtle Gillett to appear, plead, and make such defense as under the facts of the ease and the principles of equity she may be entitled, ‘and that the possession of Daniel W. Harding to the land in controversy be not disturbed, pending said proceedings, and that his rights and interests in the premises be determined in said cause.5 A full and complete copy of said mandate is hereto attached, and made a part hereof, -marked ‘Exhibit B.5 That upon said mandate the district court entered its order allowing Myrtle Gillett to plead. A copy of said order is hereto attached and made part hereof as Exhibit C. That in pursuance of said order Myrtle Gillett appeared in said court and filed her pleading, alleging that she had sold all her interest in the land to George P. Rush and Bruce Sanders, and that her only interest in the matter was a vendor’s lien of $250. That Rush & Sanders held the equity of redemption in and to said land; asked that they be made parties; asked that an accounting be taken of the rents and profits received by Harding, and that they be applied on the payment of the mortgage of Romig; alleged that Harding was a mortgagee in possession. Rush and Sanders filed a motion to be made parties. This motion the lower court overruled. This applicant and John Romig each moved for judgment on the pleadings, and the lower court sustained said motions. A copy of said judgment is hereto attached, and made part hereof as Exhibit D. That thereafter Myrtle Gillett appealed from said judgment to the Supreme Court of Oklahoma, and that court reversed the judgment of the lower court, rendering judgment on the pleadings, and to make Rush & Sanders parties, and to proceed further in accordance with said opinion. That from this judgment -of the Supreme Court of Oklahoma this applicant appealed to the Supreme Court of the United States, and said court dismissed said appeal because the decision of the Supreme Court of Oklahoma was not a final decision, and did not fix the substantial law of the case. That the mandate of the Supreme Court of Oklahoma, based on the order of the United States Supreme Court dismissing the appeal of this applicant, was filed in the district court of Garfield county, Oklahoma, on or about the 31st day of May, 1907. That said cause now stands for trial under the several mandates of the Supreme Courts. That no judgment has ever been rendered in said cause on the pleadings of Myrtle Gillett or her grantees, Rush & Sanders, nor has any accounting ever been taken or any trial had, nor has said cause ever been set for trial. That notwithstanding these facts the said George P. Rush and Bruce Sanders gave this applicant notice that they would present their application for the appointment of a receiver in said cause to take possession of said land and collect the rents and profits thereof, to preserve the same pending the trial. That said application for a receiver was presented to Hon. M. C. Garber, judge of said court, on the 10th day of June, 1907, upon the said application for a receiver, and the answer of the relator to said application, and the demurrer of- said applicants to all that portion of relator’s answer which pleaded and set out the mandate of the Supreme Court of the United States, and the mandate of this court, to the effect that relator’s possession should not be-' disturbed pending the trial.</p> <p>“Relator alleges that said Judge M. C. Garber sustained a demurrer to his plea that said mandate protected him in his possession until after said trial, and refused to consider said mandates. Relator further says that the further hearing of said application was by said judge continued until June 20, 1907, and on said date said judge did appoint a receiver in this- cause to take possession of said land and collect the rents and profits thereof (a certified copy of said order is hereto attached as Exhibit E) and your relator alleges that unless this court grants a writ of mandamus to compel said judge to obey said mandates, and desist from disturbing the' possession of this relator pending the trial in this cause, said judge will enforce the appointment of said receiver, and dispossess this relator, based on his decision that said-mandates do not prohibit him from appointing a receiver and taking possession of said land pending said hearing. Your relator alleges that he has no adequate remedy at law by which he can compel said lower court to obey said mandates; but relator alleges that a receiver has been appointed in violation of said mandates, and he has no other remedy than by the mandate of this court, enforcing its mandate.</p> <p>“Wherefore applicant prays that a peremptory writ of mandamus issue, directed to lion. M. C. G-arber, compelling him to obey the mandate of this court, and not disturb the possession , of the applicant by appointing a receiver or otherwise, and to vacate the order appointing said receiver, and all proper relief.”</p> <p>To relator’s petition respondent interposed a general demurrer, and upon relator’s petition and respondent’s demurrer the case is submitted to this court.</p> <p>It is necessary to an understanding of this action that a brief history of the litigation out of which it lias grown be given. This action grows out of a suit brought in the district court of Garfield county on the 11th day of March, 1896, by John Romig against Don A. Gillett and Myrtle Gillet, to recover a judgment against Don A. Gillett for $749, with interest and attorney’s fees, and to foreclose a certain mortgage, executed by Don A. Gil-lett to John Romig upon real estate situated in Garfield county, Okla., to secure said indebtedness. On the 18th day of December, 1896, judgment was rendered by the court in favor of John Romig for the amount sued for and foreclosing the mortgage. Sale of the land was afterwards made under the decree of foreclosure, and confirmed by the court. At the sale John Romig, the plaintiff in the action, and the-mortgagee under the mortgage foreclosed, became the purchaser of the land involved. On the 9th day of March, 1897, John Ronrig sold said premises to Daniel W. Harding, the relator in this action. Subsequently, on the 17th day of March, 1898, Myrtle Gillett filed her motion to set aside the judgment and decree of foreclosure upon different grounds, which are not necessary to be repeated here. The court sustained the motion of Myrtle Gillett to vacate the judgment of foreclosure and order her restored to the possession of the premises of which she had been wrongfully dispossessed. From this judgment plaintiffs Ronrig and Harding appealed to the Supreme Court of Oklahoma Territory. The Supreme Court of Oklahoma affirmed the judgment of the trial court. John Bomig and Daniel W. Harding v. Myrtle Gillett, 10 Okla. 186, 62 Pac. 805. From this judgment Ronrig and Harding appealed to the Supreme Court of the United States. The Supreme Court of the United States reversed the decree of the Supreme Court of Oklahoma, and remanded the case to that court, with directions to set aside the order of the trial court, and to direct the entry of an order which, without disturbing the possession of Harding, would give the appellee Myrtle Gillett the right to appear, plead, and make such defense as under the facts of the case and the principles of equity she was entitled to. John Bomig and Darnel W. Harding v. Myrtle Gillett, 187 U. S. Ill, 23 Sup. Ct. 40, 47 L. Ed. 97. A mandate was issued from the Supreme Court of the United States to the Supreme Court of Oklahoma, in obedience to which the Supreme Court of Oklahoma issued its mandates to the district court of Garfield county. Certified copies of these mandates are attached as exhibits to relator’s petition in this action, and contain respectively the language quoted in relator’s petition.</p> <p>The district court of Garfield county, with James K. Beau-champ sitting as judge, in obedience to the mandate of the Supreme Court of Oklahoma, on the 1st day of June, 1903, made an order vacating and setting aside the judgment and decree of foreclosure made in the case bjr that court on the 18th day of December, 1896, and permitting Myrtle Gillett to appear, plead, and defend. A copy of this order is attached to relator’s peti tion in this action. On December 1, 1903, Myrtle Gillett entered her appearance in the original action in the district court of Garfield county, and filed an answer and cross-petition. Subsequently Daniel W. Harding, the grantee of Romig, filed an answer on cross-petition to the answer and cross-petition of Myrtle Gillett. After various answers and cross-petitions and replies thereto had been filed, Romig and Harding moved the court for judgment on the pleadings, which motion was by the court sustained, and the decree of foreclosure rendered by that court on the 18th day of December, 1896, in favor of Romig against the Gilletts, was reinstated, confirmed, and ratified. This judgment on the appeal of Myrtle Gillett to the Supreme Court of Oklahoma was reversed. Gillet v. Romig et al., 17 Olda. 324, 87 Pac. 325 From this judgment of the Supreme Court of Oklahoma appeal was taken by Romig and Harding to the Supreme Court of the Hnited States which appeal was dismissed by that court.</p> <p>George P. Rush and Bruce Sanders, who had become the grantees of Myrtle Gillett, and who had become interpleaders in the original action pending in the district court of Garfield county on the 10th day of June, 1907, made application to the respondent in this action for an order appointing a receiver in said action to take charge of the land in controversy, and collect the rents and profits therefrom. On the 20th day of June, 1907, respondent, as judge of the district court of Garfield county, granted the application, and made an order appointing a receiver as prayed for.</p> <p>Relator alleges that under the language of the Supreme Court of the Hnited States, quoted in his petition as follows: “The decision of the Supreme Court of Oklahoma will be reversed, and the case remanded to that court with instructions to set aside the order of the trial court, and to direct the entry of one, which, without disturbing the possession of Harding, will give to the appellee the right to appear, plead, and make such defense as under the facts in the case and the principles of equity she is entitled to,” and under the language of the mandate of the Supreme Court of Oklahoma quoted in his petition as follows: “ * * * and that the possession of Daniel W. Harding to the land in controversy be not disturbed pending said proceedings, and that his rights and interests be determined in said cause” — ■ the respondent was without jurisdiction to/make the order made by him on the 20th day of June, 1907, appointing a receiver, and that said order is in violation of the mandates of the Supreme Court of Oklahoma, and of the Supreme Court of the United States.</p>

Application of Toney Matney for writ of mandamus to John H. King, judge of the district court of Muskogee county, to compel him to recognize relator as district clerk and to deliver to him the records of that office.

