township officers are, the revenue derived there- 1815, Stat. 1890; section 8173, Rev. Laws from to go into the treasury of such township, 1910); and the plaintiff was thus created the township holds such park in its public or out of the east half of the original territory governmental right in respect to the disposition of the same in a division of said township in within the boundaries of the defendant, the accord with statutory authority by erecting a said park lands, being within the bounds of new township out of a portion of its territory defendant and abutting on plaintiff's west not including such park. and the new township can have no cause of action arising out of boundary line. such division in the absence of statutory

In Union Township v. Oakdale Township, grounds for the same.

30 Okl. 708, 120 Pac. 968, 39 L. R. A. (N. S.) (Ed. Note.-For other cases, see Towns, Cent. 284, it is held: Dig. $8 16-19; Dec. Dig. & 11.*]

"Where a new township is created out of a

part of the territory of an old one, unless some Commissioners' Opinion, Division No. 1. provision is made in the act creating the new Error from District Court, Grant County; or exists under the statute respecting the propWm. M. Boles, Judge.

erty and existing liabilities of the old township, Action by Liberty Township, a municipal public property, except such as may be located

the old township retains the title to all the corporation of Grant County, against Rock in the detached territory, and is responsible for Island Township, a municipal corporation of the debts contracted before the division." Grant county, for an interest claimed in a

In support of that rule, that case cites park formerly within the boundaries of and Winslow v. France, 20 Okl. 303, 94 Pac. 689, owned by both townships then comprising and Wilhite v. Mansfield et al., 23 Okl. 246, one township. Judgment for defendant, and 99 Pac. 1087. Also, see 1 Municipal Corplaintiff brings error. Affirmed.

porations, by Dillon (5th Ed.) $$ 359, 360.

In Pass School District of Los Angeles C. S. Ingersoll and Sam P. Ridings, both

County v. Hollywood City School District of of Medford, for plaintiff in error. Parker &

Los Angeles County, 156 Cal. 416, 105 Pac. Simons, of Enid, for defendant in error.

122, 26 L. R. A. (N. S.) 485, 20 Ann. Cas. 87,

the said rule was apparently predicated THACKER, C. The plaintiff in error (Lib- upon the view that a school building is held erty township, of Grant county) brought this by the district in which it is situated as a action against the defendant in error (Rock trustee of the state, that is, for state governIsland township, of the same county) for a mental purposes, and not in the merely priportion of a park of 60 acres of land within vate or proprietary right of the district as the boundaries of the defendant, or, if that a corporation. And, as indicated by Cumrelief could not be granted, for a share of mings v. Lobsitz, 142 Pac. 993, and City of the rents and profits derived from the same; Wellington v. Township of Wellington et al., and upon a sustention of defendant's demur- 46 Kan. 213, 26 Pac. 415, also as shown in 1 rer to its petition elected to stand thereon Municipal Corporations, Dillon (5th Ed.) 88 and brings the case here for review upon the 109–112, 115, 131, 335, there is a distinction judgment accordingly rendered against it. to be observed between the public or govern

It appears from the petition that under a mental and the private or proprietary right legislative act of March 12, 1897 (sections in which a municipality holds property as 5874-5885, Wilson's Rev. & Ann. Stat. 1903), affecting the question of municipal independ. plaintiff acquired 20 acres of land; and un-ence in respect to the same, or, in other der a legislative act of February 27, 1903 words, the question of its freedom from (Sess. Laws 1903, pp. 215, 216), it acquired legislative control and its consequent subjecthe 40 acres additional for the same pur- tion to the judicial power of the state when pose. The said acts authorized the defend controverted questions of right in respect to ant to acquire said land for the use of the a disposition of it arise. public, presumably for general park purpos- Ordinarily, it seems that where property is es, and for the use of all political, religious, held by a municipality in its purely private and other societies; also, "for the purpose of or proprietary right, as contradistinguished holding a fair, or fruit, poultry or other from its public or governmental right, it is shows," for which an admission fee might be within the judicial power of the state to decharged, and authorizing license fees for termine all questions growing out of con"booth and other privileges." The first of ficting claims of right in respect to a dissaid acts provided for a board of three com- position of the same. missioners, to be elected as other township [1] But a township is an involuntary terofficers, to provide rules and regulations for ritorial and political division of the state and to govern and control the park, includ- organized for the exercise of a portion of ing the buildings thereon.

the political power thereof. 38 Cyc. 598. In February, 1911, the defendant township It is only a quasi municipal corporation with was divided into two townships (under the little independent corporate life, and with sixth subdivision of section 1815, Stat. 1890, only "such power and functions and is subas amended by Sess. Laws 1897, pp. 116- ject only to such liabilities as are provided 118, and found in the fifth subdivision of by statute." Id. Also, see 38 Cyc. 611.

