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ington, D. C., for temporary duty in con- | in his sea assignment, to perform merely nection with the inspection of steel tubes for temporary service ashore, he is entitled to the boilers of torpedo boat No. 11, at Find- sea pay. And this is in accord with the lay, Ohio, and at Shelby, Ohio.

naval regulations, wherein it is provided: You are authorized to perform such travel Paragraph 1154: between League Island, Pa., and Findlay, “(1) Officers shall be entitled to sea pay Ohio, and between League Island, Pa., and while attached to, and serving on board of, Shelby, Ohio, as may be necessary in the any ship in commission under control of the performance of this duty.

Navy Department, the Coast Survey, or the Keep a memorandum of the travel so per- Fish Commission. formed by you, certifying to its necessity, “(3) Any officer temporarily absent from and submit the same to the Department, a ship in commission to which he is attached from time to time, for its approval.

shall continue to receive sea pay. This duty is in addition to your present Paragraph 1168: duties.

“A temporary leave of absence does not Very respectfully,

detach an officer from duty nor affect his W. McAdoo, Acting Secretary.

rate of pay. Chief Engineer Albert C. Engard, U. S. It is settled that the Navy Department

Navy, U. S. R. S. Richmond, Navy Yard, has no power to disregard the statute, and League Island, Pa.

to deprive an officer of sea pay by assigning

him to a duty mistakenly qualified as shore Complying with this order, Chief Engi- duty, but which is, in law, sea duty. United neer Engard made two round trips between States v. Symonds, 120 U. S. 46, 30 L. ed. League Island and Ohio, in order to dis- 557, 7 Sup. Ct. Rep. 411; United States v. charge the additional duty referred to in the Barnette, 165 U. S. 174, 41 L. ed. 675, 17 order. The total number of days in which Sup. Ct. Rep. 286. And, of course, the conhe was engaged in this work between Feb. verse is also true, that the Navy Department ruary 24, 1897, and August 14, 1897, was has no power to entitle an officer to receive 122. On the application to be allowed mile sea pay by assigning him to duty which is age for the trips amounting to $172.80, the essentially shore duty, and mistakenly qualauditor of the Navy Department deducted ifying it as sea duty. But there is no confrom the claim $133.70, and allowed only flict between these rulings, and the conceded $39.10. The sum disallowed was deducted principle that, where an officer is assigned on the theory that the chief engineer was to a duty which is essentially a sea service, only entitled to be paid for shore duty in that he does not lose his right to sea pay stead of for sea service during the time re. whenever he is called upon to perform a ferred to. This suit was brought to recover mere temporary service ashore. In the the amount of the deduction, and the right present case it cannot be denied that the to so recover was sustained by the court of officer was assigned to sea duty, and that claims. 38 Ct. Cl. 712.

the order of the Department, instead of de

taching him therefrom, simply ordered him Messrs. John Q. Thompson and Assist. to discharge a temporary service ashore in ant Attorney General Pradt for appellant. addition to his sea service. The whole con

Messrs. William B. King, George A. tention of the government is that this temKing, and Joseph C. Stebbins for appellee. porary shore service was necessarily incom

patible with the continued performance of Mr. Justice White, after making the the officer's duty on the ship to which he foregoing statement, delivered the opinion continued to be attached, and therefore that of the court:

the shore duty was paramount to the sea A higher rate of pay is allowed to a chief service, and necessarily, by operation of law, engineer as well as to other naval officers affected the detachment of the officer so as when performing sea duty than when en- to permanently relieve him from the sea gaged on shore duty. Rev. Stat. 1556, U. S. duty to which he continued to be regularly Comp. Stat. 1901, p. 1067. And Rev. Stat. assigned. 1571, U. S. Comp. Stat. 1901, p. 1079, pro- There is no finding in the record, however, vides as follows:

which justifies this argument, and as urged “No service shall be regarded as sea serv- at bar it rests upon the mere assumption of ice except such as shall be performed at sea, the incompatibility between the sea duty to under the orders of a department, and in which the officer was regularly assigned and vessels employed by authority of law." the temporary shore duty which he was