Original application for mandamus by Charles PI. Eberle against John H. King, judge of the district court of Muskogee county, to compel him to recognize relator as register of deeds and to deliver to him the records of that office.

<p>Application by Bemns B. Eamsey for writ of mandamus' to John H. King, judge of the district court of Muskogee county.</p>

Okla. T. Error from the District Court, Logan County; before J. L. Pan-coast, Judge. Action by the Blaine County Bank against George 0. Eankin, receiver of the Capitol National Bank of Guthrie. Judgment for plaintiff, and defendant brings error.

Okla. T. Error from District Court, Kay County; before Bayard T. Hainer, Judge. Action by O. Ií. P. Moore and others against George Alberti to foreclose mechanics’ lien. Judgment for plaintiffs, and defendant brings error. This is an action brought in the district court of Kay County, Okla. T., for the purpose of foreclosing a mechanics’ lien on lot 13, in block 33, in the town of Newkirk, Okla., property of George Alberti, plaintiff in error.

<p>Okla. T.</p> <p> Error from the District Court, Canadian County; before C. F. Irwin, Judge. </p> <p>Action by Will Carlton Bickford against John A. Goodwin and others. Judgment for ‘plaintiff. Defendants bring error.</p> <p>On July 1, 1903, the defendant in error filed his petition in the probate court of Canadian county,' alleging, among other things, that he is the adopted son and only heir at law of Mary E. Iiortop, who died on or about the 7th day of April, 1903, and that he is entitled to letters of administration upon her estate, and praying that such letters be issued to him. On the 2d day of July, 1903, John A. Goodwin, one of the plaintiffs in- error, filed his petition in the probate court of Canadian county, alleging, among other things, the death of Mary E. Hortop, and that Cynthia Rosenberger, Emma J. Masters, Nellie C. Bickford, Mrs. ,E. Carson Mason, James Dexter, and Mrs.-Walker are heirs at law of the decedent, and praying that letters of administration on the said intestate estate be issued to him. On the 14th day of July, 1903, the two petitions were heard together, and the court adjudged the defendant in error to be the adopted son of Mary E. Hortop, granted the prayer of the petition, appointed him administrator of the estate, and ordered the letters of administration thereon issued to him accordingly.</p> <p>Thereupon the plaintiff in error appealed to the district court of that county. Afterwards, on August 25, 1903, the defendant in error filed a motion to dismiss the appeal of plaintiff in the district court, and assigned as his reasons therefor six grounds. On December 1, 1903, the court granted plaintiff leave to file a new and sufficient appeal bond. On December 4, following, plaintiff filed an affidavit in support of their motion resisting the motion to dismiss the appeal, and time to file a counter affidavit was extended until December 9th. On December 9th, as shown by the journal entry, the appeal was dismissed “for failure of the plaintiff to properly perfect his appeal by compliance with rule 14 of this court.”</p> <p>Plaintiffs in error come to this court by petition in error on transcript.</p>

