240 U.S.

467
36 S.Ct. 393
60 L.Ed. 752

E. B. JOHNSON, H. B. Johnson, and First National Bank

Building Company, Plffs. In Err.,
v.
F. E. RIDDLE.
No. 161.
Argued January 12, 1916.
Decided March 20, 1916.

Messrs. C. B. Ames and Alger Melton for plaintiffs in error.

[Argument of Counsel from page 468 intentionally omitted]
Messrs. Joseph W. Bailey, C. B. Stuart, A. C. Cruce, and W. A. Ledbetter
for defendant in error.
Mr. Justice Pitney delivered the opinion of the court:

This was an action of ejectment, commenced before the admission of

Oklahoma as a state, in the United States court for the southern district of the
Indian Territory, and brought to a conclusion in the state courts. There have
been many changes of interest pendente lite, and corresponding changes of
parties. The original plaintiffs were Riddle, now defendant in error, and one
Cook, whose interest Riddle has since acquired. The interests of the original
defendants have been acquired by plaintiffs in error through mesne
conveyances that will be stated below. The subject of the action is a town lot in
the town of Chickasha, in the Chickasaw district of the Choctaw Nation, to
which plaintiff claimed title by purchase under the town-site provisions of the
Atoka Agreement with the Choctaw and Chickasaw tribes, found in the act of
Congress known as the Curtis act (June 28, 1898, chap. 517, 30 Stat. at L. 495,
505, 508), followed by a patent executed, after the commencement of the
action, in accordance with the supplemental agreement with the same tribes (act
of July 1, 1902, chap. 1362, 51, 32 Stat. at L. 641, 653), and set up in a
supplemental complaint. The defendants admitted the legal title to be in Riddle,

but by cross complaint sought to have him declared a trustee for their benefit
and decreed to convey the title to them. A judgment refusing to declare such a
trust, and awarding the lot to Riddle, was affirmed by the supreme court of
Oklahoma (41 Okla. 759, 139 Pac. 1143), and the case is brought here, under
237, Judicial Code [36 Stat. at L. 1156, chap. 231, Comp. Stat. 1913, 1214],
upon the ground that the decision was against rights set up by plaintiffs in error
under the provisions of the Agreement.
2

The facts are as follows: Some years prior to the making of the Agreement, one
Fitzpatrick, a white man not entitled to citizenship in any Indian tribe, made a
lease of the lot in controversy, then vacant and unimproved, to one Barnhart,
who went into possession and erected a substantial house and other
improvements, which were to belong to him, subject to the payment of a ground
rent to Fitzpatrick. There is nothing to show what right Fitzpatrick claimed, or
that in fact he had any right to seize upon vacant tribal lands and contract
concerning them as he did. In the year 1897, Barnhart sold the improvements
and transferred the possession of the lot to one Ellis, who entered into
possession and made further improvements. About April 1, 1898, Ellis refused
to pay rent, and on July 7, in the same year, Fitzpatrick brought a suit for
unlawful detainer against him in the United States court, alleging, in an
amended complaint filed in February, 1899, that he desired possession for the
purpose of being able to place upon the lot such improvements as would protect
his right to the land under the provisions of the Agreement. Fitzpatrick
prevailed in the United States court, and, on appeal, in the court of appeals for
the Indian Territory (Ellis v. Fitzpatrick, 3 Ind. Terr. 656, 64 S. W. 567), and
also in the circuit court of appeals for the eighth circuit, whose decision was
rendered October 27, 1902 (55 C. C. A. 260, 118 Fed. 430). Meanwhile Elis
retained posession by means of a supersedeas bond.

In February, 1902, the town-site commission for the Chickasaw Nation,

organized pursuant to the provisions of the Atoka Agreement, visited
Chickasha for the purpose of appraising town lots and awarding them to
persons having the preferential right to purchase under the terms of the
Agreement. Ellis having conveyed his rights to Riddle and Cook, the lot was
scheduled to them, and on June 12, 1902, they were notified that they had the
right to purchase it. A week later they availed themselves of this right by
paying to the United States Indian agent the proper percentage of the appraised
value to make up the full purchase price of the lot, and took from him a proper
receipt.