The government did not dispute at bar, called upon by the Department to discharge. however, that where an officer assigned to In effect, the proposition is that it must be sea duty within the purview of the foregoing assumed as a matter of law, in the absence provision is called upon, without a change of a finding to that effect, that the tempo


rary shore duty was of such a permanentment which affirmed a judgment of the Discharacter as to render it impossible for the trict Court of the Third Judicial District of officer to continue to perform duty under that Territory, in favor of plaintiff, in an his permanent sea assignment, and, there action of ejectment to recover land situated fore, as a matter of law, caused such as- in a public street in Oklahoma City. Resignment to terminate. We think the con- versed and remanded for a new trial. verse is true; and that where the assign- See same case below, 12 Okla. 570, 73 Pac. ment of an officer to duty by the Navy De- 1012. partment expressly imposed upon him the The facts are stated in the opinion. continued discharge of his sea duties, and Messrs. Frank Dale, S. A. McGinnis, 0. qualified his shore duty as merely temporary Porter Johnson, and A. G. C. Bierer for and ancillary to the regular sea duty, that plaintiff in error. the presumption is that the shore duty was Messrs. Chester Howe and Francis J. temporary, and did not operate to interfere Kearful for defendant in error. with or discharge the officer from the responsibilities of his sea duty, to which he Mr. Justice Peckham delivered the opinwas regularly assigned.

ion of the court: Affirmed.

On the 22d day of September, 1899, this

action of ejectment was commenced by de(196 U. S. 529)

fendant in error in the district court of the CITY OF OKLAHOMA CITY, Piff. in Err., third judicial district of Oklahoma terri

tory, in Oklahoma county. It was brought FRANK MOMASTER.

to recover lands situated in a public street

in the city of Oklahoma City. Judgment Appealdistinction between appeal and was entered for the defendant in error for

writs of error-res judicata-evidence of the recovery of the land, and that judgment former judgmentpublic lands-rights of was affirmed by the supreme court of the occupant of projected town site.

territory, and the plaintiff in error has

brought the case here, both by writ of error 1. The fact that an action of ejectment was and appeal, taking both courses as a pre

tried by the court, upon waiver of a jury does caution, in order to bring the case before not make appeal the proper method of obtain us. It was tried by the court, a jury having ing a review in the Federal Supreme Court of been waived by the parties, and the defendthe final judgment of the Oklahoma supreme court, under the act of May 2, 1890 (26 Stat. ant in error contends that where a case is at L. 81, 85, chap. 182), § 9, authorizing such thus tried in a territorial court, an appeal review in the same manner and under the to this court is the only proper proceeding same regulations as though the judgment to obtain a review. Act of Congress, 1874,

were that of a Federal circuit court. 2. Findings of fact by the judge trying the 18 Stat. at L. 27, 28, chap. 80. The con

cause, and an order directing a conveyance tention of defendant is not correct in this "as decreed by this court,” filed in different case. The manner of reviewing judgments, county clerks' offices, do not amount to a judg. in civil cases, of the supreme court of the ment, and are not admissible in evidence in territory of Oklahoma, is specially provided

support of a plea of res judicata. 3. The selection of a lot in a projected town for by the 9th section of the act of May 2,

site in Oklahoma, in accordance with a plat 1890 (26 Stat. at L. 81, 85, chap. 182), proagreed upon by a portion of the occupants at viding a territorial government for Oklaor near the date of the opening to settlement, homa, and is not governed by the act of did not vest such an unconditional title in the selector as will prevail against the rights of Congress of 1874.' Comstock v. Eagleton, Oklahoma City to the use and occupation of 196 U. S. 99, 25 Sup. Ct. Rep. 210, 49 L. ed. the lot as a public street under a subsequent | 402. The 9th section of the act of 1890 prosurvey, made or approved pursuant to the act vides that writs of error and appeal from of May 14, 1890 (26 Stat. at L. 109, chap. the final decision of the supreme court of

p trustees appointed under that act to make the territory will be allowed and may be town-site entries for the several use and bene- taken to the Supreme Court of the United fit of the occupants, the selector not being an States “in the same manner, and under the occupant thereof when the trustees made en

same regulations, as from the circuit courts try of the land, nor when the conveyance to of the United States,” and it was held in them was made by the government.

the above case that final judgment in an [No. 137.)

action at law in the circuit court of the

United States can only be reviewed by writ Argued January 18, 19, 1905. Decided Feb- of error. The assumption that because this ruary 20, 1905.

case was tried before the court, a jury hav

ing been waived by consent, that therefore ERROR to the Supreme Court of the it ought to go up by appeal, is a mistaken Territory of Oklahoma to review a judge' one. In Deland v. Platte County, 155 Ü S.