<p>Okla. T.</p> <p> Error from the District Gowt, Comanche County; before Frank E. Gillette, Judge. </p> <p>Action by Alva Groves against the Chicago, Rock Island & Pacific Railway Company for damages due to the overflow of land, caused by the negligent construction of defendant’s roadbed. Judgment for plaintiff, and defendant brings error.</p> <p>On the 17th day of February, 1903, Alva Groves, the herein defendant in error, as plaintiff, commenced an action in the probate court of Comanche county, in the territory of Oklahoma. Afterwards, on the 18th day of April, 1903, plaintiff filed his amended petition, and on the same day the plaintiff in error, the defendant in the court below, filed his answer, which was a denial of each and every allegation, except that the defendant was a corporation. The case was tried in the probate court, and resulted in a judgment for the plaintiff, and was appealed to the district court-. Thereafter, on the 21st day of October, 1904, the ease was tried, and a judgment resulted in favor of the plaintiff for the sum of $443.75.</p> <p>For cause of action the plaintiff's petition consisted of three paragraphs or counts. In the first count he alleged: That the defendant constructed a line of railway .across his homestead in the month of May, 1902, and in constructing it threw up an embankment on said land “in crossing a draw or ravine thereon, which draw or 'ravine was in a natural water course created by the flow of surface water caused by the fall of rain in that community, and was and is the natural outlet for such water.” That defendant in constructing said embankment failed to make a suf- • ficient. provision for the outlet of the ;water that might reasonably accumulate in ■ said draw or ravine, but put in a small tiling, wholly insufficient to carry off said water, and that it accumulates about the track of said defendant after each heavy rain, and stands upon and covers for some length of time about 35 acres of plaintiff's land, killing all vegetation and making said amount of land valueless. He further alleged that the same was good agricultural land, and worth $11.25 per acre, or a total value of $393.75. That prior to the construction of’ said embankment said water course was unobstructed, and water did not stand upon said land, but naturally flowed off; and plaintiff alleges, as a result of said obstruction, the destruction of the whole value of said land, in the sum of $393.75. In the second count the same facts are alleged with reference to the building of the road, the obstruction of the ravine, the accumulation of the water, and the rendering of the land valueless, with the additional allegation that the said 35 acres of land rendered valueless extended in a strip almost the entire width of his homestead, thereby dividing the remainder of his homestead or claim in two parts, and damaging ■ the balance of the homestead independent of the 35 acres which were absolutely rendered valueless, in tbe sum of $200 additional. In the third count substantially the same allegations are made with reference to- the construction of the road and the obstruction of the ravine, with the further allegation that on the 21st day of September the wafer which came down the draw or ravine was caused, on account of this construction of said embankment with insufficient outlet, to stand above the embankment, Hooding 35 acres of ''he land to such an extent as to flow in his residence, a half dugout, a depth of four feet or thereabout, damaging the dugout to the value, of $40, household goods to the value of $10, and wearing apparel to the value of $20, carrying away wood and posts to the value of $4, two saddles and three sets of harness to- the value of $30, and injuring his well to the value of $50; also claiming damage to his pasture to the amount of $150, and causing the necessity of moving his feime, to his damage in the sum of $50. Plaintiff: therein prayed judgment in the total sum of $947.45.</p> <p>On the trial the plaintiff! withdrew his claim for damages to the pasture, and limited his claim for damages from the overflow in September, 1902. The defendant on the trial admitted that the railroad company constructed the line or lines mentioned in the petition, and that it was, at the time of the trial, owned and operated by said railway corporation. On the part of the plaintiff, without objection on the part of defendant in error, he testified in his behalf that at the time of the institution of said action he was the owner of said land; that he, having homesteaded the same, had lived on the place ever since the 6th day of September after the opening, which -was in August, 1901. On cross-examination plaintiff testified that he entered and filed on- said quarter section of land under the homestead laws, and that he had proved up his claim. He further stated that he could not tell the date of his filing, but his best recollection was it was the 6th of September, 1901, and, further, that he had made no.conveyance or mortgage to the same prior to the time of the alleged damage in 1902. It was admitted that plaintiff made no conveyance whatever to the railway company, but that the railway acquired right of way prior to plaintiff’s homestead entry, and that the railroad embankment was constructed after plaintiff filed and entered upon said land. The testimony, of plaintiff tended to show that the defendant’s road and the embankment were constructed about May, 1902; that there were heavy rains, equal to the September, 1902, rain, causing the overflow in question, prior to the time of the construction of said embankment, but that the same, prior to the construction, did not flood or overflow the said land; that the embankment was 13 or 14 feet high and about 200 yards long, practically the entire width of the homestead; that the distance ffcom said embankment to the head of said creek or ravine is about 3% miles; that, after the overflow had reached to the channel, said ravine would run for several days; that the creek below the said road was something like it was above; that below the same the water spread out over the flat lands; that where they scraped dirt to make a fill the water was run around through the fill and on over a little bottom to the section line, the outside line of plaintiff’s land; that, as a result of said overflows as a result of said embankment, said 35 or 40 acres had been rendered valueless- for farming and grazing purposes; that for such purposes it formerly had a value ranging from $11.25 to $15 per acre; that said house or dugout was damaged in the sum of $40, household goods, $10, wearing apparel, $20, bridles, harness, and saddle, $21, and well in the sum of $50. The evidence on the part of the plaintiff tended to show that the tiling or sewer w-as not of such a size as might have reasonably been considered sufficient to carry off the volume of water that might naturally have been anticipated at time to flow through Snake creek or this ravine.</p> <p>The testimony on the part of plaintiff as to the stream in question is as follows:</p> <p>“Q. State whether or not there is any water course or ravine running through that land. A. Yes, sir; there is. Q. Has it any name? A. Yes, sir; called ‘Snake Creek.’ * * * Q. Describe to the jury the nature of that ravine there, as to banks, how far from one bank to the other, and about the nature of the channel. A. Well, the channel some places is cut out deep and broad, and runs crooked, and it will go right across after it strikes a rocky place, and finally there will not be any channel there for a little ways. Q. State if there is any natural reason why it has not worn a channel in all the places. A. It is because the creek bed is crooked, and there is rock there, and when it reaches that rock it shoots right across. Q. Plow far is it to the head of this creek, or what is the lay of the land where it drains the water into the creek? A. It is about 3 miles — I mean to the head of the creek. Q. About 3 miles to the head of the creek? A. It drains about 3% miles — I don’t know.exactly — • right across there. Q. You may state the distance of the drain on either side of the channel. A. On the west side about a mile and a half a little northwest, and on the east about a mile and a half north and east. Q. State whether or not you lived there on this land prior to the construction of this railroad across it. A. Yes, sir; I did. Q. State whether or not, during the time you lived there, or prior to the construction of this road, there were any heavy rains. A. Yes, sir; lots of them. Q. State whether or not these rains overflowed 3'our land. A. No, sir; nothing to amount to anything at all. Q. State whether or not, prior to the month of September, 1902, there were any rains. A. Yes, sir. Q. State what effect it had on your land, as to whether it flooded. A. Yes, sir; flooded about 35 acres. * * * Q. How deep is that creek? A. Some places it is over waist deep, and some places it is shallow. Q. Is it running now? A. No, sir. Q. How much of the time does it run? A. It don’t run very much at a time. Q. Just after rains? A. Yes, sir; when it does run, it will probably run for a week or such a matter. I could not say exactly how long it does run. Q. Did you ever know it to run a week? A. Yes, sir. Q. That was a week when it had been raining a week ? A. It had been raining some. Q. Rained for several da3^s? A. Yes, sir; it rained quite a bit. Q. Where does the water come from that comes down that ravine ? A.. Part of it shoots down from the west side, and part of it from the east. Q. Is there not a little slough there in your land where the water stands? A. You mean Snake creek? Q. Yes, sir. A Yes, sir; there is water standing there in Snake creek. Q. A little water hole? A. Pretty good-sized water hole; lasts the year around. Q. Did you ever see it last the year around?. A. It lasts the year around. * * * Q. Did you ever make a measurement of the height or depth of the creek? A. Do you mean how deep the creek is? Q. Did you ever actually measure that creek with a yard-stick or tapeline ? A. No, sir. Q. Did you ever measure it with anything that was intended to measure height or distance A. No, sir; never measured it. Q. The creek has no channel all the way? I understood you to say it washes out the soil in some places where it is soft, and made little holes where it runs over ? A. In some places there is a channel, and in some places there is not.”</p> <p>J. A. Vanderford, on the part of plaintiff, among other things, testified:</p> <p>“Q. Is that creek straight or crooked? A. It is crooked. Q. Is that water course through there natural or artificial? A. It is a natural water course. * * * Q. You speak of pools of water along that ravine or depression there on plaintiff’s land. How many pools of water are there there? A. I never counted them. Q. When was you there last? A. About a month ago. Q. Was water running then? A. No, sir. Q. Have you seen it since a month ago? A. No, sir. *. * * Q. Well, now, do you know of any pools of water along there, except the one down close to the railroad track? A. Yes, sir; I know in particular of three. Q. When were they there? A. They were there about— I believe it is one year since I have been along there. Q. You say they were there a year ago? A. Yes, sir. Q. Was there any running water there at that time? A. No; not at that time. Q. How long since had thfere been any running water there at that time? A. That was sort of dry spell. I could not say just how long. Q. Is that a live stream that goes down through there? A. No, sir; I don’t consider it a live stream. Q. When does the water run down there ? A. After heavy rains. Q. Does the water that falls in that scope of country drain down through there? A. Yes, sir.”</p> <p>■ D. J. McCoy, on the part of defendant, testifies in part as follows:</p> <p>“Q. What is the character, or what are the surface features, of plaintiff’s land? A. When I first saw his land it was rolling prairie draining from tbe west side gently toward the depression. Q. And how was the slope to the east of the depression? A. To the east of the depression on another gentle slant about the same way. Q. Describe that depression. A. It was a natural depression in the ground. I should call it a ravine. Taking clear across, it was an average of about 400 feet wide. There are no marked banks to this, or any known channel, otherwise than a few pockets of water, pools, and puddles. Q. You say there are no banks? A. Nothing I should call that. Q. How does the land lie? Does it slope from the lowest point out? A. No, sir; you might say that, in the lowest line of it, which is' about 400 feet wide, that is just a wide slough — the way I would call it — or a ravine. Q. At the time of the construction of the railroad did the water stand in that slough? A. Yes, sir. Q. To what depth? A. We drove our teams into the middle-sometimes; and the water never did at any time come over the hub. Q. How long was that slough ? A. I should judge it was about 500 feet. Q. Were there any abrupt banks to it? A. No, sir. Q. How were the edges? A. The edges looked like the banks had simply broke away, and it had got into softer ground underneath. Q. How was the slope or riso or fall of the land from the outer edges of the slough each way? A. Gradual. Q. Now, between these banks iof the slough, what was the formation? A. It seemed to be just the usual formation of the land; never noticed anything different. Q. Was there any channel there? A. No, sir Q. By what were those banks made? How were they formed ? A. I couldn’t say. All I know was that they appeared to me to be natural, or the water at some time had started a place under .the grass roots. Q. How wide were these places? A. No more than 25 feet. Q. Any living water there? A. No, sir. Q. Any springs you know of ? A. None that I know of. Q. What was between these banks you speak of (meaning banks of the pools) ? Was there any channel? A. No channel at all; just natural ground and grass. Q. What was the character of the lowest place in there between those banks? A. Just seemed to be natural soil such as we found in building the dam. Q. Did you find it changed in that respect when you examined it after the flood? A. No, sir.”</p> <p>At the close of taking testimony in the case the defendant moved the court for an order to the jury to return a- verdict in its favor. Said motion was taken under advisement, and the record fails to show that it was ever ruled upon by the court, or that any exception was taken in regard to said motion whatever.</p> <p>The following instruction, among others, was given to the jury:</p> <p>“No. 3: The jury are instructed that, under the laws of this territory, ‘every corporation, constructing, owning, or using a railroad shall restore every stream of water, watercourse, street, highway, plank road, toll or wagon road, turnpike, or canal, across along, or upon which said railroad may be constructed, to its former state, or to such conditions that its usefulness shall not be materially impaired, and thereafter maintain the same in such condition, against any effect in any manner produced by such railroad/ The provision of our statute here quoted is mandatory in its terms, and the failure to comply therewith in the construction of a line of railroad renders the person or corporation so failing liable to damages to any person injured by reason of such failure.”</p> <p>The plaintiff in error relies upon the following assignments or errors; (3) “That the court'erred in refusing the peremptory instruction offered by plaintiff in error.” (1) “That the evidence was insufficient to entitle the plaintiff to recover, for the reason that he did not show the existence of a watercourse or waterway.” (3) “That the court erred in its instruction defining a watercourse.” (4) “That the court erred in its instructions in assuming the existence of facts which were in issue.” (5) “That the court erred in directing the consideration of the jury to overflow subsequent to the alleged overflow of September 3, 1903.” (6) “That the court erred in instruction No 8, by submitting improper elements of damage.” (7) “That the court erred in admitting incompetent evidence to show damage by the alleged destruction of the well.” (8) “That the court erred in submitting to the jury the question of the amount of damages to land caused by the overflow/*’ (9) “That by reason of the errors above enumerated the court erred in refusing to grant the plaintiff in error a new trial.”</p>

Okla. T. Error from District Court, Kiowa County; before F. E. Gillette, Judge. T A. Abbott was convicted of shooting with intent to kill, and brings error. Plaintiff in error was indicted, tried, and convicted of the crime of shooting with intent to kill, and sentenced to serve a term of 18 months in the territorial prison. From this judgment he appeals.

<p>Petition of Jim Cain for writ of habeas corpus.</p>

Okla. T. Error from the District Court, Garfield County; before James K. Beauchamp, Judge. Action by T. & H. Smith & Co. against Prank Thesmann on agreement of guaranty. Judgment for defendant and plaintiff brings error.

