Indian chieftain. [volume] (Vinita, Indian Territory [Okla.]) 1882-1902, 1895-10-31

Oy WHICH the OullulngS are 10 De
regarded as personal property the
law will so regard them and carry
their intentions into effect. Let
US consider therefore what is the
intention of the Cherokee nation
and the owner of the improve
ments put upon lands belonging TO
the nation. That intention is de-
rived from Sec 2 of Art. l of the
constitution of the nation which is
as follows:
Section , The lands of the Cherokee ma
tion shall remain common property; but the
improvements made thereon and in posses
sion of the citizen of the nation are the eN-
elusive and indefeasi5le property of the citi-
zen respectively who made or may rightfully
be i'm possession of them; provided that the
| citizens of the nation possesses exclusive and
indefeasibe right to their improvements. as
expressed i'm this article. shall possess no
| right OF power to dispose of their improve
ments in any manner whatever. to the United
States. individual states. or to individual
citizens thereof etc.
This article of the Cherokee
constitution was quoted in the
brief of the counsel for the admin
istratrix and is relied upon by him
in connection with other provisions
of the constitution and of the laws
of the nation as presenting insur-
mountable difficulties in the way
of the distribution of the property
of the estate in question. But |
have quoted it tor a different pur-
pose. / desire to call attention to
the peculiar and expressive lang
uage of this article. The words,
exclusive and indefeasible, are
are especially significant. An IN
defeasible title is title which can
not be defeated. 1t means in this
connection that the owner of the
improvements on Cherokee lands
cannot without his consent be de-
feated as 20 his title or deprived of
his property. The Cherokee ma
tion has placed it beyond its power
to take to itself this property or to
permit others to despoil him of it.
Tine word exclusive" has also a
very marked significance in this
connection. Who is excluded
from ownership of these improve
ments? 1t is undeniable that the
owner may alienate or sell his i'm
provements to a citizen of the
Cherokee nation. Hence, other
citizens of the Cherokee nation are
not excluded from owning improve
ments en- land. But the United
States, individual states and indi-
vidual citizens of states are abso-
lutely excluded by the terms of
the article. But the Cherokee ma
ton is clearly and Enthusiastically
excluded from owning improve
ments on the lands of the nation.
As the nation which owns the soil
is excluded from the ownership of
the improvements, and as the
owner of such improvements has a
title which cannot be defeated in
such Improvements it follows that
the ownership of the improve
ments and the land is forever
separated by the mutual agreement
OF all the parties concerned. The
improvements, therefore, upon the
lands of the Cherokee nation can
not be owned by the owner of the
soil and if they cannot be owned
by the owner of the soil they are
forever 10 remain as personal prop
erty This is the intention of the
parties and as this criterion by
which the character of realty and
personally is stamped upon the
lands and Improvements, the land
upon the one hand and realty and
the improvements upon the other
are personal property.
IL a man. 10y permission of another. erect
house upon another's land. it will. il the
builder have no estate i'm the same. be the
personal property of the builder.--Washburn
on Real Property. p 3; Aldrich vs.. Parsons.
y. H.. 5a5; osgood vs.. Howard. Greene.
AZ; Russell vs.. Richards. Fairf.. i29; Ash
mum vs.. Williams. Pick. i02; Doty vs.. Cor
ham 5 Pick. 4s7; Dame vs.. Dame. 3s n. H..
40; and cases cited p. i3l; Mott vs.. Palmer,
1 Comst., 51; Rogers vs. Woodbury.. Is
Pick. 156.
The rule here laid down by Mr..
Washburn is so well sustained by
all the authorities cited in this
opinion that it may be regarded as
the law governing in such cases.
Applying this rule to the case
under consideration we find, that
the owner of the land in question
was the Cherokee nation, and that
the nation was, by constitutional
provision forever excluded from
asserting any ownership in the
buildings and other improvements
on the land; that the buildings and
other Improvements were the ex-
elusive and inefeasible property of
the person who built or made
them; that the builder of the build
ings ard other improvements had
no estate in the land; and that the
consent of all parties concerned
was given TO such separate owner
ship. Under such conditions the
buildings and other improvements
are the personal property of the
person who builds or makes them;
that the builder of the buildings
and other improvements had no
estate in the land; and that the
consent of all parties concerned
was given to such separate owner
ship. Under such conditions the
buildings and other improvements
are the personal property of the
person who builds or makes them.
And therefore, all the buildings
and other improvements, in con-
troversy in this case whether for
the purpose of agriculture, or for
trade or manufacture, passed, on
the death of the intestate, to the