Jordan v. Goldman , 1 Okla. 406 ( 1891 )

The following opinion was delivered by This is a bill in chancery, on the Federal side of the court, for an injunction against the defendant to restrain him from doing certain acts against the persons and property of the complainants, alleged to be in violation of the rights of complainants as citizens of the Cherokee Nation of Indians, and Cherokees by blood, and, therefore, unlawful, and for the doing of which, complainants have no adequate remedy at law.

The bill alleges that complainants are citizens of the Cherokee nation, and Cherokee Indians by blood. That, in 1883, they established a farm and improvements on what is known as the Cherokee Outlet, and within the jurisdiction of this court, and in accordance with the laws, usages, and customs of the Cherokee Nation; and that the said Cherokee Outlet is in possession of, and owned by the Cherokee Nation in fee simple.

That complainants discovered on the farm a stone quarry, and, for the purpose of operating the same obtained a license from said nation in conformity with the laws and usages of the same, for a term of ten years, and that such license has not expired.

That complainants proceeded to open the quarry, and to mine and carry on the business of shipping stone; that they cleared the ground, made suitable openings to quarry and get out the stone, erected buildings and other conveniences for their laborers and employes, and built a switch, or spur, railroad to their quarry.

That land was put in cultivation, derricks were purchased and placed in position with necessary tools, and a full and complete plant was constructed to carry on the business of quarrying and shipping stone; and that complainants have expended and laid out about six thousand dollars.

That they have continuously been, and now are conducting the business of quarrying and selling and shipping stone from said quarry, and delivering the same in the state of Kansas, as contracted for and ordered from time to time; that they have built up and established a good business, and, in due course of business, have entered into numerous contracts for the sale and delivery of stone, which have not been executed and complied with.

That complainants are upon the Cherokee Outlet, and it possession of their premises, under and by virtue of their farming improvements, and by virtue of the said license from the authorities of the Cherokee Nation.

That being citizens of the Cherokee Nation to whom said outlet belongs, under the laws and constitution of the United States, and the treaties existing between the United States and the Cherokee Nation, they have a right to locate, be, and remain upon said outlet with their improvements and holdings.

That defendant, Goldman, is first lieutenant of the Fifth United States Cavalry; a white man, having under him troop "K" of said Fifth Cavalry, and a detachment of twenty Indian scouts; that on the 28th day of February, 1891, the said defendant, with his command, came to said quarry, where complainants were at work, and with force and arms unlawfully and violently took possession of said quarry without authority of law; that defendant claimed to be acting under orders from the war department, directing that all intruders should be removed from said Cherokee Outlet; and that he was ordered by said war department to destroy the track of said railroad, belonging to complainants, and all the buildings and improvements at and around said quarry, and to remove all tools, derricks and other machinery, in and about said quarry, over the line and into the state of Kansas; and that such removal would be made by force, on, or before 10 o'clock a. m., March 2, 1891; and that the said defendant will proceed to do so, unless restrained from so doing by writ of injunction.

That there is no right, power, or authority lawfully vested in, given, granted or conferred upon the said defendant to remove the complainants, and to destroy the said premises; that, if the threatened acts of the defendant are carried out, the business of complainants built up and established by years of industry and toil, will be ruined and destroyed, and complainants will be involved in a multiplicity of suits with their patrons, with whom they have contracts unfulfilled for the furnishing and delivering of stone.

That the destruction of complainants' plant, buildings and track will wholly destroy and lay waste their farming improvements and quarry, and cause complainantsirreparable injury and damage, as said defendant and those acting under him are wholly insolvent, and, for that reason, a judgment at law would be useless, and could not be collected.

That complainants are not intruders upon said Cherokee Outlet, within the scope and purview of the laws of the United States, and the treaties made with the Cherokee Nation, or the laws governing trade and intercourse with the Indian tribes, but are lawfully thereon.

To this bill of complaint, defendant, Goldman, appeared and filed an answer, alleging, inter alia, as follows:

That he does not know, and does not believe, that complainants are citizens of the Cherokee Nation, and Cherokees by blood. He does not admit that complainants established, or located improvements on what is known as the Cherokee Outlet, as alleged in their bill of complaint. He denies that the Cherokee Outlet is within the jurisdiction, or possession of the Cherokee Nation, and denies that said outlet belongs to the Cherokee Nation, in fee simple, or otherwise.

He does not know whether complainants discovered the stone quarry, and does not know whether they obtained license from the Cherokee Nation, as alleged in their bill of complaint, but demands proof.

He denies any knowledge of the opening and developing of the quarry, and the making of the switch; and does not know by whom the track and other conveniences, tools and derricks, and the quarry plant were brought to, or placed upon, or about said quarry, or the cost or value of the same, but demands proof.

That, on the 28th day of February, 1891, he found at said quarry a large number of persons, claiming different rights and interests therein, among whom was the complainant, Jordan, but not the complainant, Bushy-head, or his alleged guardian.