<p>1. CHAMPE.RTY AND iMAfNTE NANCE — Offenses—Statutes!—Implied Repeal — Transfer of Land. Section 2026, St. Okla. 1893, making a misdemeanor the buying or selling of any pretended right or title to lands where the grantor or those by whom he claims have not been in possession or taken the rents and profits thereof for the space of one year before such conveyance is not repealed by sections 1, 17, or 46, of the Act of 1897, pp. 92, S.5, 10’2, c. 8, entitled “Real Estates Conveyances, Mortgages and Contracts;” it not being repugnant thereto, by reason of not coming within the scope, purpose, or purview of the latter act.</p> <p>'2.- SAME — Grants of Land Held Adversely — Effect. A conveyance of land made in contravention of the provisions of section 2026, St. Okla. 1893, by the rightful owner is utterly void as against the person holding adversely claiming to be the owner thereof 'under color of title, but as between the parties and all the rest of the world it is good, and passes the grantor’s title.</p> <p>(Syllabus by the Court.)</p>

Okla. T. Error from District Court, Comanche County; before Frank E Gillette, Judge. Action by the Wichita Mining & Improvement Company, consolidated, against J. M. Hale and Bessie Hale. Judgment for de--fendants, and plaintiff buings error.

<p> Original Proceeding in Habeas Corpus. </p> <p>Application of John F. Thomas and Will Thomas for writ of habeas corpus.</p>

Ind. T. Error from the United States Court for the Southern District of the Indian Territory; before Hosea Townsend, Judge. Action by the National Live Stock Commission Company and R. H. McNatt, trustee; against W. N. Taliaferro and D. B. Talia-ferro. Judgment for defendants, and plaintiffs appeal.

<p>Okla. T.</p> <p> Error from District Court, Oklahoma County; before B. F. Bur-well, Judge. </p> <p>Action by A. 0.. Campbell and Emily Culbertson against N. S. Sherman. Judgment for defendant, and plaintiffs bring error.</p>

Okla. T. Error from District Court, Canadian County; before C. F. Irwin, Judge. Action by the Tinkelpaxigh-Kimmel Hardware Company against the Minneapolis Threshing Machine Company. Judgment for defendant, and plaintiff brings error.

Ind. T. Appeal from■ the United States Court for the Southern District of the Indian Territory, at Tishomingo; before Rosea Townsend, Judge. Action by Mosley Keel against the Few York Life Insurance Company. Judgment for defendant, and plaintiff appeals.

Ind. T. Error from United States Court for the Western District of the Indian Territory, at Wagoner; before Louis Sulzbacher, Judge. Action by Winnie Joslin against Amanda Leak and John Leak. Judgment for plaintiff, and defendants bring error. This action was instituted in the United States Court for the Western District of the Indian Territory at Wagoner on the 14-th day of October, A. D. 1904, and summons issued thereon, being a statutory action in the nature of ejectment.

Okla. T. Error from District Court, Blaine County; before James K. Beauchamp, Judge. Eeplevin by Maggie Sclunitt against A. j3. Bridgford, as sheriff, in which action E. B. Cockrell and another were made parties defendant. Judgment for plaintiff, and defendants bring error.

<p>Okla. T.</p> <p> Error from the District Court, Logan County; before Jno. H. Bur-ford, Judge. </p> <p>N. D. McGinley was convicted of embezzlement, and lie brings error.</p>

<p>Okla. T.</p> <p> Error from District Court, Oklahoma County; before B, F. Bur-well, Judge. </p> <p>Action by J. D. Cole against tbe Missouri, Kansas & Oklahoma Railroad Company. Judgment for defendant, and plaintiff brings error.</p>

Okla. T. Error from District Court, Oklahoma County; before C. F. Irwin, -Judge. Action by James A. Gamer against John E. Brooks and others. Held: and now hold, the same. (4) On June 8, 1893, said Price conveyed said lot by warranty deed to his sister, M. D. P. Scarborough, of Quincy, 111., which deed was filed for record March 13, 1895. After the execution of such deed Price- continued, in apparent control of said lot, to act as agent for his said sister.

Ind. T. Error from the United States-Court for the Northern District of the Indian Territory; before Wm. B. Lawrence, Judge. Replevin b^ R. A. Brown against Margery R. Fritz.

<p>Ind. T.</p> <p>Error from the United States Court for the Southern District of the Indian Territory at Pauls Talley; before Ilosea Townsend, Judge.</p> <p>Action on promissory note by the First National Bank of Pauls Yalley against Jennie Lee Williams and others. Judgment for plaintiff, and defendants bring error.</p> <p>On June 29, 1904, tbe First National Bank of Pauls Valle}'', Incl. T., defendant in error, plaintiff below, filed its complaint in an action at law in tbe United States Court in tbe Indian Territory, Southern District, at Pauls Valley, against tbe plaintiffs in ' error, defendants below, Jennie Lee Williams, S. L. Williams, and S. T. Williams, to recover on a certain promissory note of $5,000 made and delivered by plaintiffs in error, hereafter called defendants, to Susan E. Mays, on February 4, 1904, payable in 90 days, and by her indorsed to defendant in error, hereafter called plaintiff, for value. After much pleading on January 6, 1905, plaintiff filed its “first amended complaint,” to which defendants demurred, and, upon the same being overruled, filed a joint answer, and, upon a demurrer being sustained thereto, filed an “amended answer to first amended complaint.” On April 14, 1905, there was by plaintiff filed to this pleading a “demurrer to amended answer to first amended complaint,” which was sustained, and, upon defendants electing to stand on their answer, judgment was rendered for plaintiff and against defendants for $5,572, which judgment defendants have brought to this court for review by writ of error.</p>

<p>Okla. T.</p> <p> Error from District Court, Greer County; before C. F. Irwin, Judge. </p> <p>Action in replevin by D. E. Lollar against Joseph Nelson and and others. Judgment for plaintiff in the probate court, and defendants appeal to the district court. Erom a judgment dismissing the appeal, they bring error.</p> <p>On the 20th day of May, 1904, the defendant in error, 'as plaintiff, commenced his action in replevin against the plaintiffs in error, Joseph Nelson, sheriff of Greer county, and John S. Galloway, as defendants in the probate court of said county, to recover certain goods, wares, and merchandise levied upon by said sheriff by virtue of two writs of attachment issued out of said court in favor of said John S. Galloway, which goods, wares, and merchandise'were levied upon as the property-of one S. H. Zinn, the defendant in said writs of attachment.</p> <p>Thereafter, on the 16th day of March, 1905, said defendants appealed said cause to the district court of said county, and duly filed their appeal bond, which was duly approved by the court, and afterwards, on the 7th day of April, 1905, the transcript thereof was duly transmitted and ah the papers in said cause filed with the clerk of said court. Afterwards, on the 9th day of May, 1905, said plaintiff filed in said court a transcript of all the proceedings had in said cause in the probate court, and paid the costs that had accrued in said court, and thereupon filed his motion to dismiss said appeal on the ground that the appellants had failed to deposit with the clerk of said court the sum of $5 within SO days after the said transcript had reached the clerk thereof. Afterward, on the 11th day of May, 1905, said motion to dismiss was sustained; said order being in words and figures as follows:</p> <p>"And now the court, upon application of the appellee, dismisses this appeal and remands this cause to the court from whence it came for failure to comply with rule No. 14."</p> <p>Afterwards, on the same date, the defendants filed a motion to reinstate said cause, alleging as grounds therefor; First. That the court erred in dismissing same for the reason that plaintiffs had failed to -deposit with the clerk the sum of $5 within SO days from the time the papers reached the clerk’s office under the rule No. 14, as the statute did not authorize any such rule. Second. That the court erred in dismissing same, as the statute requires the clerk to file the papers and docket the cause when the same reach his office, and the law, governing appeals is that when the appellant files his appeal bond in the inferior court within the Lime prescribed by the statute the appeal is completed, and it does not take a deposit of $5 with the district clerk to complete it, the right to appeal from the inferior court being purely statutory and regulated by specific rules of procedure, and in no manner dependent upon rules that may be promulgated by one of the district judges, subject to change at any time. Third. . Because the amount involved in this case is something like $800, and the appellant will suffer great injury unless said cause is reinstated. Fourth. Because there is a matter of important statutory construction involved herein, the debtor, S. PL Zinn, having disposed of his entire stock of merchandise to plaintiff, D. F. Lollar, without first complying with the statute of 1903, requiring merchants, before disposing of their stock of merchandise in bulk and out of the usual course of trade, to first give their creditors 10 days’ notice of such proposed sale. Fifth. Because said cause was not assigned on the docket for trial, and was taken up at an adjourned term of court at which no civil cases were assigned for trial. Sixth. Because the appellants, defendants in the probate court, asked to be allowed to pay, at the time the motion was presented, the costs required to be deposited and to allow defendants to make such deposit would in no way delay the proceedings of the court, as said ease would not have been called for trial at this term, only criminal cases being set for trial, and, the issues being joined, to reinstate the cause will work no delay or injury to either party. And, ■ further, the defendants here now, with this motion, tender the costs required, and tender $5 in addition to cover not only the deposit, but also the costs paid by the appellee. Seventh. Because this appeal was agreed upon by the plaintiff and these defendants and their attorneys in .order to have the aforesaid statute of 1903 properly construed.</p> <p>Said rule No. 14 is in words and figures as follows:</p> <p>“ * * * Provided, further, in all cases appealed from a lower court to the district court of this district, the plaintiff shall, in twenty days from the time the papers in such appeal case shall have reached the office of the clerk of this court, deposit with such clerk the sum of five dollars to apply on costs of clerk in the district court, and appellee shall, prior to the first day of the next term of the district court of the county in which such appeal arose, deposit with the clerk for costs the sum of three dollars. No appeal shall be placed upon the docket of this court until the appellant shall have made the deposit herein provided for. Should the appellant fail to make deposit for costs as herein required the appellee may pay the costs in the district court on such appeal, together, with the costs of docketing and dismissal’ and such -appeal shall, on the motion of the appellee, be dismissed for failure to prosecute."</p> <p>On May 12, 1905, said motion to reinstate was heard and overruled and judgment rendered in favor of the defendant in error; to which action of the court exceptions were duly saved, and said cause is now properly before this court on petition in error.</p>