Pending the unlawful detainer suit, Fitzpatrick conveyed whatever interest he

had in the lot to a Mrs. Cross, and she conveyed an undivided half interest to

one Bourland. In January, 1903, after the decision of the circuit court of
appeals, Bourland and Cross obtained possession of the lot with the
improvements, and in the following month the present action of ejectment was
commenced by Riddle and Cook against Fitzpatrick and the persons in
possession. Thereafter Bourland and Cross conveyed their interest to E. B. and
H. B. Johnson, the present plaintiffs in error, and they were substituted as
defendants. Riddle bought the interest of Cook, and thus became the sole
plaintiff. Pending the action, a contest was instituted, either by Bourland and
Cross or by the Johnsons, against Riddle and Cook, concerning the award and
scheduling of the lot to the latter. The town-site commission having been
abolished by the Secretary of the Interior pursuant to act of March 3, 1905,
chap. 1479, 33 Stat. at L. 1048, 1059, the contest was heard before the United
States Indian inspector assigned to the Indian Territory, upon whom this duty
was imposed by regulations approved by the Secretary. Rep. Ind. Inspec. 1905,
pp. 5, 22, 23; House Doc. No. 5, 59th Cong. 1st Sess. vol. 19, pp. 705, 722,
723. The inspector made full findings of fact, and in an elaborate opinion
decided in favor of contestees. Upon appeal this decision was affirmed by the
Commissioner of Indian Affairs, and upon appeal to the Secretary of the
Interior it was again affirmed. These decisions proceeded upon findings to the
effect that, at the time of the ratification of the Atoka Agreement and at the
time the town site of Chickasha was laid out by the town-site commission, and
when the plats prepared by the commission were finally approved by the
Secretary of the Interior, Ellis was the owner of permanent, substantial, and
valuable improvements, other than fences, tillage, and temporary houses, on
said lot; that none of these improvements was in any way in issue in the
unlawful detainer suit, and Ellis's ownership of them was not denied or
disputed, but, on the contrary, was admitted by Fitzpatrick in his pleadings, and
they were in no way adjudicated upon in that suit; that Riddle and Cook
afterwards purchased the improvements from Ellis, and having received notice
from the townsite commission, as already mentioned, of their right to purchase
the lot under the provisions of the Atoka Agreement, they forwarded to the
United States Indian agent the proper percentage of the appraisement to make
up the full purchase price of the lot, and received his receipt for the same. After
the final determination of the contest before the Department of the Interior, a
patent was issued to Riddle and his associate, dated in May, 1907.
5

The Atoka Agreement between the United States and the Choctaw and
Chickasaw tribes, negotiated April 23, 1897, amended by 29 of the Curtis act
(June 28, 1898, chap. 517, 30 Stat. at L. 495, 505), and thereby submitted for
ratification by the members of the tribes, was ratified by a majority of votes at a
special election held on August 24, 1898, the result of which was ascertained
and proclaimed on August 30th by a board of commissioners for that purpose,

designated by the act, and the agreement thus became effective. (See 6th Ann.
Rep. Dawes Comm., September 1, 1899, House Doc. No. 5, 56th Cong. 1st
Sess. vol. 19, p. 9; Homer's Const. and Laws of Chickasaw Nation, 1899, p.
420.) It contains provisions respecting town sites (30 Stat. at L. 508, chap. 517),
of which the pertinent portions are set forth in the margin.1
6