That some of these persons were then, and for some time had been, carrying on the business of quarrying stone at said quarry, and shipping stone from said quarry, and delivering stone in the state of Kansas under contract therefor, and at such other places as the contracts provided. That such business was a considerable business, and, in the progress thereof, large quantities of stone had been taken from the quarry, and that very large quantities were intended to be taken from said quarry for general traffic; and that said quarry was and is within the Cherokee Outlet.

That among persons in and about said quarry were citizens of the United States; and that all of said persons were employed and engaged in working in and about said quarry, and were claiming some interest, or right, in the machinery, or plant, or quarry, or the stone taken, or intended to be taken therefrom.

That under orders from the war department, dated Dec. 31, 1890, and the proclamation of the president dated February 17, 1891, defendant was directed to proceed to the Cherokee Outlet, with the troops and Indian scouts mentioned, and drive out all persons unlawfully in the Cherokee Outlet, and all cattle and other stock unlawfully therein.

The said orders were properly issued by the war department under the directions of the president of the United States, and directed to the proper officer by the president, and came to the defendant as an officer of the army of the United States, and to the troops and Indian scouts, who were then in the army of the United States, and under the immediate command of the defendant.

That in the execution of these orders, the defendant proceeded to the Cherokee Outlet, with said troops and Indian scouts, and removed divers and sundry persons resident, or being, in said outlet; and under said orders proceeded to the said quarry, and there directed the persons in and about the said quarry, including the said complainant, Jordan, to remove from said quarry, and from said Cherokee Outlet, and to cease quarrying stone at said quarry; and that said direction and order, by the defendant, to the persons at said quarry, was intended to cover any and all persons at said quarry, or claiming any interest therein.

The defendant is informed and believes, that said Cherokee Outlet did not, and does not, belong to the Cherokee Nation, or the Cherokee people in fee simple or otherwise; and that the complainants have no right, as against the United States, to operate a stone quarry in said outlet, in the manner stated in said bill of complaint, or otherwise, under license issued by said Cherokee Nation. That the complainants have no right, except by consent of the United States, to open and develop a quarry of stone in said outlet, or to remove stone from said outlet.

That complainants have no right to locate, or put improvements on said outlet; and have no right to employ white men, or other persons, citizens of the United States, or aliens, to go in, or upon, said outlet and quarry stone therein for transportation, or use elsewhere. That complainants are intruders upon said outlet, except, possibly, as they may use the same for passing over, as provided by the treaties of 1828 and 1833.

Complainants filed a general replication to the answer of the defendant, and, on the hearing of the application for a temporary injunction, submitted affidavits, supporting substantially the facts stated in the bill of complaint; and the cause has been argued and submitted for decision, as if upon issue and full proof.

As there is no contention in regard to the facts of this case, the important question which lies at the very threshold of the inquiry is, what title, or interest, has the Cherokee Nation to, or in, the Cherokee Outlet? And, in determining this question, it is not necessary to review the history of the Cherokee Indians, and the numerous treaties made by the United States with the Cherokee Nation, prior to the treaty of the sixth of May, one thousand eight hundred and twenty-eight.

By the treaty of the sixth of May, one thousand eight hundred and twenty-eight, it is recited in the preamble as follows:

"Whereas, it being the anxious desire of the government of the United States to secure to the Cherokee Nation of Indians, as well those now living within the limits of the Territory of Arkansas as those of their friends and brothers who reside in states east of the Mississippi, and who may wish to join their brothers of the west, a permanent home, and which shall, under the most solemn guarantee of the United States, be and remain theirs forever, a home that shall never, in all future time, be embarrassed by having extended around it the lines, or placed over it the jurisdiction of a territory or state, nor be pressed upon by the extension, in any way, of any of the limits of any existing territory or state; and

"Whereas, the present location of the Cherokees in Arkansas, being unfavorable to their present repose, and tending, as the past demonstrates, to their future degradation and misery; and the Cherokees being anxious to avoid such consequences, and yet not questioning their rights to their lands in Arkansas, as secured to them by treaty, and resting also upon the pledges given them by the president of the United States, and the secretary of war, of March, 1818, and 8th of October, 1821, in regard to the outlet to the west, and as may be seen on referring to the records of the war department, still being anxious to secure a permanent home, and to free themselves and their posterity from an embarrassing connection with the territory of Arkansas, and guard themselves from such connections in future."

It appears from this preamble, that it was the anxious desire of the government of the United States, as well as the Cherokees, to secure to the Cherokees a permanent home, which should be outside the limits of any state or territory, and, with that permanent home, to secure to them an outlet to the west; and to that end the treaty provided as follows:

"Article 2. The United States agree to possess the Cherokees, and to guarantee it to them forever, and that guarantee is hereby solemnly pledged, of seven millions acres of land, to be bounded as follows, viz: Commencing at that point on Arkansas river, where the eastern Choctaw boundary line strikes said river, and running thence with the western line of Arkansas, as defined in the foregoing article, to the southwest corner of Missouri, and thence with the western boundary line of Missouri till it crosses the waters of Neosho, generally called Grand river; thence due west to a point from which a due south course will strike the present northwest corner of Arkansas territory; thence continuing due south, on and with the present western boundary line of the Territory to the main branch of Arkansas river; thence down said river to its junction with the Canadian river; and thence up and between the said rivers, Arkansas and Canadian, to a point at which a line running north and south, from river to river, will give the aforesaid seven millions of acres. In addition to the seven millions of acres thus provided for and bounded, the United States further guarantee to the Cherokee Nation a perpetual outlet west, and a free and unmolested use of all the country lying west of the western boundary of the above described limits, and as far west as the sovereignty of the United States and their right of soil extend."

