Indian chieftain. [volume] (Vinita, Indian Territory [Okla.]) 1882-1902, 1894-10-04
RIGHT OF WAY DECISION
DELIVERED BY JUDGE oALD-
WELL AT ST. PAUL.
Under the Treaty and the Ohero-
kee Law It is Held that the
Railroad is Entitled to What it
Claims.

term, n. ~. lOJ4.
L. B. Bell and II. II. Trott, plain.
tiffs in error, VS.. The A. & P. r. r.
Co. and the st. l.. & s. f. R'y Co.,
defendants in error.
In error to the united States
court in the Indian Territory.
Mr.. s. s. Fears and w. 7. Hutch
ings filed brief for plaintiffs in
error. Mr.. S. f. Parker (Mr. e. d.
Kenna was with him on the brief)
for defendants in error.
Before Caldwell, Sanborn and
Thayer, circuit judges. Caldwell, ,
circuit judge delivered the opinion
of the court.
This action was brought in the
United States court for the first
division of the Indian Territory by
the defendants in error, the A. &
P. r. r. Co. and st. L. & +. R'y
Co. to recover the possession Of a
small parcel OF ground particularly
described in the complaint with
the improvements thereon, situated
in Vinita, G. N, 1T, the plaintiffs
alleging that the land claimed con-
stituted a part of the right-of-way
of plaintiffs, the A. & p. r. r. Co.
There was judgment for the plain
tiffs In the lower court, and the
defendants sued out this writ of
error. 1t is assigned for error that
the court refused to instruct the
jury to return a verdict for the
plaintiffs.
Article IL of the treaty between
the United States and Cherokee
Nation of July 10, 1866 Gu. S. Stat,
799) provides, that,
"The Cherokee Nation hereby
grant right-of. way not exceeding
200 feet wide, except at stations,
switches, water stations, or cross
ings of rivers, where more may be
indispensable to the full enjoy
ment Of the franchise herein
granted, and then only 200 add.
tional feet shall be taken, and only
for such length as may be abso-
lutely necessary, through all their
lands, to any company or corpora
ton which shall be duly authorized
by congress to construct a railroad
from any point no, tn to any point
south, and from any point east to
any point west of and which may
pass through the Cherokee Nation.
Said company or corporation and
their employees and laborers, while
constructing and repairing the
same and in operating said road or
roads, including all necessary
agents on the line, at stations,
switches, water tanks and all others
necessary to the successful opera
tion of a railroad, shall be pro-
tected in the discharge of their
duties, and at all times subject to
the Indian inter course laws, now
or which may hereafter be enacted
and be in force in the Cherokee
Nation"
The plaintiff, the A. & P. r. r.
Co., was incorporated by act of
congress July 27, 1866, IA U. S.
Stat. 1922 and authorized to con-
struct a railroad through the Cher
okee Nation upon line and in a
direction that entitled it to the
benefits of the provisions OF acticle
II of the treaty above quoted. The
road was constructed through the
nation, and the parties have filed
stipulation to the effect that the
plaintiffs, the St. l.. e. S. F. R'y
Co, was operating the road for the
A. & p. r. r. Co, and that the
two companies were jointly en-
titled to the possession of all the
property of the A. & P. K. r. Co.
In the Indian Territory. By an act
Of the national council of the Cher
okee Nation, approved December
IA, 1880, there was reserved to the
Cherokee Nation at each and every
station along the line of the rail
road through the lands of the Cher
okee Nation one mile square, to
include such station, in such man
ner as may be deemed advisable,
Tor town sites. Provision was
made for the appointment of three
commissioners, "whose duty it
shall be to locate and survey said
townsites and sell the lots thereof 4
4 y and report to the principal
chief, the locations, surveys and
sales of lots" 4 4 \ on the first
day of October of each year. Under
this act three commissioners were
appointed IN 1871 and proceeded
to locate and lay off the towns at
the railroad stations. Among the
towns so surveyed and laid off was
Downingville, now called Vinita.
The A. K P. r. r. Co. had con-
structed its road TO and through
this place where it crossed the NJ
X. & 7. R'y, the north and south
railroad, constructed under this
treaty. The commissioners located
and surveyed the mile square at
Vinita station and laid it off into
lots, blocks, streets, alleys, parks
aud railroad rights of-way. They
made a plat Of the town as laid out,
which together with their report,
they filed with the principal chief
Of The nation as required by law,
and from that time this plat has
been accepted as an official plat OF
the town by the nation and public
The nation sold the lots in the
town and the purchasers bought
them according to this plat aad in
reliance upon it. IL has become a
muniment Of title to every pro-
perty holder in the town.
This plat shows that the commits
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