Regulatory provisions, embodied in an act of May 31, 1900 (chap. 598, 31 Stat.
at L. 221, 237, 238), were assented to by the Choctaws and Chickasaws in the
supplemental agreement (act of July 1, 1902, chap. 1362, 32 Stat. at L. 641,
652), and other regulations were thereby added. Authority to appraise town lots,
improved or unimproved, to ascertain the ownership and value of the
improvements, and to dispose of the lots in conformity to the provisions of the
Agreement, was thereby conferred upon the town-site commission, subject to
the supervision of the Secretary of the Interior. (See Ross v. Stewart, 227 U. S.
530, 534, 57 L. ed. 626, 628, 33 Sup. Ct. Rep. 345.) Their unfinished duties
were devolved upon the Secretary by the act of 1905, under whose authority
the Indian inspector acted, as already shown. The supreme court of Oklahoma
therefore was correct in holding that the findings of the inspector respecting
matters of fact, affirmed on final appeal by the Secretary, were binding upon
the courts, in the absence of gross mistake or fraud (neither of which is here
present), and that the judicial inquiry is limited to determining whether there
was clear error of law that resulted in awarding the preferential right of
purchase, and ultimately issuing the patent, to the wrong party. Johnson v.
Towsley, 13 Wall. 72, 85, 20 L. ed. 485, 487; Shepley v. Cowan, 91 U. S. 330,
340, 23 L. ed. 424, 427; Marquez v. Frisbie, 101 U. S. 473, 476, 25 L. ed. 800,
801; Gonzales v. French, 164 U. S. 338, 342, 41 L. ed. 458, 459, 17 Sup. Ct.
Rep. 102; Ross v. Day, 232 U. S. 110, 116, 58 L. ed. 528, 529, 34 Sup. Ct. Rep.
233.

Since the findings are to the effect that the improvements upon the lot were
owned by Ellis, and by defendant in error through a purchase from him, the
contentions of the plaintiffs in error are reduced to these: that the decision of
the Indian inspector, approved by the Secretary of the Interior, to the effect that
the Atoka Agreement terminated the relation of Landlord and tenant, was based
upon an erroneous construction of the Agreement, and ignored the equities of
the landlord as against the tenant; that under a correct construction of the
provision permitting the owner of the improvements to buy a town lot at a
fraction of the appraised value, a tenant who wrongfully withheld possession of
such a lot from his landlord, thereby preventing him from erecting
improvements thereon, could not acquire title to the lot as against the landlord;
and that a tenant who, under the provisions of the Agreement, but in violation
of the rights of his landlord, has acquired a deed for such a lot, holds the title as

trustee for the landlord.

8

The Atoka Agreement of course is to be read in the light of the conditions out
of which it arose. The Choctaw Indians acquired the territory in question under
a treaty with the United States made at Dancing Rabbit Creek in the year 1830
(7 Stat. at L. 333). In accordance with the provisions of the treaty, and pursuant
to authority conferred by act of May 28, 1830 (chap. 148, 3, 4 Stat. at L. 412),
a patent was issued by the President of the United States, March 23, 1842,
granting the land to the Choctaw Nation, 'in fee simple to them and their
descendants, to inure to them, while they shall exist as a nation and live on it,
liable to no transfer or alienation, except to the United States, or with their
consent.' (Durant's Const. & Laws of Choctaw Nation, 1894, p. 31.) In 1837 the
Choctaws entered into a treaty with the Chickasaws, by which the latter were
priviledged to form a district within the limits of the Choctaw country, 'to be
held on the same terms that the Choctaws now hold it. except the right of
disposing of it, which is held in common with the Choctaws and Chickasaws.'
This received the approval of the President and Senate of the United States. 11
Stat. at L. 573, 575. In the year 1855 a new treaty was made between the
United States and these tribes (11 Stat. at L. 611), by which the boundaries of
their country were defined and the United States guaranteed the lands embraced
within the specified limits 'to the members of the Choctaw and Chickasaw
tribes, their heirs and successors, to be held in common; so that each and every
member of either tribe shall have an equal, undivided interest in the whole;
Provided, however, no part thereof shall ever be sold without the consent of
both tribes; and that said land shall revert to the United States if said Indians
and their heirs become extinct, or abandon the same.' The westerly part of the
country was established as a district for the Chickasaws, the easterly part for
the Choctaws. After the Civil War, and in the year 1866, a new treaty was
made, by the 11th article of which it was recited that the land described in the
treaty of 1855 'is now held by the members of said nations in common, under
the provisions of the said treaty.' 14 Stat. at L. 769, 774. A plan for a survey,
division, and allotment of the land was proposed by the same article, but this
came to naught because of the nonassent of the Choctaw people. Woodward v.
DeGraffenried, 238 U. S. 284, 294, 59 L. ed. 1310, 1318, 35 Sup. Ct. Rep. 764.
Thus matters remained until, in the course of time, the influx of white people
into this and other parts of the Indian Territory created a new situation of great
complexity, calling for a readjustment of the affairs of the Five Civilized
Tribes. In 1893 the Dawes Commission was appointed, under authority of an
act of Congress (chap. 209, 16, 27 Stat. at L. 645), to enter into negotiations
with those tribes for the purpose of extinguishing the tribal titles to lands. The
annual reports of the Commission, a reference list of which is printed in 238 U.
S. 296, give a complete and instructive account of its labors. The first of these

