The review by this Court of final judgments in civil cases of
the Supreme Court of the Territory of Oklahoma is not controlled by
the act of 1874 in regard to territorial courts, but by § 9 of the
Act of May 2, 1890, 26 Stat. 81, 85, providing the territorial
government for Oklahoma, and in an action at law where a jury has
been waived the review is by writ of error as in the case of a
similar judgment of a circuit court, and not by appeal.
Where no formal judgment has been entered, the plea of
res
judicata has no foundation; neither the verdict of a jury nor
the findings of a court, even though in a prior action, upon the
precise point involved in a subsequent action and between the same
parties constitutes a bar.
There was no permit for entry of lands in Oklahoma for town
sites under the act of 1889 or until the Town Site Act was passed
May 14, 1890, and an agreement among a portion of the people who on
April 22, 1889, chose lots upon a projected town site did not and
could not vest an absolute title in persons selecting lots or make
a plat or map of town final or conclusive; but the selectors took
their lots subject to changes and conditions that might obtain --
in this case, as to location of streets -- when the township patent
was issued to, and a map finally approved by, the township trustees
under the Act of May 14, 1890.
The facts are stated in the opinion.
Page 196 U. S. 531
MR. JUSTICE PECKHAM delivered the opinion of the Court.
On the twenty-second day of September, 1899, this action of
ejectment was commenced by defendant in error in the District Court
of the Third Judicial District of Oklahoma Territory, in Oklahoma
County. It was brought to recover lands situated in a public street
in the City of Oklahoma City. Judgment was entered for the
defendant in error for the recovery of the land, and that judgment
was affirmed by the supreme court of the territory, and the
plaintiff in error has brought the case here, both by writ of error
and appeal, taking both courses as a precaution, in order to bring
the case before us. It was tried by the court, a jury having been
waived by the parties, and the defendant in error contends that,
where a case is thus tried in a territorial court, an appeal to
this Court is the only proper proceeding to obtain a review. Act of
Congress, 1874, 18 Stat. 27, 28. The contention of defendant is not
correct in this case. The manner of reviewing judgments, in civil
cases, of the Supreme Court of the Territory of Oklahoma is
specially provided for by the ninth section of the Act of May 2,
1890, 26 Stat. 81, 85, providing a territorial government for
Oklahoma, and is not governed by the act of Congress of 1874.
Comstock v. Eagleton, 196 U. S. 99. The
ninth section of the act of 1890 provides that writs of error and
appeal from the final decision of the supreme court of the
territory will be allowed and may be taken to the Supreme
Page 196 U. S. 532
Court of the United States "in the same manner, and under the
same regulations, as from the circuit courts of the United States,"
and it was held in the above case that final judgment in an action
at law in the circuit court of the United States can only be
reviewed by writ of error. The assumption that, because this case
was tried before the court, a jury having been waived by consent,
that therefore it ought to go up by appeal is a mistaken one. In
Deland v. Platte County, 155 U. S. 221, the
case was an action at law where a jury had been waived and trial
had before the court. Nevertheless it was held that, as it was an
action at law, and the case came from a circuit court of the United
States, it could only be reviewed by this Court on writ of error.
This case must therefore be reviewed by writ of error, because it
is an action at law, although tried by the court upon a waiver of a
jury. The record shows a sufficient bill of exceptions, however,
and the case is to be reviewed upon the record as thus
presented.
Upon the trial, for the purpose of proving the issue upon his
part, by means of evidence of a former adjudication, the plaintiff
introduced in evidence what he contended was a judgment in his
favor for the recovery of the same land in an action in which he
was plaintiff and Edgar N. Sweet
et al., town-site
trustees, defendants, and which was entered in the District Court
of the Second Judicial District, County of Canadian, Territory of
Oklahoma, on or before May 11, 1892, and recorded on the fourteenth
day of May, 1892, in the County of Oklahoma. The plaintiff argued
that the defendant (plaintiff in error) in the case at bar was
bound as a privy by the adjudication in the former action. The
paper was received in evidence by the court, and it is set forth at
length in the record. It is evidently nothing but a finding of
facts by the judge trying the cause. There was also a paper offered
and received in evidence, signed by the trial judge in the same
case, and dated the thirteenth day of October, 1893. This was an
order made in the case by him at Kingfisher, in Kingfisher County,
and was entered in that county on the thirteenth day of October,
1893 -- the
Page 196 U. S. 533
day of its date. The order directs the defendant to make,
execute, and deliver to Frank McMaster, the plaintiff, a trustee's
deed, "as decreed by this court on the fourteenth day of November,
1892, of the following described premises and real estate." It is
attempted to piece these two documents together, the finding of
facts filed in Canadian County and thereafter recorded in the
County of Oklahoma, and the order made in Kingfisher County, and
filed therein October 13, 1893, and to regard the whole as a
judgment. It is plain that there has been no formal judgment
entered in the case, and that these two separate documents, filed
in different clerks' offices, cannot be pieced together and made a
formal and complete judgment. Without a judgment the plea of
res judicata has no foundation, and neither the verdict of
a jury nor the findings of a court, even though in a prior action,
upon the precise point involved in subsequent action and between
the same parties constitutes a bar. In other words, the thing
adjudged must be by a judgment. A verdict or finding of the court
alone is not sufficient. The reason stated is that the judgment is
the bar, and not the preliminary determination of the court or
jury. It may be that the verdict was set aside, or the finding of
facts amended, reconsidered, or themselves set aside, or a new
trial granted. The judgment alone is the foundation for the bar.