221, 39 L. ed. 128, 15 Sup. Ct. Rep. 82, the tute a bar. In other words, the thing adcase was an action at law where a jury had judged must be by a judgment. A verdict been waived and trial had before the court. or finding of the court alone is not suffiNevertheless, it was held that, as it was ancient. The reason stated is that the judgaction at law, and the case came from a cir- ment is the bar, and not the preliminary decuit court of the United States, it could termination of the court or jury. It may be only be reviewed by this court on writ of that the verdict was set aside, or the finding

This case must, therefore, be re- of facts amended, reconsidered, or themviewed by writ of error because it is an ac- selves set aside, or a new trial granted. The tion at law, although tried by the court judgment alone is the foundation for the upon a waiver of a jury. The record shows bar. Springer v. Bien, 128 N. Y. 99, 27 N. a sufficient bill of exceptions, however, and E. 1076. the case is to be reviewed upon the record as Without resort to this (asserted) judg. thus presented.

ment in the action against the town-site trusUpon the trial, for the purpose of proving tees, it is not urged that the defendant in the issue upon his part, by means of evi- error made out his case upon the trial. dence of a former adjudication, the plaintiff There was no judgment, and the "finding of introduced in evidence what he contended facts" should not have been held to be such. was a judgment in his favor for the re. For the error in the admission of the socovery of the same land in an action in called judgment the case must be reversed. which he was plaintiff and Edgar N. Sweet We do not decide, even if there had been a et al., town-site trustees, defendants, and technical and formal judgment entered, that which was entered in the district court of such a judgment would be conclusive in the second judicial district, county of Cana- favor of the plaintiff upon the trial of this dian, territory of Oklahoma, on or before action against the city of Oklahoma City. May 11, 1892, and recorded on the 14th day Whether the plaintiff in error would be reof May, 1892, in the county of Oklahoma. garded as a privy to such judgment, and The plaintiff argued that the defendant therefore bound by it, it is not now neces(plaintiff in error) in the case at bar was sary to decide. bound as a privy by the adjudication in the The court is, however, indisposed to let former action. The paper was received in the case rest upon the error pointed out. evidence by the court, and it is set forth The question will arise upon another trial, at length in the record. It is evidently noth- as to the right of the plaintiff to recover ing but a finding of facts by the judge try- upon the facts stated in the finding of facts ing the cause. There was also a paper of in the action against the town-site trustees. fered and received in evidence, signed by the We think it proper to now look into those trial judge in the same case, and dated the findings simply for the purpose of determin13th day of October, 1893. This was an ing whether, assuming them to be facts, the order made in the case by him at Kingfisher, plaintiff below made out a case which would in Kingfisher county, and was entered in entitle him to recover the land in suit. The that county on the 13th day of October, supreme court of the territory is of opinion 1893,—the day of its date. The order di-that he did. Among the facts found on the rects the defendant to make, execute, and trial of the case against the trustees are the deliver to Frank McMaster, the plaintiff, a following: trustee's deed, "as decreed by this court on The trustees, appointed under the act of the 14th day of November, 1892, of the fol-1890, May 14 (26 Stat. at L. 109, chap. 207, lowing described premises and real estate.” U. S. Comp. Stat. 1901, p. 1463), entered It is attempted to piece these two documents the land in the local land office at Oklahoma together, the finding of facts filed in Cana- | City, September 3, 1890, covering, among dian county and thereafter recorded in the other lots, the premises in question, "in county of Oklahoma, and the order made in trust, for the use and benefit of the occuKingfisher county, and filed therein October pants thereof." A patent from the United 13, 1893, and to regard the whole as a judg- States was, on the 1st of October, 1890, ment. It is plain that there has been no

issued to the trustees for the land (covering formal judgment entered in the case, and over 160 acres), which patent was, by its that these two separate documents, filed in terms, in trust for the occupants of the town different clerks' offices, cannot be pieced to-site, according to their respective interests. gether and made a formal and complete At neither date was the plaintiff below an judgment. Without a judgment the plea of occupant of the land in suit. res judicata has no foundation; and neither Prior to this time, and on the 22d day of the verdict of a jury nor the findings of a April, 1889, the land had been opened for court, even though in a prior action, upon settlement under the proclamation of the the precise point involved in a subsequent President, pursuant to the act of Congress action and between the same parties, consti-'approved March 2, 1889. 25 Stat. at L. 980, chap. 412, page 1005, § 13. The land | 1889. That date was April 22, 1889. 26 in question, together with other lots, was Stat. at L. 1544. It was provided by the act settled upon and occupied as a town site that after the proclamation, and not before, shortly after noon of April 22, 1889, and has the Secretary of the Interior might permit continued to be and is still so held and oc- the entry of land for town sites under Rev. cupied.