After the making of this treaty with the Cherokee Nation, it was discovered that the boundaries of the seven millions of acres, as defined by the treaty, included lands that had been ceded to the Creek Nation of Indians, in 1826, by treaty with the United States; and by the first article of the treaty of the fourteenth day of February, one thousand, eight hundred and thirty-three, the boundaries of the seven millions of acres are corrected, and the same provision is made for a perpetual outlet west, as was made by the second article of the treaty of 1828. Said article provides as follows:

"Article 1. The United States agree to possess the Cherokees, and to guarantee it to them forever, and that guarantee is hereby pledged, of seven millions of acres of land, to be bounded as follows, viz: Beginning at a point on the old western territorial line of Arkansas territory, being twenty-five miles north from the point where the Territorial line crosses the Arkansas river; thence running from said north point south, on the said territorial line, to the place where said territorial line crosses the Verdigris river; thence down said Verdigris river to the Arkansas river; thence down said Arkansas to a point where a stone is placed opposite to the east or lower bank of Grand river at its junction with the Arkansas; thence running south forty-four degrees, west one mile; thence in a straight line to a point four miles northerly from the mouth of the north fork of the Canadian; thence along the said four-mile line to the Canadian, thence down the Canadian to the Arkansas; thence down the Arkansas to that point on the Arkansas where the eastern Choctaw boundary strikes said river; and running thence with the western line of Arkansas territory, as now defined, to the southwest corner of Missouri; thence along the western Missouri line to the land assigned to the Senecas; thence on the south line of the Senecas to Grand river; thence up said Grand river as far as the south line of the Osage reservation, extended, if necessary; thence up and between said south Osage line, extended west if necessary; and a line drawn due west from the point of beginning, to a certain distance west, at which a line running north and south from said Osage line to said due west line will make seven millions of acres within the whole described boundaries. In addition to the seven millions of acres of land, thus provided for, and bounded, the United States further guarantee to the Cherokee Nation a perpetual outlet west and a free and unmolested use of all the country lying west of the western boundary of said seven millions of acres as far west as the sovereignty of the United States and their right of soil extend: Provided, however, That if the saline, or salt plain, on the great western prairie shall fall within said limits prescribed for said outlet, the right is reserved to the United States to permit other tribes of red men to get salt on said plain in common with the Cherokees; and letters-patent shall be issued by the United States as soon as practicable for the land hereby guaranteed."

On the 29th day of December, 1835, at New Echota, in the State of Georgia, and for the purpose of uniting the Cherokees east and west of the Mississippi, a new treaty was made between the United States and the Cherokee Nation; the second and third article of which provide as follows:

"Article 2. Whereas, by the treaty of May 6, 1828, and the supplementary treaty thereto of February 14, 1833, with the Cherokees west of the Mississippi, the United States guaranteed and secured to be conveyed by patent, to the Cherokee Nation of Indians, the following tract of country: Beginning at a point on the old western territorial line of Arkansas Territory, being twenty-five miles north from the point where the territorial line crosses the Arkansas river; thence running from said north point south on the said territorial line where the said territorial line crosses Verdigris river; thence down said Verdigris river to the Arkansas river; thence down said Arkansas to a point where a stone is placed opposite the east or lower bank of Grand river at its junction with the Arkansas; thence running south, forty-four degrees west, one mile; thence, in a straight line, to a point four miles northerly from the mouth of the North Fork of the Canadian; thence along said four-mile line to the Canadian; thence down the Canadian to the Arkansas; thence down the Arkansas to that point on the Arkansas where the eastern Choctaw boundary strikes said river, and running thence with the western line of Arkansas Territory, as now defined, to the southwest corner of Missouri; thence along the western Missouri line to the land assigned the Senacas; thence on the south line of the Senacas to Grand river; thence up said Grand river as far as the south line of the Osage reservation, extended if necessary; thence up and between said south Osage line, extended west if necessary, and a line drawn due west at the point of beginning to a certain distance west, from which a line running north and south from said Osage line to said due west line will make seven millions of acres within the whole described boundaries. In addition to the seven millions of acres of land thus provided for and bounded, the United States further guarantee to the Cherokee Nation a perpetual outlet west, and a free and unmolested use of all the country west of the western boundary of said seven millions of acres, as far west as the sovereignty of the United States and their right ofsoil extend. Provided, however, That if the saline or salt plain on the western prairie shall fall within said limits prescribed for said outlet, the right is reserved to the United States to permit other tribes of red men to get salt on said plain in common with the Cherokees; and letters-patent shall be issued by the United States as soon as practicable for the land hereby guaranteed; and whereas it is apprehended by the Cherokees that in the above cession there is not contained a sufficient quantity of land for the accommodation of the whole nation on their removal west of the Mississippi, the United States in consideration of the sum of five hundred thousand dollars therefor, hereby covenant and agree to convey to the said Indians and their descendants, by patent in fee simple, the following additional tract of land situated between the west line of the state of Missouri and the Osage reservation, beginning at the southeast corner of the same, and runs north along the east line of the Osage lands fifty miles to the northeast corner thereof; and thence east to the west line of the state of Missouri; thence with said line south fifty miles; thence west to the place of beginning; estimated to contain eight hundred thousand acres of land; but it is expressly understood that if any of the lands assigned the Quapaws shall fall within the aforesaid bounds the same shall be reserved and excepted out of the lands above granted, and a pro rata reduction shall be made in the price to be allowed to the United States for the same by the Cherokees.