” . section 1600, Rev. Laws 1910, and section [2, 3] In running the scale from the highest to the lowest forms of municipal-corpo- , townships, but one of legislative wisdom, of rate life, such divisions of the state appear which the courts cannot take cognizance. to be progressively more completely subject For the reasons stated, the judgment to the legislative and less subject to the should be affirmed. judicial power of the state in respect to their property rights; or, in other words,

PER CURIAM. Adopted in whole. as between such corporations and the state, the former is regarded as progressively far

(44 Okl. 405) ther removed from a relation in which it McKEMIE V. ALBRIGHT. (No. 3517.) may assert contractual rights against the (Supreme Court of Oklahoma. Dec. 8, 1914.) state in respect to its rights in property, and its rights in property progressively partake

(Syllabus by the Court.) more of a public or governmental and less 1. APPEAL AND ERROR (8 1001*)—VERDICT-

EVIDENCE. of a private or proprietary character with

Where there is competent evidence reasonsuch decrease in independent corporate life. ably tending to support the verdict of the jury

In 1 Municipal Corporations, Dillon (5th under proper instructions from the court, this Ed.) § 116, it is said:

court will not disturb the verdict. “Public parks, gas, and water in towns and Error: Cent. Dig. 88 3922, 3928–3934; Dec.

[Ed. Note.-For other cases, see Appeal and cities may ordinarily be classed as private affairs, but they often become matters of public Dig. $ 1001.*] importance, and, when the Legislature deter- 2. APPEAL AND ERROR ($ 1050*)—EVIDENCE mines that there is a public necessity for their ($ 158*)-HARMLESS ERROR-ALIENATION OF use in a certain locality, it has been said that LANDS REMOVAL OF RESTRICTIONS - BEST they cannot be designated as the mere private AND SECONDARY EVIDENCE. affairs of the corporation.

Where restrictions are removed by order of

the Department of the Interior and a sale made In section 117, Id., it is said:

under the rules and regulations of such depart"It has been held that, although title to the ment, it is incompetent to prove by oral testiland within a city forming a public park is mony the removal of the restrictions and sale vested in a city, the control of the public parks of such land, as the records kept by the departbelongs primarily to the state. The authority ment are the best evidence. But under the facts which the common council or park commission in this case, the admission of such oral testiers of a city may exercise in the control or man- mony was not prejudicial to the plaintiff, as agement of public parks is not derived from the court instructed the jury that plaintiff's the citizens of the municipality within the lim- title was paramount to that of defendant, units of which such parks are situated, but from less the jury found that the lease in question the Legislature. Such parks are held, not for was reassigned to Albright to the knowledge the sole use of the people of a particular mu- of the plaintiff prior to the time that the plainnicipality, but for the use of the general pub- tiff purchased the lease from Bray. It therefore lic which the Legislature represents. Munici- is immaterial as to the strength or weakness palities, in controlling and managing such pub- of the defendant's title, as plaintiff, in order lic parks, act as a governmental agency exer- to recover, must do so upon the strength of his cising authority delegated by the state, and are own title. always subject to legislative control. By virtue [Ed. Note. For other cases, see Appeal and of its control over the public parks the Legis- Error, Cent. Dig. $$ 1068, 1069, 4153-4157, lature possesses the power to authorize a munici- 4166; Dec. Dig. 1050;* Evidence, Cent. Dig. pality to devote it to a use which is inconsistent $$ 472, 473, 47412-504, 506-526; Dec. Dig. 8 with park purposes, so long as such inconsistent 158.*] use is some other and higher public purpose which will render its enjoyment by the public

Commissioners' Opinion, Division No. 1. more extended and general."

