(203 P.)

plied as if the deceased had received title | to remove to the Indian Territory, the Supto his allotment and died seised thereof. plemental Treaty with the Choctaws and Brady v. Sizemore et al., 33 Okl. 169, 124 Chickasaws hereinbefore referred to conPac. 615; Shellenbarger v. Fewel, 34 Okl. 79, tained the conditions above mentioned, and 124 Pac. 617; McKee v. Henley, 201 Fed. 74, those Choctaws who removed to the Indian 119 C. C. A. 412; Bruner v. Nordmeyer, 64 Territory after the ratification of such Okl. 163, 166 Pac. 126; Hamilton v. Bahn-treaty were designated Mississippi Choctaws. sen, 75 Okl. 216, 183 Pac. 413.

[2] From the foregoing authorities it must be held that the law in force at the date of the selection of the allotment, and not the law in force at the date of the patent, governs as to the descent of the land of a member of the Choctaw Tribe of Indians.

[3] Passing to the second proposition presented, we have been cited to no authority holding, or even indicating, that the lands allotted to a Mississippi Choctaw who died prior to statehood, without issue, and whose selection was made prior to statehood, was a new acquisition, and we can think of no reason why it should be so held. It is true that there were conditions imposed upon the Mississippi Choctaws by the Supplemental Treaty not imposed upon the native Choctaw, among which were the continuous bona fide residence within the Indian Territory for three years, due proof of such residence, and a forfeiture of all rights for a failure to make proof of such residence within four years, but, when these conditions had been complied with, the Mississippi Choctaw was placed on an equality with, and was entitled to the same privileges, accorded the same rights, and governed by the same laws as, the native Choctaw. There can be no doubt of the ancestors or the Indian blood of the Mississippi Choctaws. They came from the country originally occupied by the ancestors

of the native Choctaws, and are of the same tribal blood.

It cannot be said that the land allotted to Linnie Reed was a mere gift. She acquired her rights thereto because of the blood of her tribal parents. The land allotted to her cannot be termed a new acquisition by her, but should be termed as an inheritance from her parents as members of the tribe (Shulthis v. McDougal, 170 Fed. 529, 95 C. C. A. 615; Pigeon v. Buck, 38 Okl. 101, 131 Pac. 1083; Id., 237 U. S. 386, 35 Sup. Ct. 608, 59 L. Ed. 1007; McDougal v. McKay, 43 Okl. 261, 142 Pac. 987; Id., 237 U. S. 372, 35 Sup. Ct. 605, 59 L. Ed. 1001; Thorne v. Cone et al., 47 Okl. 781, 150 Pac. 701; Whitener v. Moss, 175 Pac. 223; Dailey v. Benn [No. 9646] 198 Pac. 323, not yet officially reported); and the estate being ancestral, upon her death one-half of said estate ascended to her father and one-half to her mother. Upon the death of her father, Kit Reed, his estate ascended to his posthumous child, and upon the death of said child the estate that came to it by its father ascended to the heirs of the father (section 2531, Mansfield's Statutes of Arkansas; Thorne v. Cone et al., supra; Finley v. American Trust Co. et al., 51 Okl. 489, 151 Pac. 865; Kelley v. McGuire, 15 Ark 555); and, as plaintiffs are the heirs of the father, the title to one-half of the land involved passed to them.

The defendants contend that the determi

nation of heirship had in Johnston county on January 30, 1914, upon the estate of Kit Reed, should be res adjudicata, as to the lands in question, inasmuch as the plaintiffs claim that the interest they are contending for came through the blood of Kit Reed. It does not appear that any evidence of a judgment of the Johnston county court, determining heirship was introduced, and no mention thereof was made in the agreed statement of facts. The defendants pleaded a judgment of the district court of Johnston county, determining the heirs of Kit Reed, deceased, but made no effort to introduce such Therefore it is unnecessary to pass upon the validity or effect of this judgment.

The first legislation looking to the removal of the Choctaws from Mississippi to the territory which is now embraced within the state of Oklahoma was the treaty of October 18, 1820 (7 Stat. 210). By this treaty the Choctaws were given lands in the Indian Territory in exchange for their lands in Mississippi, and on September 27, 1830 (7 Stat. 333), the second treaty was ratified between the United States and the Choctaws, carrying out the terms of the original treaty, exchanging their lands in Mississippi for lands in the Indian Territory, and in 1835 the mi-judgment in evidence. gration from Mississippi to the Indian Territory was commenced, and was continued for a number of years, and, in fact, Mississippi Indians were permitted to acquire homes in the Indian Territory as members of the Choctaw Tribe of Indians until 1902. order to hasten the removal to this country of those who had remained in Mississippi, and to provide homes for those who desired

In

The judgment of the trial court is reversed, and the cause remanded for further proceedings not inconsistent with the views herein expressed.

HARRISON, C. J., and PITCHFORD, McNEILL, and ELTING, JJ., concur.

(84 Okl. 227)

improvement of what is known as Harndale

INTERSTATE BUILDING & LOAN CO. et addition, in Oklahoma City, lying between al. v. OKLAHOMA CITY et al.