"Article 3. The United States also agree that the lands above, ceded by the treaty of Feb. 14, 1833, including the outlet, and those ceded by this treaty, shall all be included in one patent executed to the Cherokee Nation of Indians by the president of the United States according to the provisions of the act of May 28, 1830. It is, however, agreed that the military reservation at Fort Gibson shall be held by the United States. But should the United States abandon the post and have no further use for the same it shall revert to the Cherokee nation. The United States shall always have the right to make and establish such posts and military forts in any part of the Cherokee country as they may deem proper for the interest and protection of the same, and the free use of as much land, timber, fuel, and materials of all kinds for the construction and support of same, as may be necessary; provided, that if the private rights of individuals are interfered with, a just compensation therefor shall be made."

The Act of congress of May 28, 1830, referred to in the treaty of 1835, by the first and second sections of the Act, authorized the president of the United States to exchange certain lands west of the Mississippi river with any tribe, or nation, of Indians residing within the limits of any of the states or territories, and with which the United States had existing treaties, for the whole or any portion of the territory claimed, or occupied, by such Indians; and the third section of the Act was in these words:

"And be it further enacted, that in the making of any suchexchange or exchanges, it shall and may be lawful for the president solemnly to assure the tribe or nation with which the exchange is made, that the United States will forever secure and guarantee to them and their heirs or successors, the country so exchanged with them, and if they prefer it, that the United States will cause a patent or grant to be made and executed to them for the same; provided always that such lands shall revert to the United States if the Indians become extinct or abandon the same."

On the 31st day of December, 1838, the president of the United States, in pursuance of the provisions of the treaties of 1828, 1833 and 1835, with the Cherokee Nation, made and executed to said nation a patent, in which the provisions of said treaties with reference to the seven million acres for apermanent home, and the eight hundred thousand acres additional, and the Cherokee outlet are set out, and with the following granting and habendum clauses:

"Therefore, in execution of the agreements and stipulations contained in the said several treaties, the United States havegiven and granted, and by these presents do give and grant unto the said Cherokee Nation, the two tracts of land so surveyed and hereinbefore described, containing in the whole fourteenmillions, three hundred and twenty-four thousand, one hundredand thirty-five acres, and fourteen hundredths of an acre tohave and to hold the same, together with all the rights, privileges and appurtenances thereunto belonging to the saidCherokee Nation forever; subject, however, to the right of the United States to permit other tribes of red men to get salt on the salt plain on the western prairie referred to in the second article of the treaty of the twenty-ninth of December, one thousand eight hundred and thirty-five, which salt plan has been ascertained to be within the limits prescribed for the outlet agreed to be granted by said article; and subject also to all the other rights reserved to the United States, in and by the articles hereinbefore recited, to the extent and in the manner, in which the said rights are so reserved; and subject also to the condition provided by the Act of congress of the twenty-eighth of May, one thousand eight hundred and thirty, referred to in the above recited third article, and which condition is, that the lands hereby granted shall revert to the United States, if the said Cherokee Nation becomes extinct, or abandons the same."

Now, the question is, what kind of title do these several treaties, and the Act of 1830, and the patent of 1838, give the Cherokee Nation to the lands described in the treaties and patent, including the Cherokee Outlet? And, in determining this question, it matters not whether the title of the Cherokee Nation shall be derived from the several treaties, or from the patent issued in pursuance of such treaties, so far as the title to the Cherokee Outlet is concerned. The condition in the patent, however, that the lands shall revert to the United States, if the Cherokee Nation shall abandon the same, is not found in the treaties; and serious doubts have been expressed as to the validity of the condition in the patent, for the reason that it was not authorized by the treaties under which it was issued. (Holden v. Joy, 17 Wallace, 250.)

The title of the Cherokee Nation to the seven million acresof land, known as their permanent home, and the eight hundredthousand acres additional has already been passed upon by the courts, and would seem to be no longer in question. In fact, as to the eight hundred thousand acres, that tract of land was purchased by the Cherokee Nation, for the sum of five hundredthousand dollars, and by the treaty of 1835, the United States covenanted and agreed to convey the same by patent, in fee simple, and the same was conveyed by the patent of 1838. And as to the seven million acres, the Supreme Court of the United States in the case of the Cherokee Nation v. Kansas RailwayCo., 135 U.S. 656, concedes that the Cherokee Nation holds the same in fee simple. The court there says:

"The fact that the Cherokee Nation holds these lands in fee simple, under patents from the United States, is of no consequence in the present discussion."