Springer v. Bien, 128 N.Y. 99.
Without resort to this (asserted) judgment in the action against
the town-site trustees, it is not urged that the defendant in error
made out his case upon the trial. There was no judgment, and the
"finding of facts" should not have been held to be such. For the
error in the admission of the so-called judgment, the case must be
reversed.
We do not decide, even if there had been a technical and formal
judgment entered, that such a judgment would be conclusive in favor
of the plaintiff upon the trial of this action against the City of
Oklahoma City. Whether the plaintiff in error would be regarded as
a privy to such judgment, and therefore bound by it, it is not now
necessary to decide.
Page 196 U. S. 534
The Court is, however, indisposed to let the case rest upon the
error pointed out. The question will arise upon another trial as to
the right of the plaintiff to recover upon the facts stated in the
finding of facts in the action against the town-site trustees. We
think it proper to now look into those findings simply for the
purpose of determining whether, assuming them to be facts, the
plaintiff below made out a case which would entitle him to recover
the land in suit. The supreme court of the territory is of opinion
that he did. Among the facts found on the trial of the case against
the trustees are the following:
The trustees, appointed under the Act of May 14, 1890, entered
the land in the local land office at Oklahoma City, September 3,
1890, covering, among other lots, the premises in question, "in
trust, for the use and benefit of the occupants thereof." A patent
from the United States was, on the first of October, 1890, issued
to the trustees for the land (covering over 160 acres), which
patent was, by its terms, in trust for the occupants of the town
site, according to their respective interests. At neither date was
the plaintiff below an occupant of the land in suit.
Prior to this time, and on the twenty-second day of April, 1889,
the land had been opened for settlement under the proclamation of
the President, pursuant to the Act of Congress approved March 2,
1889. 25 Stat. 980, § 13, page 1005. The land in question, together
with other lots, was settled upon and occupied as a town site
shortly after noon of April 22, 1889, and has continued to be and
is still so held and occupied.
A portion of the occupants of the tract, on the twenty-second
day of April, 1889, tacitly agreed to a plat of the land into lots,
blocks, streets, and alleys, and the plaintiff on that day legally
entered upon and occupied the piece or parcel of land particularly
described in the plat as his lots, and being the land recovered by
him in this action. Subsequently to such occupancy, and prior to
the entry of the land by the trustees, and to the conveyance by the
government to the trustees, a different plat, making a different
arrangement of
Page 196 U. S. 535
streets, etc., was adopted and enforced by the parties occupying
the town site. By the latter plat, the parcel of land claimed by
the plaintiff was thrown into the street called Grand Avenue. The
plaintiff did not consent, but objected to the second plat, and has
never consented thereto or acquiesced therein. He was, by the city
authorities, forcibly removed from the parcel of ground selected by
him, and has since that time been forcibly kept from the occupancy
thereof.
On the twenty-first day of April, 1891, he applied to the
trustees of the city for a deed to the lot, but they declined to
award it. The City of Oklahoma City has appropriated the land as a
street, and did so appropriate the same long prior to the
conveyance of the land by the United States to the trustees. The
plaintiff was not an occupant of the tract at the time the United
States conveyed the same to the trustees, but it was at the time
used and occupied as a street by the city.
On these facts, the plaintiff below did not make out his case.
There was no unconditional vesting of title to the particular lot
chosen by him on the twenty-second of April, by tacit agreement of
some of the settlers, even though a map were made of the land
showing the plaintiff in possession of a lot not in any public
street of the city. Subsequently to the agreement upon a plat by
some of the settlers, and prior to the conveyance to the trustees
by the patent from the United States (October 1, 1890), the plat
was altered and another plat adopted, by which the lot selected by
the defendant in error became a part of a public street in the
city. The defendant in error, in common with all others, chose lots
upon a site which was intended as a town site, and took his lot
subject to the conditions which might thereafter obtain. There was
no portion of the Territory of Oklahoma open to settlement prior to
the date fixed by the proclamation of the President under the Act
of March 2, 1889. That date was April 22, 1889. 26 Stat. 1544. It
was provided by the act that, after the proclamation, and not
before the Secretary of the Interior might permit the entry of land
for town sites under Rev.Stat. §§ 2387,
Page 196 U. S. 536
2388. The Secretary of the Interior gave no permit for entry of
lands for town sites under the act of 1889. Again the sections of
the Revised Statutes plainly refer to an organized state or
territory, and Oklahoma was neither on the twenty-second day of
April, 1889. It was organized as a territory May 2, 1890, 26 Stat.