Error from District Court, Bryan County;

A. H. Ferguson, Judge. Then, too, the same subject, it seems, may

Action by Will McKemie against Frank be regarded as public or governmental in one

Albright. Judgment for defendant, and aspect and private or proprietary in another.

Affirmed. See Id.

plaintiff brings error. In its aspect as subject of the conflicting

H. A. Ledbetter, of Ardmore, for plaintiff claims of right in the present case, we think in error. McPherren & Cochra'n and Chas. the park lands are held by the township as P. Abbott, all of Durant, for defendant in an agent or trustee of the state.

error. We think the park in question was held for public and governmental purposes, and not in RITTENHOUSE, C. This is an action the private or proprietary right of the town- brought by Will McKemie, plaintiff in error, ship; that, since a division of the township and also plaintiff below, against Frank Alin which it was acquired and located in ac- bright for the possession of the north half of cord with legislative authority, such prop- the northeast quarter and the northeast erty belongs to the township in which it is quarter of the southeast quarter of the northsituated; that the new township has been east quarter, all in section 28, township 7 divested of no private or proprietary right south, range 11 east of the Indian Meridian, by the old one, and therefore cannot main- and asking for damages for the detention tain this action against the latter; and that of said land for the time plaintiff has been the question presented for adjudication by kept out of possession. The plaintiff conthe plaintiff's petition is in its last analysis tends that he is entitled to possession of not one of law or equity between these two said lands by virtue of a certain lease con

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r ) adexes tract, executed October 23, 1908, for a term to section 8 of the Act of Congress of April of five years, by Columbus Dixon, the allot-26, 1906 (34 Stat. 139, c. 1876), which protee, to W. T. Pemberton, and by him assign- vides that certified copies of any record pered in writing to B. W. Bray, which assign- taining to the enrollment of any Choctaw ment was never recorded, and on January Indian or the disposition of the land and 15, 1910, assigned in writing by Bray to Will other property of said tribe, when made by McKemie. It is contended by the defendant, the officer having custody thereof, shall be Frank Albright, that he purchased said land evidence equal with the originals thereof, from the allottee after restrictions were re- and calling attention to section 5892, Comp. moved, and received a warranty deed, which Laws 1909, which makes similar provision was executed subsequent to the lease.

for the use of a certified copy as evidence. [1] Albright introduced in evidence in sup- It is undoubtedly true that the best eviport of his contention the deed to the allot-dence of the removal of restrictions and the ment and oral testimony of the removal of sale of an allotment made through the Inthe restrictions of Columbus Dixon. He con- terior Department are the records of that detends that, although the plaintiff did secure partment; but admission of oral testimony an assignment of the lease from Bray, to relative to the removal of restrictions and whom said lease was first assigned, Bray the sale of the allotment, under the facts in agreed with the said Pemberton to reassign this case, could not be prejudicial error. said lease to Pemberton, and that the same The lease made to Pemberton, which was was by Pemberton re-leased to him, and Al- afterwards assigned, was executed prior to bright went into possession, and further the deed, and under the instructions of the claims that this fact was known to McKemie court the lessee would be entitled to the posat the time he purchased the lease from session of the premises regardless of the Bray. The court instructed the jury that deed held by the defendant, unless that lease the lease executed by Columbus Dixon, which had been reassigned to the purchaser as was was assigned to Bray in writing and by Bray contended in this case. The question here assigned in writing to McKemie, conveyed is not which of the two interests are parathe right to the use of the land during the mount, but the only question is whether or term of the lease, regardless of the fact that not the lease was reassigned to the purthe defendant had purchased the land, un-chaser; it being apparently conceded that, less the jury should find that Bray had re- if the lease was still a valid outstanding assigned the lease to Pemberton and the lease in the hand of the plaintiff, it would same was by Pemberton re-leased to Albright, be paramount to the defendant's title. Unand that this fact was known to McKemie der these facts, oral evidence of the removal on the date that he purchased the lease from of restrictions and the sale of the allotment Bray. The court further instructed the jury could in no wise be prejudicial. This acthat, when the land had been conveyed either tion is one of ejectment, and plaintiff cannot by lease or otherwise by written instrument, recover upon the weakness of the defendant's the same could not be recovered by an oral title, but upon the strength of his own. agreement, unless the oral agreement was Myers v. Mathis, 2 Ind. T. 3, 46 S. W. 178; completely executed and carried out. This Hurst v. Sawyer, 2 Okl. 470, 37 Pac. 817; left to the jury the question as to whether Jennings v. Brown, 20 Okl. 294, 94 Pac. 557; or not the lease was reassigned to Albright Mitchell v. Humphrey, 36 Okl. 711, 129 Pac. after he had purchased the land from the 744; Young v. Chapman, 37 Okl. 19, 130 allottee, and also the further question as to Pac. 289. whether McKemie had knowledge that the