Again in the case of Holden v. Joye, supra, involving the title of the Cherokee Nation to the eight hundred thousandacres, it is said that the condition in the patent that the lands shall revert to the United States, if the Cherokee Nation shall abandon the same, if a valid condition, reduces the estate to less than a fee simple, and makes it an estate upon a condition subsequent.

The court says:

"Strong doubts are entertained whether that condition in the patent is valid, as it was not authorized by the treaty under which it was issued. By the treaty the United States covenanted and agreed to covey the lands in fee simple title, and it may well be held that if that condition reduces the estate conveyed to less than a fee, it is void; but it is not necessary to decide that point, as it is clear that if it is valid it is a condition subsequent, which no one but the grantor in this case can set up under any circumstances."

In the case of the United States v. Reese, 5, Dillon, 405, an information was filed against the defendant for unlawfully cutting timber on lands situated in the Cherokee Nation, being a part of the seven million acres described in the several treaties and in the patent of 1838; and it became necessary for the court to determine, in the case, what estate the Cherokee Nation had in, and by what title they held, these lands. The question was raised upon a demurrer to the information, and Judge Parker, in passing upon the demurrer, said:

"But suppose the condition contained in the patent is void, let us see what effect that has upon the title. The condition is that the lands revert to the United States if the said Cherokees become extinct or abandon the same. Now, the first of these conditions is one which would be silently engrafted on the grant independent of any express words. When there is a grant and the grantee and his heirs become extinct, the land encheats to the state, whether the grantee be an individual, or a body of individuals. In an ordinary patent, absolute from the government, the implied right of escheat to the sovereign lies behind the patent. In this case it is expressed."

Therefore, that expressed condition does not take away the character of a fee simple title. But the other one, against abandonment, does. This leaves the title less than a fee. But what character does it have? Blackstone, (book 2d Chap. 7, p. 109,) says:

"A base, or qualified fee is such a one as hath a qualification subjoined thereto, and which must be determined whenever the qualification annexed to it is at an end. As in the case of a grant to A. and his heirs, tenants of the manor of Dale. In this instance, whenever the heirs of A. cease to be tenants of the manor the grant is entirely defeated." * * *

This estate is a fee, because by possibility it may endure forever in a man and his heirs. Yet, as that duration depends upon the concurrence of collateral circumstances which qualify and debase the purity of the donation, it is, therefore, a qualified or base fee.

Chancellor Kent (vol. 4. p. 10 of his Commentaries) says:

"A qualified, base, or determinable fee is an interest which may continue forever, but the estate is liable to be determined without the aid of a conveyance, by some act or event, circumscribing its continuance or extent. It is the uncertainty of the event and the possibility that the fee may last forever, that renders the estate a fee, and not merely a freehold."

And the court concludes:

"This Indian title being a base, qualified, or determinable fee, with only the possibility of a reversion, and not the right of reversion, in the United States, all the estate is in the Cherokee Nation of Indians.

What was said in these cases, however, was said with reference to the estate of the Cherokee Nation in the permanent home lands, being the seven million acres, and the eighthundred thousand acres, and did not refer to the estate of the Cherokee Nation in the Cherokee Outlet. And it is noticeable, too, that no two of the cases agree as to the estate of the Cherokee Nation in their home lands. In the first case, it is called a fee simple; in the second, an estate in fee upon a condition subsequent; and in the third, a base, qualified, or determinable fee. But by striking out of the patent the condition, that the lands shall revert to the United States, if the Cherokee Nation shall abandon the same, all the cases can be reconciled, and give to the Cherokee Nation a fee simple estate.

How then, does the estate of the Cherokee Nation in the Cherokee Outlet differ, if at all, from their estate in the home lands? They are both held by one and the same title, that is, the several treaties and the patent of 1838; but that there is a difference, in contemplation of law, is manifest to the legal mind, from a consideration of the several treaties, in pursuance of which the patent was issued, and which are referred to in the patent.

As to the Cherokee Outlet, the several treaties provide:

"In addition to the seven million of acres of land, thus provided for and bounded, the United States further guarantee to the Cherokee Nation a perpetual outlet west, and a free and unmolested use of all the country west of the western boundary of said seven millions of acres, as far west as the sovereignty of the United States and their rights of soil extend."

What the United States have here guaranteed to the Cherokee Nation, is a perpetual outlet west, and that perpetual outlet is ceded by the treaties, and granted by the patent of 1838. The estate of the Cherokee Nation in the Cherokee Outlet differs from their estate in the home lands in this, that there is no qualification of the use of the homelands, and they may be used for any purpose consistent with a fee simple ownership, while the estate in the Cherokee Outlet is qualified as to the use of the lands themselves, and the law annexes a condition that they shall be used for the purpose of an outlet, and for no other.