reports, dated November 20, 1894, shows that among the original propositions
submitted to the several tribes as a basis of negotiations it was suggested that
town sites should be the subject of special agreements, such as would secure to
the Indians and to investors 'a just protection and adjustment of their respective
rights.' In explanation it was stated: 'There are towns in the Territory ranging in
population from a few people to 5,000 inhabitants. Nearly all of them are
noncitizens. . . . Many large and valuable stone, brick, and wooden buildings
have been erected by non-citizens of these towns, and the lots on which they
stand are worth many thousands of dollars. These town sites are not susceptible
of division among the Indians, and the only practicable method of adjusting the
equities between the tribes who own the sites and those who constructed the
buildings is to appraise the lots without the improvements and the
improvements without the lots and allow the owners of the improvements to
purchase the lots at the appraised value, or to sell lot and improvements, and
divide the money according to the appraisement.' House Ex. Doc. pt. 5, 53d
Cong. 3d Sess. vol. 14, pp. lxii., lxv.
9

The first agreement to be negotiated by the Commission was with the

Choctaws under date December 18, 1896, but the Chickasaws refused to concur
in this, and another was negotiated at Atoka, April 23, 1897, with both tribes. In
its original form it is appended to the Fourth Report of the Commission, dated
october 11, 1897 (House Doc. No. 5, 55th Cong. 2d Sess. vol. 12, pp. cxvii.,
cxxii.). It provided that a town-site commission should be appointed for each of
the two nations; that each existing town site should be laid out and platted, and
that 'each lot on which permanent, substantial, and valuable improvements,
other than fences, tillage, and temporary houses, have been made, shall be
valued by the Commission . . . at the price a fee-simple title to the same would
bring in the market at the time the valuation is made, but not to include in such
value the improvements thereon. The owner of the improvements on each lot
shall have the right to buy the same at 62 1/2 per cent of the said market value,
within sixty days from date of notice served on him that such lot is for sale.' It
further provided that if the owner of the improvements should fail to purchase,
the lot with improvements should be sold at auction, the purchaser to pay the
price to the owner of the improvements, less 62 1/2 per cent of the appraised
value of the lot, which was to be paid into the United States Treasury for the
benefit of the Indians. This agreement, with some amendments, was ratified by
Congress in 29 of the Curtis act, and afterwards ratified by the voters of the
two tribes, as already mentioned. The provision as to purchase of town lots was
amended only by giving to the owner of the improvements the right to buy one
residence and one business lot at 50 per centum and the remainder of such
improved property at 62 1/2 per centum, if the appraised market value.