Okla. T. Error from District Court, Kay County; before Bayard T. Rainer, Judge. . Ejectment by J. K. Brown against Charles Jennings and another. Judgment for plaintiff, and Charles Jennings brings error. • This is an action in ejectment instituted on the 13th day of March, 1902, by the defendant in error, as plaintiff in the court below, against Charles Jennings and Susan Jennings, defendants below, said Charles Jennings being the plaintiff in error in this' court.

Error -from District Court, Woods County. Held: on the adoption of the proposed Constitution of said proposed state, and for the election of state, district, county, township, and municipal officers for the said proposed state, one Thomas Dyer was elected treasurer of the said proposed county of Woods; that one H. L. Young was elected treasurer of said proposed county of Alfalfa,…

<p>Okla. T.</p> <p> Error from, District Court, Oklahoma Countyj before B. E. Burwell, Judge. </p> <p>Action by John D. Clark and Elizabeth Clark against Thomas O’Toole and Mary O’Toole. Judgment for defendants, and plaintiffs bring error.</p>

Oída. T. Error from District Court, Kingfisher Countyj before C. F. Irwin, Judge. Action by Hattie A. Brown against' G. H. Logan. Judgment for plaintiff, and defendant brings error.

Application of Elmer Higgins for a writ of mandamus to T. L. Brown, judge of the Second Judicial District, and Ii. Stephens, sheriff. On the 18th day of December, 1907, the relator instituted this action in this court, alleging that he was in the custody of the United States marshal for the Eastern District of Oklahoma.

Ind. T. Error from the United States Gourt for the Southern District of the Indian Territory at Tishomingo; before J. T. Dickerson, Judge. Bill by the Briggs Machinery & Supply Company and others against the Tishomingo Oil & Cotton Company, in which suit the Continental Gin Company and the Ardmore National Bank and others intervened. Judgment for complainants and the intervenor the gin company, and against intervenor the Ardmore National Bank, and the bank brings error.

Ind. T. Error from the United States Gowrd of the Southern District of the Indian Territory; before J. T. Diclcerson, Judge. Action by T. Elmore against J. L. McFall and others.- Judgment for plaintiff, and defendants bring error.

Application of Lewis C. Grimes and L. C. Grimes, Jr., for a writ of habeas corpus. On April 11, 1905, on petition and affidavits duly filed in the office of the clerk of the district court of Oklahoma county, Hon. B. F. Burwell, judge of said court, granted an order, entitled- “Ee-straining Order” against Lewis 0.

<p>Ind. T.</p> <p> Error from United States Court far the Southern District of the Indian Territory; before Hosea Townsend, Judge. </p> <p>Action by C. E. Sullivan against the Mercantile Town Mutual Insurance Company: Judgment for defendant, and plaintiff brings error.</p>

<p>Okla. T.</p> <p>EiTor from. District Court, Woods County; before J. L. Pan-coast, Judge.</p> <p>Action in replevin by the Frick Company against D. C. Oats and W. W. Parsons. Judgment for defendants, and plaintiff brings error.</p>

<p>1. COURTS — U. S. Commissioners’.Co'urts — Jurisdiction—Amount in* Controversy — Joinder of Causes' of Action. Under Mansf. Dig. section 4026 (Ind. T. Ann. St. 1899, section 2706), providing that justices of the peace, whose jurisdiction is exercised by United States commissioners in the Indian Territory, shall have concurrent jurisdiction with district courts in matters of contracts where the amount in controversy does not exceed the sum of $300, exclusive of interest, and section 5014 (section 3219) declaring that several causes of action arising out of a contract direct or implied, may be united in the same complaint where each affects all the parties to the action — Held, in a commissioner’s court (section 4034 [section 2714]) a party may sue and join in as many causes of action as he may have 'against the same defendants in the same complaint, where each separate cause of action is within $300.</p> <p>2. SAME — Judgment—Consolidation of Sums. The plaintiff may ■ take judgment on each cause of action and consolidate the several sums into one judgment.</p> <p>3. JUDGMENT — (Construction—Ambiguity—Reference to Record. If the entry of a judgment is so obscure or ambiguous as not to express the final determination of the court with sufficient accuracy, reference may be had to the pleadings and entire record when construing the judgment.</p> <p>4. LIMITATION OF ACTIONS — Pleading Statute — Necessity. The bar of the statute of limitations is matter of defense; when the benefits of same are not taken by plea or answer, when not apparent from plaintiff’s pleadings, or when the same is not shown in the complaint, by plea, answer, or demurrer, the same is waived.</p> <p>5. JUDGMENT — Actions on — Limitation. Under Mansf. Dig. section 4103 (Ind. T. Ann. St. section 2783), limiting the time to five years within which execution may issue in commissioners’ courts is no limitation to action on such judgment.</p> <p>(Syllabus by the Court.)</p>

Application by Annie Bailey for writ of habeas corpus. On the 16th day of January, 1908, the relator herein was apprehended by G. W. Garrison, sheriff of Oklahoma county, upon a bench warrant issued by virtue of an indictment returned, against her on the same date by the grand jury of Oklahoma county, state of Oklahoma, charging that on the 27th day of August, A. D. 1907, the said relator, Annie Bailey, and Judge Peters, did then and there unlawfully, purposely, willfully,…

<p>CRIMINAL LAW — Venue—No ¡Prosecution before Statehood. Where an indictment for the crime of assault with intent to kill with a deadly weapon was returned after the admission of the state into the Union for an offense committed under the territory of Oklahoma, where no prosecution had been begun before said 'date, it is cognizable in the district court of the state in the county in which the offense was committed.</p> <p>(Syllabus by the Court.)</p>

Application of L. L. Ellis for writ of habeas corpus. On the 15th day of November, A. D. 1907, just prior to the admission of the state into the Union, the grand jury for the Western District of the Indian Territory returned an indictment into the United States court in said district at Muskogee against the relator, charging him with having committed the crime of larceny and receiving stolen property in said district on the 13th day of said month.

<p>Okla. T.</p> <p> Error from District Caúo't, Qacido County; before F. E. Gillette, Judge. </p> <p>Application by L. C. Burt for a liquor license. B. F. Har-man filed a remonstrance. The district court affirmed the judgment granting a license, and Harman brings error.</p> <p>Ón the 19th day of October, 1905, L. C. Burt filed his application, accompanied by a petition, in the office of county clerk of Caddo county for the purpose of having issued to him a license to sell intoxicating liquors in the town of Cottonwood, Shirley township, Caddo county?, Okla. On the 21st day of November, 1905, 'plaintiff in error and others filed with the county clerk their protest and remonstrance against the issuance of said license. In accordance with the statute the matter was referred to the board of county commissioners, which on November 7, 1908, on a hearing, found for the applicant, and ordered a license issued. Remonstrants then appealed to the district court, which affirmed the judgment of the board, whereupon the case was brought to this court o,n appeal.</p>

Ind. T. Appeal from the United States Court for the Central District of the Indian Territory; before Thomas C. Humphrey, Judge. Action by Clara L. Travel against B. H. Smith and others. Judgment for plaintiff, and defendants appeal.

Ind. T. Error from the United States Court for the Western District of the Indian Territot'y; before C. W. Bmjmond, Judge. Action to revive judgment by N D. Noyes against J. A.' French.