It is contended on behalf of the complainants, and alleged in their bill of complaint, that the Cherokee Nation is the owner of the Cherokee Outlet in fee simple; and, in behalf of the defendant, that their only interest is a mereeasement, and that the fee of the lands is in the United States. It is clear, however, upon principle and authority, that neither one of these positions is tenable, and that the estate of the Cherokee Nation is a base, qualified, or determinable fee, and that, too, whether we reject, or retain, the condition in the patent, that the lands shall revert to the United States, if the Cherokee Nation shall abandon the same.

In Coke upon Littleton it is said:

"Of fee simple it is commonly holden that there be three kinds, viz: fee simple absolute, fee simple conditional, and fee simple qualified, or a base fee."

And Blackstone in defining a base, or qualified, fee, says:

"A base, or qualified, fee is such a one as hath a qualification subjoined thereto, and which must be determined whenever the qualification annexed to it is at an end." (2 Com. p. 109.)

In the case of the United States v. Rogers, 23 Fed. Rep. 663, the court had occasion to examine and pass upon the question under consideration, and there said:

"If this is an offence against the laws of the United States, it was committed in that part of the Cherokee country known as the 'Cherokee Outlet.' This country, together with the other part of its lands, was granted to the Cherokee Nation, as a nation, by the treaties between the Nation and the United States, made May 6, 1828; (Indian Treaties, 56 and 57); the fourteenth of February, 1833, (Id. 61,) and December 29, 1835, (Id. 65.) By these treaties the Cherokee Nation was granted a perpetual outlet west, and a free and unmolested use of all the country lying west of the western boundary line of the seven million acres of land granted in and by the same treaties. * * * * * * * * By looking at the title of the Cherokees to their lands, we find that they hold them all by substantially the same kind of title. * * * * * This court held in the case of the United States v. Reese, 5 Dillon 405, that the Cherokees hold their land by title different from the Indian title by occupancy; they derived it by grant from the United States. It is a base, qualified, or determinable fee, without the right of reversion, but only the possibility of reversion, in the United States. This in effect puts all the estate in the Cherokee Nation." (See, also, in re Wolf, 27 Fed. Rep, 615.)

The qualification annexed to a base, qualified, or determinable fee may be either one of two kinds. It may be a qualification which attaches itself to the use of the land, so that the estate is held to be granted for that use and purpose only, and on the cessation of the use the estate expires; or it may be one which is concerned with the happening of a more strictly collateral event, in that case leaving the use of the estate free for any purpose, but limiting its existence only by the event contemplated, or to the continuance of the state of affairs contemplated at the time of the grant,

In the case of the State v. Brown, 3 Dutch., (N.J.) 13, land was conveyed to the Morris Canal and Banking Company, for the purposes of a canal, and as long as used for a canal, and it was held that the estate conveyed was a base, qualified, or determinable fee, and liable to be defeated whenever they ceased to use the land for the purpose specified in the grant; and, in passing upon the question, the court said:

"By the deed to the canal company, the land is conveyed to them, their successors and assigns, together with all and singular the waters, profits, privileges, and advantages, with the appurtenances to the same belonging or in any wise appertaining, also, all the estate, rights, title, interest, claim and demand whatsoever of the party of the first part of, in, and to the same, and to every part and parcel thereof; to have and to hold all and singular the above described tract or parcel of land and premises, with the appurtenances unto the said party of the second part, their successors and assigns, to the only proper use, benefit and behoof of the said party of the second part, their successors and assigns, as long as usedfor a canal. There is no reservation in the deed. It conveys all the right, title and interest of the grantors in the land and its appurtenances for the term specified in the grant, to-wit: As long as used for said canal.

"By the terms of the conveyance, the grantees take a qualified fee liable to be defeated whenever they cease to use the land for the purpose specified in the grant. (1 Inst. 1, b 27 a; 1 Cruise 79 tit. 1, § 82; 2 Bl. Com. 110.")

In the case of Sheetz v. Fitzwater, 5 Penn. State, 126, which was an action of trespass, in which the title to the locus inquo was involved, the plaintiff claimed title under a deed, dated in 1746, from Emlen to Lardner, conveying "a certain mill dam or pond of water, and mill race or stream of water, issuing and proceeding from the said mill dam or pond of water, as the same is now situated, and being in and upon a certain tract or parcel of land situated in the manor of Springfield, together also with the site and soil of the said mill pond or dam, and race of water, and also one perch of land on each and every side of the said pond, or dam and race of water, to and for the use and service of a certain mill, with the land thereto belonging, and for no other use whatsoever. The said perch of land to be taken and laid out from the center or middle of the said mill race, and from the edge of the water round or on the outside of the sand pond, if his, the said George Emlen's land shall extend one perch beyond the said dam or pond, or otherwise, so far as the said George Emlen's land doth extend beyond the said point, not exceeding one perch; and also, full and free liberty and privilege to and for the said Lynford Lardner, his heirs and assigns, of egress and regress to and from the said mill pond and race, to repair, support and maintain the same for the use and service of the said mill. (The liberty and privilege of making bridges and hedges or fences across the said mill race, and of passing and repassing over and along the same, to and from the adjacent land of the said George Emlen, so as such bridges, hedges or fences, do not obstruct, hinder, or prejudice the same race or pond of water, or either of them, excepted and hereby reserved to the said George Emlen, his heirs and assigns.)"