Stat. $$ 2387, 2388 (U. S. Comp. Stat. 1901, A portion of the occupants of the tract, on pp. 1457, 1458). The Secretary of the Inthe 22d day of April, 1889, tacitly agreed to terior gave no permit for entry of lands for a plat of the land into lots, blocks, streets, town sites under the act of 1889. Again, and alleys, and the plaintiff on that day the sections of the Revised Statutes plainly legally entered upon and occupied the piece refer to an organized state or territory, and or parcel of land particularly described in Oklahoma was neither on the 22d day of the plat as his lots, and being the land re- April, 1889. It was organized as a territory covered by him in this action. Subsequently May 2, 1890 (26 Stat. at L. 81, chap. 182), to such occupancy, and prior to the entry of and the special act to provide for town-site the land by the trustees, and to the convey entries in Oklahoma was not passed until ance by the government to the trustees, a May 14, 1890. 26 Stat. at L. 109, chap. 207, different plat, making a different arrange-U. S. Comp. Stat. 1901, p. 1463. Regulament of streets, etc., was adopted and en- tions for carrying out that act were proforced by the parties occupying the town mulgated by the Secretary of the Interior site. By the latter plat the parcel of land June 18 and July 10, 1890. 10 Land Dec. claimed by the plaintiff was thrown into the 666; 11 Land Dec. 24. It may be assumed street called Grand avenue. The plaintiff that on April 22, 1889, it was supposed that did not consent, but objected to the second the land now embraced in the city of Oklaplat, and has never consented thereto or homa City would be a town site, as it was acquiesced therein. He was, by the city au- stated on the argument at bar, and not disthorities, forcibly removed from the parcel puted, that there was at that date a railroad of ground selected by him, and has since station here, and there was every probability that time been forcibly kept from the occu- that a town would exist at that site. But pancy thereof.

there was no law for a present selection of On the 21st day of April, 1891, he applied land or lots for town sites on the 22d day to the trustees of the city for a deed to the of April, 1889. There was but a supposition lot, but they declined to award it. The city that land actually selected on that day for of Oklahoma City has appropriated the land a town site would eventually be approved. as a street, and did so appropriate the same On May 14, 1890, more than a year after the long prior to the conveyance of the land by lands were open to entry, and just twelve the United States to the trustees. The plain- days after the act was passed providing for tiff was not an occupant of the tract at the the temporary government of the territory, time the United States conveyed the same to an act providing for town-sites entries was the trustees, but it was at the time used and passed. 26 Stat. at L. 109, chap. 207, U. S. occupied as a street by the city.

Comp. Stat. 1901, p. 1463. That act proOn these facts the plaintiff below did not vided for trustees, to be appointed by the make out his case. There was no uncondi- Secretary of the Interior, who were authortional vesting of title to the particular lot ized to make entry for town sites on so much chosen by him on the 22d of April, by tacit of the public lands situate in the territory agreement of some of the settlers, even of Oklahoma, and then open to settlement, though a map were made of the land show- as might be necessary to embrace all the leing the plaintiff in possession of a lot not gal subdivisions covered by actual occuin any public street of the city. Subse- pancy, for the purpose of trade and business, quently to the agreement upon a plat by not exceeding 1280 acres in each case, for some of the settlers, and prior to the con- the several use and benefit of the occupants veyance to the trustees by the patent from thereof, and the entry was to be made unthe United States (October 1, 1890), the der the provisions of § 2387 of the Revised plat was altered and another plat adopted, Statutes (U. S. Comp. Stat. 1901, p. 1457), by which the lot selected by the defendant as near as might be, and when such entry in error became a part of a public street in was made the Secretary of the Interior was the city. The defendant in error, in common to provide regulations for the proper execuwith all others, chose lots upon a site which tion of the trust by such trustees, including was intended as a town site, and took his lot the survey of the land into streets, alleys, subject to the conditions which might there- squares, blocks, and lots when necessary, or after obtain. There was no portion of the the approval of such survey as may already territory of Oklahoma open to settlement have been made by the inhabitants thereof, prior to the date fixed by the proclamation the assessment upon the lots of such sum as of the President under the act of March 2,' may be necessary to pay for the land em