(No. 9824.) (Supreme Court of Oklahoma. March 8, 1921. Rehearing Denied Jan. 10, 1922.)

(Syllabus by the Court.)

1. Appeal and error 1009 (4)-Findings in equity will not be disturbed unless clearly against weight of evidence.

In a case purely of equitable cognizance the findings of fact by the trial court will not be disturbed by this court, unless the same are clearly against the weight of the evidence.

2. Equity 39(1)-Court having obtained jurisdiction of controversy will retain it for the purpose of administering complete relief. A court of equity which has obtained jurisdiction of the controversy on any ground or for any purpose will retain such jurisdiction for the purpose of administering complete relief and doing entire justice with respect to the subject-matter, and avoid multiplicity of

suits.

3. Municipal corporations 365-Commissioners' acceptance of street work held conclusive and binding on property owners.

Where, in compliance with the statute the city commissioners award a contract for paving streets and the commissioners, on a hearing regularly had for that purpose, adjudge acceptance of the work over the protest of the abutting property owners, where there is nothing more than a dispute as to whether the work has been reasonably well done, such acceptance, in the absence of fraud, is conclusive and binding upon the property owners.

4. Municipal corporations 538-In matter Involving street assessments, judgment held to do equity for parties.

Record examined, and held, that the judgment of the trial court awards the parties that relief that each respectively is in equity and good conscience entitled to.

Miller, J., dissenting.

Classen boulevard on the west and Shartel avenue and Thirteenth street on the south and Sixteenth street on the north; that the city of Oklahoma City, acting under the provisions of the paving law, directed the improvement of these streets adopting the usual and customary proceedings authorized by law to make such improvements and eventually to levy assessments to pay the cost thereof.

The petition recites that on the 23d day of November, 1915, the mayor and commissioners of Oklahoma City authorized and directed the city engineer to prepare complete and accurate plans, specifications, and estimates for this paving, and did approve the same on the 30th day of November, 1915, and thereafter passed a resolution deeming it necessary to pave the streets embraced in

this district. On the 8th day of December, 1915, the mayor and commissioners adopted what was known as national paving specifi cations as a part of the general specifications of the city for asphalt pavement. This resolution adopting the national paving specifications was not embraced within the engineer's specifications as originally adopted on November 30th. Thereafter the customary proceedings were had leading up to the execution of a contract with the National Paving Company, by the terms of which it was to construct the improvement in strict accordance with the plans and specifications therefor, and in a good and workmanlike manner, for all of which the contractor, National Paving Company, executed contractor's bond, and the customary statutory bond, and the maintenance bond.

Thereafter, on the 19th day of September, 1916, a resolution was adopted appointing appraisers to apportion and appraise the benefits arising from said work of construc

Appeal from District Court, Oklahoma tion; and on the 27th day of February, County; Geo. H. Clark, Judge.

Action by the Interstate Building & Loan Company and others against the City of Oklahoma City and others, and from a judgment therein the plaintiffs appeal. Affirmed, with directions.

1917, the mayor and commissioners passed a resolution fixing a day for hearing of protest and setting the time for March 27. 1917.

The petition then recites that the report of the board of appraisers omitted an appraisement and assessment against five parks in this addition, the property of the

G. A. Paul, of Oklahoma City, for plain- city of Oklahoma City, and spread the entiffs in error.

J. S. Ross, A. F. Decker, B. D. Shear, and Ames, Chambers, Lowe & Richardson, all of Oklahoma City, for defendants in error.

tire assessment over the property of the plaintiffs in error herein. As required by law, the plaintiffs in error appeared at the meeting of the commissioners as a reviewing board, and filed a written protest against the JOHNSON, J. The plaintiffs in error, as assessments so levied, expressly, however, plaintiffs below, filed their petition in the reserving in said protest the right to be district court of Oklahoma county, on the 3d heard further upon the question of the conday of October, 1917, which stated in sub-struction of the work in accordance with the stance that they were the owners of proper- specifications; the meeting of the commisty liable for assessments on account of the sioners as a reviewing board on the 27th day

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(203 P.)

of March, 1917, adjourned to April 10, 1917; the board did not meet on April 10, 1917, as a reviewing board, but did meet on April 27, 1917, as such reviewing board, and accepted the report of the appraisers and denied the protest of the plaintiffs in error; that on June 19, 1917, the city engineer was instructed to report at the next regular meeting whether or not the paving was laid according to the plans and specifications and whether or not the streets were in safe condition for travel; on July 3, 1917, the engineer and city chemist reported that the required amount of asphalt was used in the paving mix;. that thereupon by resolution the commissioners accepted the paving, and again on August 21, 1917, the commissioners accepted the paving.