The cause should therefore be affirmed. lease had been reassigned to Albright before Bray had assigned it to him. There was suf

PER CURIAM. Adopted in whole. ficient evidence to sustain the verdict of the jury, on the question, and it is a familiar

(44 Okl. 403) rule of this court that, although there may

TAYLOR V. SMITH, Sheriff. (No. 3496.) be a doubt as to the correctness of the verdict reached by the jury, yet we will not, when (Supreme Court of Oklahoma. Dec. 8, 1914.)

, the evidence is conflicting, examine and

(Syllabus by the Court.) weigh the same to determine where the pre-1. REPLEVIN (§ 5*)–Right OF ACTION-Ex

1. ponderance of the evidence lies, but will EMPT PROPERTY SEIZED UNDER EXECUTION. sustain such verdict whenever there is any L'nder section 4055, St. 1893 (section 4799, competent evidence reasonably tending to Rev. Laws 1910), a distinct action in replevin support the same. Lynch v. Halsell, 34 Okl. Lynch v. Halsell, 31 Okl. fully

in possession of exempt property (section

by the owner will lie against a sheriff wrong7, 125 Pac. 725; McConnell v. Watkins, 140 2860, St. 1890, as amended by Sess. Laws 1905, , Pac. 1167, and cases cited.

p. 255, the same being section 3342, Rev. Laws [2] It is next contended by the plaintiff 1910) under a writ of execution upon a perthat the admission of oral testimony as to

sonal judgment in another case against such

owner for debt. the removal of the restrictions of Columbus

[Ed. Note.-For other cases, see Replevin, Dixon was prejudicial, and calls attention Cent. Dig. $$ 27-37; Dec. Dig. & 5.*]

2. APPEAL AND ERROR ($_773*)–FAILURE TO murrer is apparent upon such search of the FILE BRIEFS-REVIEW-REVERSAL.

record as we have made; and, for the reaWhere plaintiff in error has, in compliance with the rules of the court, served and filed sons stated, the judgment should be reversed his brief, but the defendant 'in error has nei and the case remanded, with instructions to ther filed nor offered excuse for failure to file overrule the demurrer and observe this opinbrief, the court is not required to search the ion in further proceedings in this case. record to find a theory upon which the judgment may be sustained, and may reverse the

PER CURIAM. Adopted in whole. case in accordance with the prayer of the plaintiff in error, if the brief filed appears to reasonably sustain such action, [Ed. Note.-For other cases, see Appeal and

(45 Okl. 21) Error, Cent. Dig. 88 3104, 3108-3110; Dec. GEARY MILLING & ELEVATOR CO. V. Dig. 8 773.*]

LANE. (No. 3799.) Commissioners' Opinion, Division No. 1. '

(Supreme Court of Oklahoma. Dec. 8, 1914.) Error from County Court, Kingfisher County; John M. Graham, Judge.

(Syllabus by the Court.) Action in replevin by Thomas Taylor REFERENCE (8 100*)-EVIDENCE BEFORE REF

EREE-REVIEW BY COURT-MOTION FOR NEW against Clyde Smith, Sheriff. Judgment for

TRIAL. defendant and plaintiff brings error. Revers- Evidence adduced before a referee cannot ed and remanded.

be reviewed by a trial court unless the findings

of the referee are challenged by motion for Bradley & Bradley, of Kingfisher, for plain- new trial filed in such court within the statutory tiff in error.

time. In the absence of such motion, the ref

eree's findings become the decision of the court, THACKER, C. Plaintiff in error brought upon which judgment must be rendered. this action in replevin in the county court of Cent. Dig. $S 157-168; Dec. Dig. $ 100.*]

[Ed. Note.-For other cases, see Reference, Kingfisher county against the defendant in error for a cow, a calf, a wagon, a set of Error from District Court, Seminole Coundouble harness, and a saddle, in possession ty; Tom D. McKeown, Judge. of the latter as sheriff of said county, and Action by the Geary Milling & Elevator appealed from a judgment sustaining a de- Company, a corporation, against Samuel W. murrer to his petition therefor and denying Lane, trading under the name of the Lane his right to recover thereon. After this case Grocery Company.