81, and the special act to provide for town-site entries in
Oklahoma was not passed until May 17, 1890. 26 Stat. 109.
Regulations for carrying out that act were promulgated by the
Secretary of the Interior June 18 and July 10, 1890. 10 L.D. 666;
11 L.D. 24. It may be assumed that, on April 22, 1889, it was
supposed that the land now embraced in the City of Oklahoma City
would be a town site, as it was stated on the argument at bar, and
not disputed, that there was at that date a railroad station here,
and there was every probability that a town would exist at that
site. But there was no law for a present selection of land or lots
for town sites on the twenty-second day of April, 1889. There was
but a supposition that land actually selected on that day for a
town site would eventually be approved. On May 14, 1890, more than
a year after the lands were open to entry and just twelve days
after the act was passed providing for the temporary government of
the territory, an act providing for town-sites entries was passed.
26 Stat. 109. That act provided for trustees, to be appointed by
the Secretary of the Interior, who were authorized to make entry
for town sites on so much of the public lands situate in the
Territory of Oklahoma, and then open to settlement, as might be
necessary to embrace all the legal subdivisions covered by actual
occupancy, for the purpose of trade and business, not exceeding
1280 acres in each case, for the several use and benefit of the
occupants thereof, and the entry was to be made under the
provisions of § 2387 of the Revised Statutes, as near as might be,
and when such entry was made, the Secretary of the Interior was to
provide regulations for the proper execution of the trust by such
trustees, including the survey of the land into streets, alleys,
squares, blocks, and lots when necessary,
Page 196 U. S. 537
or the approval of such survey as may already have been made by
the inhabitants thereof, the assessment upon the lots of such sum
as may be necessary to pay for the land embraced in such town site,
the costs of the survey, the conveyances of lots, and other
necessary expenses, including the compensation of the trustees. The
maps and plats of streets, etc., to be surveyed were to be approved
by the trustees, or they might approve the survey already made by
the inhabitants thereof.
It seems therefore plain that a mere agreement among a portion
of the people selecting lots for or in a projected town site on
April 22, 1889, did not and could not vest an absolute and
unconditional title in the persons who thus selected such lots. The
persons going on the land on that date, and under the circumstances
then existing, did not have any law for the vesting of title to a
lot as within a town site by the mere selection of land at that
time. There was general confusion, and there were thousands of
people entering the territory embraced within the proclamation, on
that date. In
Guthrie v. Territory, 1 Okl. 188, 194, the
supreme court of the territory, in speaking of these crowds,
said:
"They were aggregations of people, associated together for
purposes of mutual benefit and protection. Without any statute law,
they became a law unto themselves, and adopted the forms of law and
government common among civilized people, and enforced their
authority by the power of public sentiment. They had no legal
existence; they were nonentities; they could not bind themselves by
contracts, or bind anyone else."
The whole thing was experimental and conditional.
The selection of the lots in a proposed town site, made on the
twenty-second day of April, 1889, not being final, neither was the
plat or map of the proposed town site, as then, or soon after,
agreed upon by some of the people, final or conclusive. The
agreement upon the plat or map was liable to alteration; there was
no absolute right to any particular lot, as it was
Page 196 U. S. 538
subject to future survey. It was all in the air. When,
thereafter, the trustees, under the statute, made a survey of the
land into the streets, etc., or approved a survey already made, by
which the plaintiff's lot was placed in the public street of the
city, it was his misfortune, where all had taken their chances,
that he should draw a blank. The approval of a survey by the
trustees, which placed this lot in a public street of the city,
gives to the city the right to the possession of it, and to keep it
open as such public street. The plaintiff, not being an occupant of
the lot at the time that the trustees made entry of the land, nor
when the conveyance was made to the trustees by the government, was
not one of the parties included in the statute, which directed the
entry for the town sites to be made by the trustees "for the
several use and benefit of the occupants thereof."
The supreme court, in
Guthrie v. Beamer, 3 Okl. 652,
has held substantially the same views which we now state in the
case at bar. We are unable to see any real difference in the
principle governing the two cases, and we think the
Beamer
case was rightly decided.
The judgment of the Supreme Court of Oklahoma must be reversed,
and the case remanded with directions for a new trial.
Reversed.