The petition sets out two causes for relief; First, that the assessments levied by the board of appraisers, having omitted city property, was not a correct assessment; and, second, that the work of construction from its inception to its conclusion was not in accordance with the plans and specifications, and the acceptance thereof was over the protest of the property owners, plaintiffs in error herein, and such acceptance was arbitrary, entirely in disregard of the rights of the property owners, and prayed for an injunction to prevent the levy and collection of assessments against the property of the plaintiffs in error, except for such assessments as would embrace the work which was actually done in accordance with the plans and specifications, namely, grading, curbing, and drainage, in an amount not to exceed $12,000 to be apportioned to the property of the plaintiffs in error and to the city by reason of its ownership of the parks.

ties, he made certain findings of fact and conclusions of law, which were as follows:

"This cause came regularly on for trial on the 8th day of December, 1917, and thereupon, by agreement of counsel in open court, said

cause was submitted to the court for trial and for a final hearing upon the merits of said cause.

"The plaintiffs appeared in person and by their attorney, G. A. Paul, the defendant, the city of Oklahoma, appeared by its attorney, Bryan D. Shear, the National Paving Company appeared by its attorney, A. D. Decker, the American National Bank of Oklahoma City, Okl., appeared by its attorneys, Ames, Chambers, Lowe & Richardson, and the American Indemnity Company appeared by J. S. Ross, its attorney. Thereupon the plaintiffs and the defendants and the interpleaders respectively introduced their evidence upon the issues joined in said cause and rested their case. That the taking of evidence and the trial of said cause was confined from day to day from December 8, 1917, up to and including the 17th day of December, 1917, when the trial of said cause was finally concluded, and the same was submitted to the court for judgment, and the court, vised in the premises, finds that on January 27, after hearing the evidence and being fully ad1916, the city of Oklahoma City, Okl., entered into a contract with the National Paving Company for the paving of the streets and boulevards set forth in plaintiffs' petition in the city of Oklahoma City, Okl., and described as follows, to wit: Classen boulevard from the intersection of Thirteenth street, and Shartel avenue to the west line of Classen W. H. P. addition; Harnplace from the west line of Classen W. H. P. addition to the intersection of Sixteenth street and Western avenue; Harnplace from the east curb line of Western avenue to the south drive of Harnplace, from the west line of Shartel avenue to the north drive of Harnplace.

"The court finds that all of the proceedings The district court granted a temporary of the city commissioners, up to and including restraining order in said cause. Thereafter, the letting of the contract to pave the streets on the 6th day of December, 1917, the Amer- and boulevards in Harnplace as above described ican National Bank of Oklahoma City, hav- to the National Paving Company, were regular ing had leave to interplead, filed its answer and in accordance with law; that the National alleging that the National Paving Company Paving Company, after the execution of said complied with the terms of the contract for contract on January 27, 1916, entered upon the the construction of this improvement, and work of paving said streets and boulevards, and during the latter part of January or the first also alleged an interest which it had on ac- part of February, 1917, completed said paving count of an assignment of certain bonds and improvements; that thereafter the city thereafter to be issued. The city of Oklaho- commissioners duly appointed appraisers to apma City also filed its answer alleging that it portion and approve the benefits of said paving was not liable for the assessments against to the abutting owners, and said appraisers duly the parks, and in addition thereto that the filed their report of said appraisement and apwork was constructed in accordance with the portionment with said city commissioners; that thereafter said city commissioners, in accordplans and specifications. The National Pav-ance with law, gave the property owners notice ing Company adopted the answer of the de- of the hearing of said report, and on the 27th fendant city of Oklahoma City as its answer. day of March, 1917, the plaintiffs herein duly The plaintiffs below replied by general de- filed a protest against the approval of said apnial, and on the 7th day of December, 1917, praisers' report by said city commissioners; upon the issues joined, the case was tried that the protest of said plaintiffs was to the upon its merits and upon final hearing to the effect that said appraisers had not assessed against various tracts of land designated as parks in the dedication and plat of said addition any sums of money whatever for the benefits received from such paving, but it assessed the entire costs of said paving and improvements

court.

After hearing all the testimony in the case, the trial court rendered judgment, in which judgment, at the request of the par

(203 P.)

when said city commissioners shall have assessed all of the property abutting upon the said improvements and including said tracts of land designated as parks in the dedication and plat of said addition, for costs of said improvements in accordance with the benefits received as provided by law, and for the payment of the full contract price thereof, and said city commissioners shall issue its bonds in accordance with law and the said contract between said city and said paving company in the full amount of the contract price, it shall deliver the same to the said American National Bank as assignee of said paving company.

"It is further adjudged that the costs of this action be taxed equally one-half to the plaintiffs and one-half to the defendants, and interpleader.

"To all of which the plaintiffs and defendants

duly excepted, and said exceptions were by

The plaintiffs filed a timely motion for a abutting on said improvements, including new trial, which was as follows: said parks, in accordance with law for the benefit received.

"(5) That the court erred in holding that as a matter of law that the decision of the board of commissioners in the acceptance of the pav-city commissioners shall have assessed all of ing was final and conclusive on the court. the property abutting upon said improvements, and including said tracts of land des"(7) That the decision of the court was not ignated as parks, for the cost of the said imsustained by the evidence"