On the trial of the cause, the court instructed the jury, as to the estate conveyed by the deed from Emlen to Lardner, as follows:

"But Emlen did not convey a fee simple estate in that land. He conveyed a qualified fee, determinable on the abandonment by Lardner, his heirs or assigns, of the use and service for which the conveyance was made, as stated in his deed. And in conveying such limited fee, he retained the reversion in himself; and that he could permit to descend or to sell to others. To convey such limited fee, and to retain the reversion, was his intention, as the court collects it from his deed; and such intention of the grantor, when legal, is the governing principle when construing conveyances; (4 Dal. 347; 3 Watts Serg. 303; 2 Binn, 537, 544.) Lardner therefore acquired an estate in this pond and mill race as land to be held by him, his heirs and assigns, so long, and no longer, as he or they continued to use them for the purpose stated; and necessarily they reverted to Emlen, or his heirs or assigns, as the case might be, whenever that purpose was abandoned, and the land was subjected to other uses."

The giving of these instructions by the trial court was assigned for error, but the court held, Gibson, C. J., delivering the opinion, that they stated correct propositions of law. And see also the following cases: Board of Education v.The Inhabitantz. 18 Ohio St., 221; Kirk v. King, Pa. State, 436, Improvement Co. v. Mayor, 36 N.J. 550.

The estate of the Cherokee Nation in the Cherokee Outlet, under the several treaties, and the patent of 1838, was considered in the case of the United States v. Soule, 30 Fed Rep., 918, by that eminent jurist, Judge Brewer, now of the supreme court of the United States, and in which he said:

"Now, is this outlet, within the meaning of the Act of 1883,set apart and occupied by the Cherokee Nation? That it was set apart to that Nation is evident; but was it occupied? Doubtless, in a certain sense it was occupied, because the Cherokee Nation had a title and right to possess it; but, if congress had meant by this Act to include all land owned by the Cherokees, the words, set apart, would have been ample, and the word occupied was superfluous. Obviously, some distinctive matter was intended to be expressed by the use of the word. The significance of it is evident, from the language of the proviso in Art. 2, heretofore quoted. Manifestly congress set apart that 7,000,000 acres as a home, and that was thereafter to be regarded as set apart and occupied, because, as expressed in the preamble of the treaty, Congress was intent upon securing a permanent home. Beyond that, the guaranty was of an outlet, not territory for residence, but for passage ground, over which the Cherokees might pass to all the unoccupied domain west. But while the exclusive right to this outlet was guaranteed, while patent was issued conveying this outlet, it was described and intended obviously as an outlet, and not as a home. So, whatever rights of property the Cherokees may have in this outlet, it was not territory set apart for a home, and is not territory, within the language of the Act of 1883, set apart and occupied by the Cherokee tribe."

That the Cherokee Outlet was ceded and granted by the United States, and accepted by the Cherokee Nation, for the purpose of, and to be used as, an outlet only, and was so understood by both parties to the treaties and patent, is placed beyond all question from a consideration of the treaty of December 29, 1835, in which provision is made for the additional eighthundred thousand acres as a part of the permanent home, it being apprehended that the seven million acres, set apart for that purpose, were not sufficient for the united Cherokees. If the six million acres in the Cherokee Outlet could have been used for the purpose of a home, there would have been no necessity for the purchase of the additional lands, for which the Cherokee Nation paid the sum of $500,000.

Again, in dividing the Cherokee Nation into judicial districts, the laws of the nation do not recognize any territory west of the 96th meridian, and, consequently, cover no part of the Cherokee outlet, as it was not inhabited in the sense in which their home lands were inhabited. And it is significant, also, that, as early as 1821, in a letter written by Mr. Calhoun, then secretary of war, to the Cherokees, in Arkansas, they were promised a permanent home and an outlet west, but were distinctly informed that they should have no right of soil in the outlet, but an outlet only. It is true that the outlet there spoken of is not the outlet in controversy; but the transaction tends to show what the Cherokees understood by having guaranteed to them aperpetual outlet west.

In construing the several treaties, and the patent of 1838, as vesting in the Cherokee Nation a base; qualified, or determinable fee in the Cherokee Outlet, no effect has been given to the condition in the patent that the land shallrevert to the United States, if the Cherokee Nation shallabandon the same; nor is it necessary to give it any effect for the purposes of this case. As the lands were ceded and grantedas an outlet, the law annexes the qualification, or condition, that they can be used for no other purpose, and that the estate shall continue no longer than the proper use of the lands continues.

That the law implies a qualification, or condition, in such case, is clear. In the Indianapolis, Peru Chicago R. W. Co.v. Hood et al., 66 Indiana, 580, it was held: "Where Real estate is coveyed to a railway company, for and in consideration of the permanent location and construction of the depot of said railroad thereon, and such depot is constructed upon said real estate, but is subsequently removed and erected upon other land, the removal constitutes a breach of the implied condition subsequent contained in such deed, and such real estate reverts to the grantor."