. After this case Grocery Company. Judgment for plaintiff was brought into this court the plaintiff in for less than the sum found by the referee, error died; and on September 25, 1913, this and plaintiff brings error. Reversed, with case was duly revived in this court in the directions to enter judgment on the referee's name of Lee Taylor, administrator of the de- finding. cedent's estate, as plaintiff in error, following

C. Dale Wolfe, of Wewoka, for plaintiff in such revivor in the trial court. The essential facts, when not stated, are for defendant in error.

error. Crump, Fowler & Skinner, of Wewoka, necessarily presupposed by this opinion, and will therefore be understood. [1] Under the fifth subdivision of section

BLEAKMORE, J. This case presents er4055, Stat. 1893 (section 4799, Rev. Laws ror from the district court of Seminole coun1910), a replevin action will lie against a ty. The parties are referred to herein as sheriff who, acting under a writ of execution they appeared in the court below. to satisfy a personal judgment for debt

Plaintiff instituted its action against the against the plaintiff and in favor of a third defendant on an open account for goods, party, is wrongfully in possession of person wares, and merchandise alleged to have been al property owned by and exempt to the sold and delivered. The defendant answered plaintiff as the head of a family residing in by way of general denial. The cause was this state under section 2860, Stat. 1890, as referred to a referee to take all testimony and amended by Sess. Laws 1905, p. 255 (section to render complete findings of fact and law. 3342, Rev. Laws 1910); and if, as asserted The cause was heard before the referee, who (without any denial) in brief duly filed for made his findings of fact and conclusions of plaintiff, the demurrer was sustained upon law, to which the defendant filed exceptions. the ground that the property, being in cus- Thereafter the report of the referee was filed todia legis in another action, in which motion in the court. The referee found that the to discharge might have been made, could not defendant was indebted to the plaintiff in the be retaken in this distinct action for replevin, sum of $607.19, with interest from the 1st the trial court is in error. Irwin v. Walling, day of July, 1907.

Irwin v. Walling, day of July, 1907. No motion for new triai 4 Okl. 128, 44 Pac. 219; Blair v. Shew, 24 was filed at any time in the court. Upon Kan. 280; Westenberger v. Wheaton, 8 Kan. consideration of the report of the referee it 169; 34 Cyc. 1368, 1369.

was found and adjudged by the court that [2] The defendant has neither filed brief the defendant was indebted to the plaintiff nor otherwise appeared in this case in this in the sum of $427.19, and judgment was court, and no ground upon which the trial rendered in that sum. Motion for new trial court might properly have sustained the de-was filed and overruled.


*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. 'Series & Rep'r Indexes No briefs have been filed on behalf of the conclusive evidence as to the age of said citidefendant in error.

zen or freedman is not unconstitutional and It is contended by the plaintiff that, in- void, but a valid exercise of the authority vested

in Congress. asmuch as no motion for a new trial was filed

[Ed. Note.-For other cases, see Indians, within three days after the filing of the re- Cent. Dig. 88 17, 29, 30, 34, 37-44; Dec. Dig. port of the referee, such report was, un- $$ 13, 15.*] der the statute, the decision of the court, as 2. INDIANS ($ 13*)-ALIENATION OF LANDbinding and as effective as a special verdict ENROLLMENT RECORD AS EVIDENCE-OPERAof a jury, that nothing remained to be done

TION OF STATUTE. by the court, save the rendition of judgment tioned in the foregoing paragraph, providing

That part of said act of Congress, menin accordance with such decision, and that, “* * * that the enrollinent records of the inasmuch as such decision was unchallenged, Commissioner to the Five Civilized Tribes shall it was the duty of the court to render its hereafter be conclusive evidence as to the age it was the duty of the court to render its of said citizen or freedman," applies to transjudgment upon such findings.

