Indian chieftain. [volume] (Vinita, Indian Territory [Okla.]) 1882-1902, 1894-10-04

thereon, after the passage of the
act reserving the town site to the
use of the nation and after the sur
vey and dedication by the commits
sioners of the right. of-way to the
railroad company.
The plaintiffs in error assent that
under the laws OF the nation
citizen has the right TO occupy any
part of the public domain of the
nation not already taken up by
another citizen, and that as the
parcel of land in controversy was
not actually occupied by the tracks
or other structures of the railroad
company, and as it was in their
opinion not necessary for such
purposes, they had the right to
appropriate it to their own use.
But the land had been previously
dedicated and appropriated under
the treaty and by the act of the
council to the use of the railroad
company. The fee of lands in the
Cherokee Nation is in the nation.
Whatever right a citizen has to
occupy any particular parcel Of the
public lands of the nation he must
acquire under and in pursuance of
the laws Of the nation, and not in
defiance of them. He cannot enter
upon land previously dedicated or
appropriated to some other person
or to some specific use. By act OF
the national council this mile
square was segregated from the
public domain of the nation and
reserved to the nation for a special
use and TO be disposed of in a par
ticular manner. 1t was believed
the land in proximity to the rail.
road stations would have a special
value for townsites. A mile square
at each station was therefore re-
served to the nation to be laid
out in lots and blocks, not to be
settled upon by the first conner, as
is the case in the public domain
generally, but the lots to be sold to
the highest bidder and the pnr-
chase money paid into the treasury
of the nation as was done. The
authority of the commissioners to
lay out the town necessarily made
it their duty to lay out and fix the
boundaries of the land, in the
town, set off to the railroad com
pany for its stations, side tracks,
stock yards and other like pur-
poses. This was done, and their
action has been acquiesced in and
approved by the authorities of the
nation, legislative and executive.
Whether there was any necessity
for making the right.of-way 400
feet wide was a question between
the nation and the railroad com.
pany. Under the treaty the rail-
road company had a right to de-
mand 400 feet when that much was
indispensable to the full enjoyment
of its franchise. The citizen can
not settle on the right t-of-way, and
when his right to do so is chal-
lenged reply that the right. t.of-way
set off TO the company was in eX-
cess of its needs, and claim the
right to settle upon it as a part of
the public domain of the nation.
1t is clear that it was never con.
templated that there should be
within the limits of these towns
any unappropriated public domain
subject to settlement under the
general law on that subject. The
disposition of the land within the
limits OF these townsites is regu-
lated by laws specially to them.
1t is not material to enquire
whether the railroad company ac-
quired the fee in this ground or
only an easement. In either case
it acquired a right to the exclusive
possession and use of it as against
defendants.
The judgment Of the lower court
is affirmed.
Filed September 10, 1894.