In this last case, it is called a condition subsequent. Now, the distinction between a base fee and an estate on condition subsequent is not recognized by authority, but is well founded in reason, resting on the broad distinction between a condition and a limitation, and is this: In the case of an estate on condition subsequent, when it is once vested in the grantee, the estate can be destroyed only by a concurrence of two things, one of which is an active proceeding on the part of the grantor, there must be a breach of the condition and an entry to take advantage of the forfeiture, whereas, in the case of a base fee, the qualification, or the circumstance, upon whose existence or non-existence the estate depends, enters into the limitation itself, becomes an integral part of the very estate; and when the state of affairs upon whose continuance the estate is conditioned and limited comes to an end, the estate itselfipso facto ceases. (Leading cases in American Law of Real Property, Vol. 2, 19-29.)

And if it were held that the estate of the Cherokee Nation in the Cherokee outlet is an estate upon a condition subsequent, that is, that it shall continue so long as it shall be usedas an outlet, the same construction must follow as to the use of the land, and it could not lawfully be used for any other purpose than that of an outlet. Any other use would be a breach of the condition, for which the United States might enter and declare a forfeiture.

As the Cherokee Nation, then, could not lawfully, and of right, use any part of the Cherokee outlet for the purpose of quarrying, selling and shipping stone found therein, it could not by license authorize the complainants in this suit to operate the stone quarry, and to sell and ship the stone, in compliance with contracts such as are stated in the bill of complaint.

If the lands in the Cherokee outlet can lawfully be used for the purposes of a stone quarry, they may be used for farming and other purposes as well, and the Cherokees may settle upon and occupy them as freely as they do their home lands, and the distinction between the perpetual outlet west and the permanenthome, so scrupulously maintained in the several treaties, and in the patent of 1838, would be completely nullified. Such an event was not contemplated by the parties, when the treaties were concluded and the patent issued.

Nor are the rights of the Cherokee Nation in the use of the Cherokee outlet, enlarged by the treaty of 1866. That treaty provides:

"Article 16. The United States may settle friendly Indians in any part of the Cherokee country west of 96° to be taken in a compact form in quantity not exceeding 160 acres for each member of each of said tribes thus to be settled; the boundaries of each of said districts to be distinctly marked, and the land conveyed in fee simple to each of said tribes to be held in common or by their members in severalty, as the United States may decide.

"Said lands thus disposed of to be paid for to the Cherokee Nation at such price as may be agreed upon between the said parties in interest, subject to the approval of the president, and if they should not agree, then the price to be fixed by the president.

"The Cherokee Nation to retain the right of possession of and jurisdiction over all of said country west of 96° of longitude until thus sold and occupied, after which their jurisdiction and right of possession to terminate forever as to each of said districts thus sold and occupied."

By operation of this treaty, the title of the Cherokee Nation to the lands in the Cherokee outlet is made subject to extinguishment in favor of friendly tribes of Indians to be settled there by the United States; and in consequence of such agreement, the Osages, and several other tribes, have acquired title to large tracts of land in the eastern end of the outlet, thus effectually destroying the use of the outlet as an outlet to the Cherokee Nation. But, as to the lands not sold, the Cherokee Nation still retains its possession and jurisdiction, being the same possession and jurisdiction which it had under the prior treaties, and the patent of 1838.

And the provision of this treaty, that the United States may settle friendly tribes of Indians in any part of the Cherokee Outlet, clearly showing that, at the time the treaty was made, the Cherokee Nation did not claim the right, under the prior treaties, and the patent of 1838, to settle upon and occupy the outlet as a home or that they had any other use in it than that of an outlet.

As said by Judge Brewer; in United States v. Soule, supra, what was guaranteed to the Cherokee Nation was an outlet, "not territory for residence, but for passage ground, over which the Cherokees might pass to all the unoccupied domain west." To give them the right to settle upon and cultivate the outlet, and to operate stone quarries and remove and sell mineral, is an unwarranted extension of the guaranty, which cannot be upheld.

And if the Cherokee Nation has ceased to use the outlet,as an outlet, the cesser of the use has terminated their estate, and the lands have reverted to the United States. But whether there has been a cesser of the use is rather a political than a judicial question, which should be settled by congress and the chief executive of the nation. And if the lands have been abandoned as an outlet, and subjected to other uses by the Cherokee Nation, or with their consent and by their authority, their estate has terminated and they have reverted to the United States.

It follows, from the conclusion reached as to the rights of the Cherokee Nation in the Cherokee Outlet, that the complainants, who claim under a license from the Cherokee Nation, have no right to operate the stone quarry in question, and that their acts in doing so are wrongful; and a court of equity will not lend its aid to protect them in a wrongful act; and, in view of the conclusion reached upon the principal question involved, it is unnecessary to consider the other questions argued. The application for a temporary injunction will be denied, and the restraining order dissolved.

Injunction denied.