<p>Okla. T.</p> <p> Hrx or from the District Cowri, Oklahoma Countyj before J. K. Beauchamp, Judge. </p> <p>Action for damages by M. A. Adams against the city of Oklahoma City. Judgment for defendant, and plaintiff brings error.</p> <p>On the 30th day of October, 1904, plaintiff filed her petition in the district court of Oklahoma "county, Oklahoma Territory, against the city of Oklahoma City; the parties in the court below occupying the sáme relative positions in this court. Plaintiff alleged that the defendant was an organized and existing municipal corporation under the laws of said territory of the first class,, containing a population in excess of 3,000; that she was the owner of lots numbered 4, 5, and 6, in block numbered 51, in Maywood addition to said city, said lots being bounded on the north by Fourth street and on the west by Stiles avenue; that before any improvements were made on said lots the grades on said streets along the north and west of said lots were permanently established by the city authorities, and afterwards a building was erected oh plaintiff’s lots conforming to said grades, and above the lines of such grades so permanently established by said city authorities; that a natural water course or ravine ran from the north to the south near the east end of said lots, which carried off all the surface water that fell, and drained said lots, leaving them dry, although they were in a low place; that said lots were filled to conform to said grades, and, had said streets been 'left as first established, said lots would have been dry, and all surface water would have been drained therefrom into the gutters of the streets, and would have been carried off without' flooding the property of the plaintiff, which was used as a residence, having five rooms and a large basement, extending under the whole of said house, the same being divided into two rooms, one a storeroom and the other being used for -a kitchen and dining, room, there being three rooms above said basement which were living rooms; that afterwards, in the year 1904, said city caused the grade of said Fourth street along the north line of said lots, and said Styles avenue along the west, to be raised to the height' of 18 inches above said first grade, and caused said streets to be filled to the height of said last grade, leaving the said lots and residence of the plaintiff about 15 inches below the grade of said street in a depression, where the flood waters had no means to flow off and no outlet to escape, and same flowed on and over plaintiff’s lots, the water being dammed up without leaving any outlet for same across the east end of said lots; that before making said change in said grade the defendant wholly failed and neglected to make due compensation as required by law for damages sustained by reason of said changes. Plaintiff further alleged that about the 10th of June, 1904, a severe rain fell in said city, and by reason of the unlawful change in said grade in filling or grading said streets the water was dammed up in said ■water course, causing a large body of water to form in said street and break through the grade therein, and by reason thereof iiie property of plaintiff was overflowed, and her household goods and personal property damaged to the value of $115.80, and said house and lots have been damaged by reason of the .change in the grade of said streets in the sum of $1,500; the sum total of said damages being $1,615 80.</p> <p>The defendant, on the 24th day of October, 1904, appeared through its attorney and answered, admitting that it was a municipal corporation and that the plaintiff was the owner of the lots as alleged in her petition, but otherwise denied all the allegations of said petition.</p> <p>The evidence on the part of the plaintiff -was to the effect that said lots faced west on Stiles avenue, a street running north and south in Maywood addition, and were bounded on the north by Fourth street, running east and west, and on the east by an alley running north and south. On said lots plaintiff had erected two houses, one near the west end and the other near the center thereof, near what had the appearance of a ravine or drain according to the plaintiff’s testimony, which was in words and figures as follows:</p> <p>“Q. Was there any source by which the surface water was passed off through these lots? A. Yes; there was. Q. What was it? Just state it. A. Well, it had the appearance of a ravine. That is what I would call it. I don’t know what else. It was natural. Q. Was there any bank to it? A. No, sir; I would not think so. Q. Any indention in the ground, was it? State what it looked like. Did it just run smooth over the earth? A. No, sir. Q. Well, whrt was it? Describe it. A. It may at one time have been a water channel. Q. I wish you to describe the way the water ran there. A. The water ran in this draw. Q. Well, now, describe that draw. Was it elevated or depressed in the ground? A. It was a depression. It was lower than the other part of the country, or else I would not call it a' draw. Q. Well, were the banks sloping, or square, or what? A. The banks were sloping. Q. Now, on Fourth street, was there any opening for the letting off of the water into the street? A. Yes. Q. What was it? A. There was a small bridge in the street, and under that, of course, was a passage. Q. What became of the water that came down from the north and east through the ravine? A. It- flowed off in a few hours. Q. Where did it flow? A. It flowed in a southwesterly direction from our premises into Stiles avenue. Beyond that I don’t know.”</p> <p>This ravine or draw headed near Lincoln schoolhouse, about a half mile north of the premises in controversy, came down from the north, and entered the block north of the one in which plaintiff’s lots were situated, about the center thereof east and west, and came down through said block near the center, and crossed said Fourth street near the alley at the east end -of plaintiff’s lots, and went on south to the back end of her lots until it reached the south line thereof, where the same had been deflected into a ditch, extending along the south line of her lots out into Stiles avenue, which was at the west end of said lots, where the water flowed into said avenue. Said depression or draw was not over one-half mile in length, and drained an area not to exceed 160 acres of surface waters caused by rains falling thereon. Said draw or drain had changed its place at times, occasioned by the improvement of lots. There is nothing to show that the draw existed prior to the founding or extending of the limits of the city. It is probable that the laying off and improving of the lots, and the consequent throwing oil of surface water, produced this draw or drain, and the consequent change of location of same at times. There was a channel or ditch across the block north of the one on which plaintiff’s lots were situated, and also across Fourth street at the east end of plaintiff’s lots, to wit, in some places to a width of about 10 feet, and in some places to a depth of about 6 feet; but at various places wagons and vehicles could cross with convenience. Water never stood in this ravine, draw or drain any length of time, but ran off rapidly immediately after each rain. The proof tended to show that the ditch on the south of said lots was of sufficient capacity to carry off the surface water of ordinarily heavy rains without material injury to her lots; that prior and up to the spring of 1904 some improvement had been made upon said street, and a bridge spanning said draw or ravine had been sufficient to permit all surface water in time of rains to pass thereunder has been constructed. Plaintiff had caused the west portion of her lots to be filled up to a height above Fourth street, as it then existed, though the evidence shows that no grade was ever established by the authorities of the city until the spring of 1904, and that a portion of her lots were comparatively dry, and had never been injured by any flood water or heavy rains, although said lots were on the lowlands. In the spring of 1904 defendant established a grade on Fourth street by ordinance, the first grade established on the authority of said city, which raised the grade on said Fourth street to a height of about 4 to 6 feet above the level of plaintiff’s lots; and the defendant caused said street to be filled to the height of said grade. The bridge across said draw or ravine was taken out, and a dirt embankment thrown up, and no provision made for the flow of such surface water accumulating north of Fourth street; it appearing, that it was the intention to divert said surface water as flowed down from the north around at the north and of Fourth street to Stiles avenue west of plaintiff’s lots, where it would flow south down said avenue to the lowlands southward, thus taking it out of its usual course down said draw.</p> <p>0,n the 11th clay of June, 1904, after the grade had been established by ordinance under the authority of the city, and whilst the construction or grading of the street was being completed, there fell a heavy rain, resulting in the formation of a lake in said draw north of Fourth street extending north to Fifth street through the entire block on,which plaintiff’s lots were situated, and same was held back by the embankment erected by defendant in grading Fourth street; that said back water was of the width of about 8 or 10 rods, and at places was 20 feet in depth. As a re'sult of the raising of said grade and the obstruction of said water, and in consequence of the said heavy rain, a large body of water was collected o,n the north side of Fourth street, until it came to a point opposite plaintiff’s house, where it broke over the grade embankment in the street in several places and flowed to the depth of 2 or 3 feet, thereby overflowing the plaintiff’s house, flooding her basement, washing out the household goods, and in other ways injuring her property.</p> <p>The trial of this cause was begun on the 21st day of November, 1904. At the conclusion of the introduction of plaintiff’s testimony, defendant filed a demurrer to such evidence, which was sustained by the court. The plaintiff properly reserved her exceptions. Thereafter, within the prescribed time, plaintiff filed her motion for a new trial, assigning as ground therefor the sustaining of said demurrer and the rendering of judgment in favor of the defendant against the plaintiff, to all of which exceptions were properly saved, a,nd the cause is now properly before this court on petition in error.</p>

<p>Application by the state, on'the relation of Adam Kline, for writ of mandamus to Burril B. Bridges, mayor of the city of Chickasha.</p>

<p>Application of James Stevenson for writ of hateas corpus.</p>

Okla. T. Error from the Probate Court, Oklahoma County. Action on transcript of judgment by Luella Cole against W. F. Harn. Judgment for plaintiff, and defendant brings error. On March 17, 1904, in the probate court of Oklahoma county Qkla.

Okla. T. Error from District Court, Woods County. Action in replevin by Eeeves & Co. against Hugh Martin. Judgment for defendant, and plaintiff brings error.. This is an action in replevin begun on the 10th day of August, 1903, by the plaintiff in error, as plaintiff, against the defendant in error, as defendant, in the lower court, and reference will herinafter be made to said parties as they appeared in said court.

<p>Ind. T.</p> <p> Error from the United States Court for the Northern District of the Indian Territory; before William, B. Lawrence, Judge. </p> <p>Action on redelivery bond by John C. Shirk aud Martha Goodwin against the United States Fidelity & Guaranty Company. Judgment for plaintiffs, and defendant brings error.</p>

Okla. T. Error from District Court, Nolle County. Action for damages by the Foster Lumber Company against the Arkansas-Valley & Western Railway Company. Judgment for defendant and plaintiff brings error.