10

The same act contained, in its 15th section (30 Stat. at L. 500, chap. 517) a
provision for the appointment of a town-site commission for each of the
Chickasaw, Choctaw, Creek, and Cherokee tribes; allowing 'the owner of the
improvements upon any town lot, other than fencing, tillage, or temporary
buildings,' to deposit in the United States Treasury one half of the appraised
value of the lot, excluding improvements, as a tender to the tribe of the
purchase money for the lot; and permitting improved lots to be sold at auction
if the owner of the improvements thereon failed to deposit the purchase-money
within a limited time, in which case the purchaser at auction might, by
appropriate proceedings in the United States court, require the owner of the
improvements to either accept their appraised value or remove the
improvements from the lot. The same section provided for the sale of
unimproved lots, the purchase-money to be deposited with like effect as in the
case of improved lots; and authorized the tribes to make deeds to the purchasers
conveying the title to such town lots, whereupon the purchase-money was to
become the property of the tribe. These provisions would appear to have been
superseded, as to the Choctaw and Chickasaw tribes, by their acceptance of the
Atoka Agreement, and are mentioned only to show that in 15, as in the
Agreement, it was the owner of the improvements, and he alone, who was
recognized as entitled to be considered in the sale of the town lots.

11

It is not necessary to say that the Agreement, when thus ratified by Congress
and by the tribes, became the law of the land, and superseded all customs, if
such there were, that had sanctioned the making of leases to noncitizens. By its
terms towns, so far as they had been established within the domain of the
tribes, were recognized, and provision was made for platting them, and for
selling the lots, both improved and unimproved, the proceeds to become the
property of the tribes. It was recognized that the money expended by white
men in constructing the buildings and other permanent improvements had
increased the value not only of the improved lots, but of all lands within the
town; and hence a preferential right of purchase was conferred upon 'the owner
of the improvements on each lot.' But there is nothing in the history of the
matter, any more than in the language employed, to give the least countenance
to the suggestion that prior rights of occupancy were intended to be recognized
in this Agreement. Ownership of improvements actually upon the soil was
adopted as the sole foundation of the newly conferred right to acquire title to
the soil itself. And these improvements must be 'permanent, substantial, and
valuable improvements, other than fences, tillage, and temporary houses.' The
exclusion of these latter, indicative merely of occupancy, is highly significant.

12

The provisions of the Agreement respecting the sale of town lots could not be
carried into effect without terminating existing rights of occupancy, if such

there were, saving as these coincided with the ownership of permanent

improvements. Hence, if Fitzpatrick had any right to the soil, it came to an end
either when the Agreement took effect in August, 1898, or, at latest, when its
town-site provisions were put in operation at Chickasha. It is insisted that Ellis,
as tenant, was estopped to deny his landlord's title, and that Riddle is in no
better case. Blight v. Rochester, 7 Wheat. 535, 547, 5 L. ed. 516, 519. But a
tenant is not estopped to show that his landlord's title has expired or has been
terminated by operation of law. England ex dem. Syburn v. Slade, 4 T. R. 682;
Blake v. Foster, 8 T. R. 487, 5 Revised Rep. 419; Neave v. Moss, 1 Bing. 360,
8 J. B. Moore, 389, 2 L. J. C. P. 25; Hopcroft v. Keys, 9 Bing. 613, 2 Moore &
S. 760; Doe ex dem. Higginbotham v. Barton, 11 Ad. El. 307; Den ex dem.
Howell v. Ashmore, 22 N. J. L. 261, 265; Shields v. Lozear, 34 N. J. L. 496,
500, 3 Am. Rep. 256; Hilbourn v. Fogg, 99 Mass. 11; Lamson v. Clarkson, 113
Mass. 348, 18 Am. Rep. 498.
13