actions relating to the sale af lands of an alThe question involved has been decided by lottee, when entered into subsequent to the this court in First National Bank of Shawnee taking effect of the act. 9. Oklahoma National Bank of Shawnee, 29 Cent. Dig. g 30; Dec. Dig. § 13.*] v

[Ed. Note.-For other cases, see Indians, Okl. 411, 118 Pac. 574, in which case it was said in the syllabus:


PROBATIVE EFFECT-CANCELLATION OF IN"To secure a review of the evidence taken op

STRUMENTS. a trial before a referee, a motion for a new trial

In a suit by a Creek citizen of the half must be filed in the trial court, and not before blood to cancel certain deeds and a mortgage the referee, and, except for the cause of newly to her allotted lands, made by her during her discovered evidence, must be at the term the re- alleged minority, and where it was also sought port is filed, and, unless unavoidably prevented, to cancel the note executed contemporaneously within three days thereafter.”

with the mortgage, and for which the latter And again:

was given to secure payment, and where the “The findings of fact of a referee, where not issue, and the only evidence introduced or ten

fact of minority was by the pleadings put in challenged within a proper time and manner, dered was the citizenship rolls of the Commisbecome final, and exceptions to a judgment ren; sioner to the Five Civilized Tribes, it was erdered thereon are of law, and not fact, and cannot be raised on a motion for a new trial.” ror to decree the cancellation of the note. It was the duty of the trial court, in the ab. cent. Dig. $ 30; Dec. Dig. 13.*]

[Ed._Note. For other cases, see Indians, sence of a motion for a new trial, to review

4. INDIANS (8 13*)-ALIENATION OF ALLOTthe proceedings had before the referee, filed

MENT – ENROLLMENT RECORD – EFFECT as in that court within the time provided by EVIDENCE-APPLICATION OF STATUTE. law, to render its judgment upon the findings

Section 3 of the act of May 27, 1908 (35 and report of the referee, and it was beyond ords thereafter conclusive evidence of the age

Stat. 313, c. 199), making the enrollment recthe power of that court to review the evi- of a citizen or freedman of the Five Civilized dence adduced before the referee without a Tribes, is confined by its terms to questions proper motion for a new trial. It follows, arising under the act, and not to independent therefore, that the trial court should have or even related questions.

[Ed. Note.-For other cases, see Indians, rendered judgment for the sum of $607.19, Cent. Dig. $ 30; Dec. Dig. $ 13.*] the amount reported and found by the referee, and it was error to review the evidence Commissioners' Opinion, Division No. 1. and make another and different finding and Error from District Court, Okmulgee Counrender judgment thereon.

ty; Wade S. Stanfield, Judge. The judgment of the trial court is revers- Action by Jennie Yarbrough against Wiled, with directions to enter judgment upon liam D. Cornelius and others. Judgment for the findings of the referee. All the Justices plaintiff, and the defendant named and anconcur, except KANE, C. J., absent and not other bring error. Modified and affirmed. participating.

N. A. Gibson, H. C. Thurman, and T. L. (44 Okl. 375)

Gibson, all of Muskogee, for plaintiffs in CORNELIUS et al. v. YARBROUGH.

error. Merwine & Newhouse and Geo. C. (No. 3118.)

Beidleman, all of Okmulgee, for defendant (Supreme Court of Oklahoma. Dec. 8, 1914.) in error. (Syllabus by the Court.)

SHARP, C. On July 28, 1910, in the dis1. INDIANS (S$ 13, 15*)-ALIENATION OF LAND

--ENROLLMENT RECORD - EFFECT AS Evi trict court of Okmulgee county, defendant in DENCE-VALIDITY OF STATUTE.

error, Jennie Yarbrough, filed suit against Plenary authority to fix the terms and the plaintiffs in error and others, alleging conditions under which restrictions from the lands allotted to the members of the Creek that she was a citizen of the Creek Tribe of Tribe of Indians should be removed is vested Indians of the half blood, and had receivin Congress, and that portion of Act May 27, ed as a portion of her allotment a tract of 1908, c. 199. 35 Stat. 312. containing as one lands consisting of 160 acres (describing it), of such conditions and terms, the provision that the enrollment records of the Commissioner to that she was enrolled on the 18th day of the Five Civilized Tribes shall hereafter be January, 1900, by the Commission to the

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