Ind. T. Appeal from the United Stales Court for the Southern District of Indian Territory sitting at Pauls Valley; before J. T. Dickerson, Judge. Action in replevin by J. W. Roark against L. W. Wettermark. Judgment for plaintiff, and defendant appeals.

<p>Ind. T.</p> <p> Appeal from the United States Court for the Southern District of the Indian Territory, at Chickasha j before J. T. Dickerson, Judge. </p> <p>R. W. Freeman, a practicing physician, brought certiorari to review the revocation of his license by the Board of Medical Examiners for the Southern District of the Indian Territory. Writ of certiorari was dismissed, and Freeman appeals.</p>

Okla. T. Error from District Court, Kingfisher County; before C. F. Erwin, Judge. Action by John D. Bracken against Ira 6. Stone and others. From an order dissolving an injunction, plaintiff brings error. On March 10, 1906, John D. Bracken, plaintiff in error, plaintiff below, commenced this action in the district court of Kingfisher county, Okla.

Ind. T. Error from the United States Court in the Indian Territory, Southern District at Pauls Valley; before Hosea Townsend, Judge. Action in conversion by Lizzie Bell against John Masoner and others.

Okla. T. Error from District Court, Caddo County; before F. E. Gillette, Judge. Application of S. H. Smith for a liquor license. F. F. Burk-halter filed a remonstrance, and from an order granting the license Burkhalter brings error. September 25, 1905, S. Ii.

Imi. T. Error from the United States Court for the Central District of the Indian Territory, at South McAlester; before Wm. H. H. Clayton, Judge. Action for damages by Walter Shepherd against the Missouri, Kansas & Texas Railway Company. Judgment for plaintiff, and defendant appeals.

Okla. T. Error from, District Court, Canadian County j before C. F. Irwin, Judge. Action by Katherine Ziska against F. R. Ziska and F. M. Ziska. Judgment for defendants, and plaintiff brings error.. November 4, 1903, Katherine Ziska, plaintiff below, and plaintiff in error here, secured a judgment for $1,700 in the disr trict court of Lancaster county; Neb., against Frank R. Ziska, her husband, in a suit for divorce and alimony.

Okla. T. Error from District Court, Washita County; before James K. Beauchamp, Judge. Action by H. L. Jamieson against the St. Louis & San Francisco EailroacT Company. Judgment for plaintiff and defendant brings error. This action was begun in the district court of Washita county, territory of Oklahoma, on the 5th day of September, 1904. On the 20th day of March, 1905, plaintiff filed his first amended petition, upon which the cause was tried.

Okla. T. Error from. District Court, Lincoln Countyj before John E. Bur-. ford, Jtidge. Condemnation proceedings by the Choctaw, Oklahoma & Western Railway Company- for right of way over school land. From judgment for $27.90 in District Court the territory brings error.

<p>Okla. T.</p> <p>Error from District Court, Pawnee County; before, Bayard T. Earner, Judge.</p> <p>Actio,n on contract for sale of goods by J. H. Milam against T. M. Grant and Frank Hudson. Judgment for plaintiff, and defendants bring error.</p> <p>November 24, 1903, J. H. Milam, who will hereafter be denominated “plaintiff,” filed his petition in the district court of Pawnee county, Okla. T., against T. M. Grant and Frank Hudson, individually and as partners in which it was alleged that in the month of July, 1903, they entered into a verbal contract whereby plaintiff agreed to sell, and defendants agreed to buy, all of the corn which the plaintiff then owned, which by the terms of the said contract and agreement was to be delivered by plaintiff on the cars at Skedee; that defendants agreed to pay a stipulated price for the said corn; that plaintiff sold and delivered, and the defendants received of plaintiff, the corn; that the total value of the corn delivered by plaintiff and received by defendants was $4,749.63, on which there was a balance due of $1,911.48, for which, with his costs, plaintiff prayed judgment. To this petition defendants filed the following answer:</p> <p>“Answering plaintiffs petition herein, these defendants deny each and every allegation in said petition contained.”</p> <p>Upon the issues thus framed, the cause was submitted to a jury, which found in favor of plaintiff in accordance with the prayer of his petition. A motion for new trial being filed and overruled, the case is before us on petition in error.</p>

<p>Okla. T.</p> <p> Error from the ¡District Court, Garfield County; before J. L. Pan-coast, ■¡udge. </p> <p>Action by W. W. Keele against Charley Maggert before a justice. Motion to retax costs, and defendant appealed. Appeal dismissed, and defendant brings error.</p>

Okla. T. Error from the United States Court for the Western District of the Indian Territory, at Muskogee; before Wm. B. Lawrence, Judge. Action by the Iowa Land & Trust Company against R. P. De' Graffenreid and others to quiet title, or for partition or sale of the premises as their respective interests might appear.

Error from District Court, Pottawatomie County; before B. F. „ ■ Burwell, Judge. Action by J. F. Kerker and others against C. J. Bocher and others. Injunction to prevent collection of assessments for street improvements. Judgment for defendants) and! plaintiffs bring error.

Oltla. T. Error from Probate Court, Grant County; before A. C. Glenn, Judge. A. E. Hubbard was conivcted of crime, and brings error.

<p>Okla. T.</p> <p> Error from District Court, Blcdne County; befare M. C. Qarber, Judge. </p> <p>Action on promissory note by the First National Bank of Kingfisher against Ed Gillespie and others. Judgment for plaintiff, and defendants bring error.</p>

<p>Ind. T.</p> <p> Appeal from, the United States Court for the Western District of the Indian Territory, at Muskogee; before William, B. Lawrence, Judge. </p> <p>Action on promissory note and mortgage by J. Rnst against Louisa L. Brewer and others. Judgment for plaintiff, and defendants appeal.</p>

<p>Okla. T.</p> <p> Error from District Court, Noble County; before Bayard T. Plainer, Judge. </p> <p>Action, by Isaac Kime against Marion Gardner. Judgment for plaintiff, and defendant brings error.</p>

Okla. T. Error from District Court, Garfi&ld County; before James K. Beauchamp, Judge. Action by Robinson & Co. against C. F. Roberts. Judgment for defendant, and plaintiff brings error. On November 25, 1903, Robinson & Co., a corporation, plaintiff in error, plaintiff below, filed in the district court of Garfield county, Okla., its amended petition in replevin against 0.

Ind. T. Error to the United States Court for the Western District of the Indian Territory, at Wagoner; before Louis Sulzbarger, Judge. . Action by the Muskogee Land Company against Priscilla Blackburn and others. Verdict for plaintiff. From an order granting a new trial, plaintiff brings error.

<p>1. COLLEGES ^ND UNIVERSITIES — Constitutional Law — Government of State University — “Public Schools." The term “public schools,” as used in section 5, art. 13, of the Constitution of Oklahoma, does not include in its meaning the University of Oklahoma.</p> <p>2: SAME. Said section 5, art. 13, of the Constitution, providing that the supervision of instruction in the public schools shall be vested in a board of education, does not vest the Board of Education of the State of Oklahoma with supervision of the University of Oklahoma.</p> <p>3. SAME. There is no repugnancy between section 5, art. 13, of the Constitution, and article 17, c. 77, of Wilson’s Revise',! and Annotated Statutes of Oklahoma for 1903 entitled “An act to establish and locate the University of Oklahoma.”</p> <p>4 SAME. Article 17, c. 77, Wilson’s Rev. & Ann. St. Okla. 1903, is not locally inapplicable, and was, by section 2 of the Schedule to the Constitution, extended to and put in force in the state of Oklahoma until it expires by its own limitation or is altered or repealed by law.</p> <p>(Syllabus by the Court.)</p>

<p>Okla. T.</p> <p> Error from District Courtt Noble County; before Bayard T. Rainer, Judge. </p> <p>Aetio,n by H. B. Bullen against the Arkansas Valley & Western Railway Company. Judgment for defendant, and plaintiff brings error.</p>

Application by Frank Buchanen for writ of habeas corpus. The relator, Frank Buchanen, is charged with having killed, ' on the 8th day of October, 1907, near Braden, Le Flore county, Okla., then Indian Territory, one Wayne Noblin, in such a manner as to constitute manslaughter, by indictment returned on the. 12th day of December, 1907, at the December term of the district court for the Fifth judicial district of the state, held in Le Flore county.