The argument that Ellis, by withholding possession of the lot from Fitzpatrick,
prevented him from erecting improvements such as would have satisfied the
requirements of the Atoka Agreement so as to confer upon Fitzpatrick the
preferential right to purchase the lot, and hence that Ellis and those claiming
under him are estopped to purchase the land for themselver, and must be held
to have acquired it in trust for Fitzpatrick and those claiming under him, cannot
prevail. The facts do not show that Ellis's refusal to pay rent, and his resistance
to the forcible entry and detainer suit, were other than bona fide. Nor does it
appear that Fitzpatrick, even before the Atoka Agreement, had any right of
possession of the land as against the Indians. So far as the facts appear, he had
no rights at all, except as against the tenant, and against him only because of the
estoppel. In order to show that the tenant, by withholding possession, deprived
the landlord of the opportunity of exercising a valuable right, it must be made
to appear that, with the tenant out of the way, the right would have existed. But,
if Ellis had given up possession, Fitzpatrick would have had no more right than
any other white man to enter and erect improvements,that is to say, none at
all. At most, he would have had a mere opportunity, without right, and the
deprivation of this cannot furnish a foundation for impressing a trust upon the
title afterwards acquired by Ellis's grantee by direct purchase from the owners
of the paramount title. Even were it made to appear that there was error in
adjudging the title to the patentee, this would not raise a trust in favor of the
contestant unless he could show that by the law, properly administered, the title
ought to have been awarded to him. Bohall v. Dilla, 114 U. S. 47, 51, 29 L. ed.
61, 63, 5 Sup. Ct. Rep. 782; Sparks v. Pierce, 115 U. S. 408, 413, 29 L. ed. 428,
429, 6 Sup. Ct. Rep. 102.

14

What, then, was the nature of Fitzpatrick's equity? Under the facts found, both

he and Ellis were trespassers upon the lands of the Indians, in disregard of
rights secured to the latter by treaty with the United States, and in violation of
2118, Rev. Stat.1 The lease created a mere estoppel between trespassers. The
rights, if they may be called rights, of lessor and lessee alike, were terminated
by the force of the Agreement. Individual ownership of the land originated with
that instrument, and can be only such as by its terms was created. It was
competent for Congress, or for the Indian tribes, with the concurrence of
Congress, to deal as they deemed proper with the practical situation resulting
from the building of towns by white men within their borders. They chose to
confer a preferential right of purchase, at a discount from the appraised value,
not upon the 'occupant,' or 'possessor,' or 'landlord,' or 'tenant,' but upon 'the
owner of the improvements' other than those of a temporary nature. This did not
cut off any pertinent equity, but it rendered all equities impertinent except such
as related to the ownership of the improvements.
15

The Atoka Agreement, while accepting existing improvements of a substantial

nature as part consideration for the purchase of town lots, contained no
recognition of legitimacy in the previous occupation of the soil by white men,
nor any official ratification of their intrusion upon the Indian lands. It laid
aside, as immaterial, the question whether improvements had been constructed
with or without rightful possession of the land. In this respect it session of the
land. In this respect it differed from the Original Creek Agreement of March 8,
1900 (act of March 1, 1901, chap. 676, 31 Stat. at L. 861, 866), the proposed
Cherokee agreement of April 9, 1900 (act of March 1, 1901, chap. 675, 31 Stat.
at L. 848, 853), which failed of ratification by the tribe (8th Ann. Rep. Dawes
Comm. Oct. 1, 1901; House Dec. No. 5, 57th Cong. 1st Sess. vol. 24, p. 11),
and the Cherokee agreement of July 1, 1902 (chap. 1375, 32 Stat. at L. 716,
723), which was ratified by the tribe (10th Ann. Rep. Dawes Comm. Sept. 30,
1903; House Doc. No. 5, 58th Cong. 2d Sess. vol. 20, p. 115).

16

If Fitzpatrick had had any equitable right or interest in the improvements upon
the lot in controversy, a very different question would be presented. But he had
none.

17

We are referred to two decisions of the United States court of appeals for the
Indian Territory that are said to uphold the legal validity of grants of leasehold
interests in lands in the Choctaw and Chickasaw country prior to the Atoka
Agreement. Kelly v. Johnson (1897) 1 Ind. Terr. 184, 189, 39 S. W. 352, 354;
G. W. Walker Trading Co. v. Grady Trading Co. (1897) 1 Ind. Terr. 191, 196198, 39 S. W. 354, 356. These cases, however, go no further than to hold that a
possessory right might pass by transfer from a citizen of one of the Indian tribes
to a noncitizen, and would protect the latter against forcible entry by others not