braced in such town site, the costs of the rected the entry for the town sites to be survey, the conveyances of lots, and other made by the trustees "for the several use necessary expenses, including the compensa- and benefit of the occupants thereof.": tion of the trustees. The maps and plats of The supreme court in Guthrie v. Beamer, streets, etc., to be surveyed were to be ap- 3 Okla. 652, 41 Pac. 647, has held substanproved by the trustees, or they might ap-tially the same views which we now state in prove the survey already made by the in the case at bar. We are unable to see any. habitants thereof.

real difference in the principle governing the It seems, therefore, plain that a mere two cases, and we think the Beamer Case agreement among a portion of the people was rightly decided. selecting lots for or in a projected town site, The judgment of the Supreme Court of on April 22, 1889, did not and could not vest Oklahoma must be reversed, and the case rean absolute and unconditional title in the manded with directions for a new trial. persons who thus selected such lots. The Reversed. persons going on the land on that date, and under the circumstances then existing, did

(196 U. S. 539) not have any law for the vesting of title to CITY OF WORCESTER, Plff. in Err., a lot as within a town site, by the mere selection of land at that time. There was gen- WORCESTER CONSOLIDATED STREET eral confusion, and there were thousands of RAILWAY COMPANY. (Nos. 144, 145.) people entering the territory embraced within the proclamation, on that date. In CITY OF WORCESTER and the Board of Guthrie v. Territory, 1 Okla. 188–194, 21 L. Aldermen of the City of Worcester, Plffs. R. A. 841, 31 Pac. 190, the supreme court of in Err., the territory, in speaking of these crowds,

v. said:

WORCESTER CONSOLIDATED STREET "They were aggregations of people, asso- RAILWAY COMPANY. (Nos. 146, 148.) ciated together for purposes of mutual benefit and protection. Without any statute CITY OF WORCESTER, Piff. in Err., law, they became a law unto themselves, and

V. adopted the forms of law and government WORCESTER CONSOLIDATED STREET common among civilized people, and enforced

RAILWAY COMPANY. (No. 147.) their authority by the power of public sentiment. They had no legal existence; they contracts_impairment of obligationlegis. were nonenities; they could not bind them

lative power over municipal contracts. selves by contracts, or bind any one else."

The whole thing was experimental and A municipal corporation cannot invoke the conditional

protection of the contract clause of the FedThe selection of the lots in a proposed

eral Constitution against the abrogation by

Mass. Laws 1898, chap. 578, with the con. town site, made on the 22d day of April,

sent of the street railway company, of the 1889, not being final, neither was the plat or

provisions of a contract between that commap of the proposed town site, as then, or pany and the municipality with reference to soon after, agreed upon by some of the peo- paving the streets through which the comple, final or conclusive. The agreement upon

pany was thereby granted the right to extend

its tracks, and the substitution which that the plat or inap was liable to alteration;

statute makes of another and different meththere was no absolute right to any particu- od for paving and repairing such streets. lar lot, as it was subject to future survey. It was all in the air. When, thereafter, the [Nos. 144, 145, 146, 147, 148.] trustees, under the statute, made a survey of the land into the streets, etc., or approved Argued January 23, 24, 1905. Decided Feba survey already made, by which the plain

ruary 20, 1905. tiff's lot was placed in the public street of the city, it was his misfortune, where all had TWO WRITS OF ERROR, to the Supreme their

Judicial of the blank. The approval of a survey by the Massachusetts to review judgments sustaintrustees, which placed this lot in a public ing demurrers to petitions for writs of manstreet of the city, gives to the city the right damus to compel a street railway company to the possession of it, and to keep it open to repair and maintain the surface of the as such public street. The plaintiff, not be streets through which its tracks extend. Afing an occupant of the lot at the time that firined. Also the trustees made entry of the land, nor TWO WRITS OF ERROR to the Superior when the conveyance was made to the trus- Court of the Commonwealth of Massatees by the government, was not one of the chusetts for the County of Worcester to reparties included in the statute, which di. 'view judgments sustaining demurrers to


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