<p>Okla. T.</p> <p> Error from Probate Court, Canadian County; before J. J. Phelps, Judge. </p> <p>Action by Warren H. Lewis against 0. M. Clevenger. Judgment for plaintiff, and defendant brings error.</p> <p>"On the 1st day of January, 1904, for value received, I prom-plaintiff, commenced this action in the probate court of Canadian county, Oída. T., against 0. M. Clevenger, as defendant. Said action was based upon a certain promissory note in haec verba-.</p> <p>“$239. 81. . ' Calumet, O. T., Aug. 28th, 1903.</p> <p>“On the 1st day of January, 1904, for value received, I promise to pay C. W. Lewis or order two hundred thirty-nine 81-100 dollars, with interest at the rate of 10 per cent, per annum, payable annually. Payable at Calumet, O. T. And it is agreed that, if the interest or principal is not paid when due, it shall bear interest at the rate of eight per cent, per annum, and the whole sum shall become due and payable at the option of the holder if the interest be not paid within thirty days after due. It is also stipulated that, should proceedings be commenced to enforce the collection of this note by law, a reasonable amount shall be allowed as an attorney fee, and the same shall be taxed as costs in the cause. The amount of this note being less than three hundred dollars, I hereby consent and agree that a justice of the peace shall have full and complete jurisdiction thereof in case suit is brought. , “O. M. CleveNger.</p> <p>Indorsed: “Nov. 3, 1903. Pay to order of Warren H. Lewis C. W. Lewis.”</p> <p>On November 9, 1905, defendant filed his first amended answer. On the 11th day of November, 1905, A. Baird, as as-signee of C. W. Lewis, filed his interplea, alleging that he was the duly qualified and acting assignee of C. W. Lewis, under a general assignment for the benefit of creditors made on the 5th day of September, 1903, and that the said assignee was and is the owner of said note and deed evidenced thereby described in plaintiff’s petition, and that the alleged sale and indorsement of the same to the plaintiff was without consideration, and not bona fide-, that the said sale, indorsement, and delivery of said note was made in contemplation of said general assignment and judgment by said defendant, and so made in order to place the same out of the reach of the creditors of said C. W. Lewis. Wherefore said interpleader asked that he be adjudged to be the owner of said note. Thereafter, on the 13th day of November, 1905, the said plaintiff moved the said court to strike the said interplea from the files, for the reason that the said assignee did not show any interest in the subject-matter of the litigation. The record does not show that said motion to strike said interplea from the file was ever acted upon. Thereafter, on the same day, to wit, the 13th day of November, 1905, the plaintiff filed a motion to require defendant to make his amended answer more definite and certain. And thereafter on the 18th day of November, 1905, the defendant filed his second amended answer, wherein he, except as thereinafter expressly admitted, denied all and singular all of the allegations in plaintiff’s petition. Further, said defendant admitted the execution of the note sued on, and further alleged that about May, 1902, C. W. Lewis, heretofore referred to as the original payee in said note, was in the possession of and claimed to be the owner of 63 'head of Aberdeen-Angus cattle, which were described in a certain chattel mortgage, executed on the 9th day of January, 1902, to secure the sum of $2,048.38 by the said C. W. Lewis to a firm named Allen-Dudley & Co. A copy of said mortgage was attached and marked “Exhibit A.” The same was filed for record on the 11th day of January, 1902.</p> <p>Defendant further alleged in said answer that said C. W. Lewis then and there represented and stated to him that he was the absolute owner of said cattle, and that they were free and clear of all incumbrances, and that he had a good and valid right to sell and convey the same, and solicited said defendant to purchase an undivided one-half interest therein for the sum of $1,945.15, to be paid by a promissory note bearing interest at the rate of 8 per cent, per annum and due one year after date, and that the defendant relied upon the statements and representations of said C. W. Lewis, believing same to be true, and without any knowledge whatever of said incumbrance, and relying upon the representation of said C. W. Lewis that he was the absolute owner of said cattle, and had a good and lawful right to sell and convey the same, and that said cattle were free from all incumbrance, said defendant was induced to and did execute and deliver to the said C. W. Lewis his promissory note for the sum of $1,945.15, dated May 28, 1902, páyable o.ne year after date, with interest at the rate of 8 per cent, per annum, the consideration for said note being an undivided one-half interest in said cattle.</p> <p>The defendant further alleged that he spent large sums of money in caring for said cattle, a portion of which sum so expended by the defendant was evidenced by a promissory note executed to the said C. W. Lewis dated April 28, 1903, in the sum of $666.02; that thereafter the defendant purchased of said C. W. Lews an undivided one-half interest in a certain number of head of horses, and executed in payment thereof to the said C. W. Lewis his promissory note, wherein he agreed to pay to said C. W. Lewis the sum of $600 on demand, with interest at the rate of 10 per cent, thereon; that no demand was made by said C. W. Lewis, or any other holder thereof, until the 28th day of August, 1903, on which date the said C. W. Lewis renewed and extended the same by surrendering up the old notes and taking in lieu thereof defendant’s two promissory notes, one for the sum of $1,945.15, dated on the 1st day of June, 1904, bearing interest at the rate of 8 per cent, per annum, and another for the sum of $666.02, due on the 1st day of June, 1904, bearing 10 per cent, interest, and at the time, and as a part of the same transaction, at the request of the said Lewis, the defendant, to cover the accumulated and earned interest on said notes, executed to the said Lewis the promissory note upon which this action is based, and the sole and only consideration moving from said C. W. Lewis to said defendant was the accumulated interest on said notes as aforesaid.</p> <p>Defendant further alleged: That at all times said C. W. Lewis was a resident of the state of Iowa. That on the 5th day of September, 1903, the said C. W. Lewis became insolvent, and in the said state of Iowa executed a general deed of assignment for the benefit of. his creditors, wherein he assigned to one A. Baird all of his property, real and personal, situated in said state and in the territory of Oklahoma, i,u trust for the benefit of all his creditors in accordance with and as approved by the laws of the said state of Iowa. That said assignee under said deed came into possession of said notes, and took the possession of, and assumed the management and control of all of, the real and personal property of said C. W. Lewis save and except the note upon which this action is based. That thereafter the said Allen-Dudley & Co., of Omaha, Neb., began in the district court of Canadian county an action in replevin against the defendant and said assignee to recover possession of said 63 head of cattle under and by virtue of said mortgage heretofore referred to, and in said action obtained the possession of said cattle. Thereafter, in the month of July, 1904, the said Baird, as assignee, Allen-Dudley & Co., and this defendant, settled and adjusted said matters hereinbefore men-tione, and the said Baird obtained possession of said cattle, together with all their increase, and sold the same at public sale, and paid off and discharged from the proceeds of said sale the mortgage indebtedness due the said Allen-Dudley & Co., and paid off and discharged from the proceeds of said sale said mortgage debt, and agreed with the defendant, in consideration of the defendant making no opposition to said sale, nor any opposition to the application of the proceeds thereof, to surrender and deliver to the defendant all the notes and obligations of the defendant to said C. W. Lewis. That the defendant received no part of the proceeds of said 'sale nor derived any benefit therefrom.</p> <p>Defendant further alleged that he had no actual knowledge ox no actual notice- of the existence of said mortgage on said cattle until the service of the writ of replevin in said action; that the said C. W. Lewis parted with nothing, and the defendant received nothing for the execution of the notes mentioned and described in plaintiff’s petition; that the defendant derived no benefit from the possession of said cattle, nor from the increase thereof, but was - damaged and injured thereby, losing the money expended by him for feed, earing for said cattle for a period of nearly two years, as well as his time and labor caring for the same, and that the defendant would not have purchased said cattle had he known of the existence of said chattel mortgage, and had he not been deceived by the said C. W. Lewis as aforesaid; further, that the consideration for the execution of said note has wholly failed.</p> <p>The defendant further alleged that the said C. W. Lewis was indebted to him in the sum of $1,000, and was so indebted to him in said sum on the 3d Ray of November, 1903, the date on which the plaintiff alleged he became the owner of the note sued on; that from and after the 28th day of May, 1902, the said C. W. Lewis and said defendant voluntarily associated themselves together as general partners under the firm name and style of Lewis & Clevenger.</p> <p>Defendant further alleged that when the said notes mentioned and described in said chattel mortgage became due the said Allen-Dudley & Co. extended the same by permitting the said C. W. Lewis to execute a new and additional chattel mortgage to cover the identical cattle, and same was held as collateral to the original security. Defendant set out the copy of the agreement between the said assignee and himself by whch said assignee obligated himself to interplead for said note. Said parties have been referred to herein as they appear in the court below.</p> <p>On September 1, 1905, plaintiff filed reply to the second amended answer, denying every material allegation therein contained; and thereafter, on the same date, plaintiff moved for judgment against the defendant on the pleadings lherein filed; and thereafter, on the 11th day of January, 1906, motion for judgment on the pleadings was taken up and argued before the court. and the court rendered judgment thereon in favor of the plaintiff; to which action of the court the defendant duly saved .his exceptions, and the action is now properly before this court on petition in error.</p>

Okla. T. Error from District Court, Afolle County; lefore Bayard T. Rainer, Judge. Action by the territory, on the relation of Charles R. Bostick, county attorney, against W. A. Parker and others, county commissioners of Noble county. Judgment for plaintiffs, and defendants bring error.