showing a better right to the possession, nor acting under authority of the tribe,
and that a lease of such lands with improvements estopped the lessee to
question the lessor's title. See also Wilson v. Owens (1897) 1 Ind. Terr. 163, 38
S. W. 976, affirmed in 30 C. C. A. 257, 57 U. S. App. 500, 86 Fed. 571;
Hockett v. Alston, 49 C. C. A. 180, 110 Fed. 910, reversing s. c. 3 Ind. Terr.
432, 58 S. W. 675; Williams v. Works, 4 Ind. Terr. 587, 76 S. W. 246; Fraer v.
Washington, 60 C. C. A. 194, 125 Fed. 280. These decisions leave untouched
the authority of Congress, with or without the consent of the tribe, to terminate
all possessory interests and dispose of the fee in any manner deemed proper.
18

Much reliance is placed upon the decision of this court in Rector v. Gibbon,
111 U. S. 276, 28 L. ed. 427, 4 Sup. Ct. Rep. 605, which turned upon the effect
of an act of Congress in relation to the Hot Springs Reservation in the state of
Arkansas (act of March 3, 1877, chap. 108, 19 Stat. at L. 377). The statute was
passed to relieve the peculiar hardship resulting from a decision of the court of
claims, affirmed by this court (Hot Springs Cases, 92 U. S. 698, 713, 715, 716,
23 L. ed. 690, 696, 697), holding invalid, for reasons more or less technical,
certain land titles set up against the United States, some of them under claims
of pre-emption and one under a New Madrid location, followed in each case by
long years of possession. Rector v. Gibbon construed the legislation in the light
of the circumstances out of which it arose, and so as to relieve those who had
made improvements or claimed possession under the titles that had been found
defective. It has no proper bearing upon the questions presented in the case at
bar. Lamb v. Davenport, 18 Wall. 307, 21 L. ed. 759; Atherton v. Fowler, 96 U.
S. 513, 24 L. ed. 732; and Trenouth v. San Francisco, 100 U. S. 251, 25 L. ed.
626, cited by plaintiffs in error, are likewise aside from the point.

19

It is, perhaps, unnecessary to mention that the matter at issue here is not
concluded by the decision in Eillis v. Fitzpatrick, 3 Ind. Terr. 656, 64 S. W.
567, s. c. affirmed in 55 C. C. A. 260, 118 Fed. 430, for that case concerned
only the right of possession as between landlord and tenant, and Ellis's
ownership of the improvements was admitted in the pleadings. The legal or
equitable title to the soil was not involved.

20

From the views above expressed, it results that the judgment of the Supreme
Court of Oklahoma must be affirmed.

'Town Sites. It is further agreed that there shall be appointed a commission for
each of the two nations. . . . Each of said commissions shall lay out town sites,
to be restricted as far as possible to their present limits, where towns are now

located in the nation for which said commission is appointed. . . . When said
towns are so laid out, each lot on which permanent, substantial and valuable
improvements, other than fences, tillage, and temporary houses, have been
made, shall be valued by the commission provided for the nation in which the
town is located at the price a fee-simple title to the same would bring in the
market at the time the valuation is made, but not to include in such value the
improvements thereon. The owner of the improvements on each lot shall have
the right to buy one residence and one business lot at fifty per centum of the
appraised value of such improved property, and the remainder of such improved
property at sixty-two and one half per centum of the said market value within
sixty days from date of notice served on him that such lot is for sale, and if he
purchases the same he shall, within ten days from his purchase, pay into the
treasury of the United States one fourth of the purchase price, and the balance
in three equal annual instalments, and when the entire sum is paid shall be
entitled to a patent for the same. . . . If such owner of the improvements on any
lot fails within sixty days to purchase and make the first payment on same, such
lot, with the improvements thereon, shall be sold at public auction to the
highest bidder, under the direction of the aforesaid commission, and the
purchaser at such sale shall pay to the owner of the improvements the price for
which said lot shall be sold, less sixty-two and one half per cent of said
appraised value of the lot and shall pay the sixty-two and one half per cent of
said appraised value into the United States Treasury. . . . All lots not so
appraised shall be sold from time to time at public auction. . . .'
1

Comp. St. 1913, 4108.