every part and parcel thereof; to have and to hold all and singular the above-described tract or parcel of land and premises, with the appurtenances, unto the said party of the second part, their successors and assigns, to the only proper use, benefit, and behoof of the said party of the second part, their successors and assigns, as long as used for a canal. There is no reservation in the deed. It conveys all the right, title, and interest of the grantors in the land and its appurteDances for the term specified in the grant, to wit, as long as used for said canal. By the terms of the conveyance, the grantees take a qualified fee, liable to be defeated whenever they cease to use the land for the purpose specified in the grant. 1 Inst. 1b, 27a; 1 Cruise, Dig. p. 79, tit. 1, § 82; 2 Bl. Comm. 110." In the case of Scheetz v. Fitzwater, 5 Pa. St. 126, which was an action of trespass, in which the title to the locus in quo was involved, the plaintiff claimed title under a deed, dated in 1746, from Emlen to Lardner, conveying "a certain mill dam or pond of water, and mill race or stream of water, issuing and proceeding from the said mill dam or pond of water, as the same is now situated, and being in and upon a certain tract or parcel of land situated in the manor of Springfield, together, also, with the site and soil of the said mill pond or dam and race of water, and also one perch of land on cach and every side of the said pond or dam and race of water, to and for the use and service of a certain mill, with the land thereto belonging, and for no other use whatsoever; the said perch of land to be taken and laid out from the center or middle of the said mill race, and from the edge of the water round or on the outside of the sand pond, if his, the said George Emlen's, land shall extend one perch beyond the said dam or pond, or otherwise, so far as the said George Emlen's land doth extend beyond the said point, not exceeding one perch; and also full and free liberty and privilege to and for the said Lynford Lardner, his heirs and assigns, of egress and regress to and from the said mill pond and race, to repair, support, and maintain the same for the use and service of the said mill; the liberty and privilege of making bridges and hedges or fences across the said mill race, and of passing and repassing over and along the same, to and from the adjacent land of the said George Emlen, so as such bridges, hedges, or fences do not obstruct, hinder, or prejudice the same race or pond of water, or either of them, excepted, and hereby reserved to the said George Emlen, his heirs and assigns." On the trial of the cause the court instructed the jury, as to the estate conveyed by the deed from Emlen to Lardner, as follows: "But Emlen did not convey a fee-simple estate in that land. He conveyed a qualified fee, determinable on the abandonment by Lardner, his heirs or assigns, of the use and

service for which the conveyance was made, as stated in his deed; and, in conveying such limited fee, he retained the reversion in himself, and that he could permit to descend or to sell to others. To convey such limited fee, and to retain the reversion, was his intention, as the court collects it from his deed; and such intention of the grantor, when legal, is the governing principle when construing conveyances. Hollingsworth v. Fry, 4 Dall. 347; Means v. Presbyterian Church, 3 Watts & S. 303; Hauer v. Sheetz, 2 Bin. 537, 544. Lardner, therefore, acquired an estate in this pond and mill race as land to be held by him, his heirs and assigns, so long. and no longer, as he or they continued to use them for the purpose stated; and necessarily they reverted to Emlen, or his heirs or assigns, as the case might be, whenever that purpose was abandoned, and the land was subjected to other uses." The giving of these instructions by the trial court was assigned for error, but the court held (Gibson, C. 'J., delivering the opinion) that they stated correct propositions of law. And see, also, the following cases: Board of Education v. Van Wert, 18 Ohio St. 221; Kirk v. King, 3. Pa. St. 436; Hoboken Land & Imp. Co. v. Mayor, etc., of Hoboken, 36 N. J. Law, 550. The estate of the Cherokee Nation in the Cherokee outlet, under the several treaties and the patent of 1838, was considered in the case of U. S. v. Soule, 30 Fed. Rep. 918, by that eminent jurist, Judge Brewer, now of the supreme court of the United States, and in which he said: "Now, is this outlet, within the meaning of the act of 1883, set apart and occupied by the Cherokee Nation? That it was set apart to that nation is evident; but was it occupied? Doubtless, in a certain sense, it was occupied, because the Cherokee Nation had a title and right to possess it; but, if congress had meant by this act to include all land owned by the Cherokees, the words 'set apart' would have been ample, and the word 'occupied' was superfluous. Obviously, some distinctive matter was intended to be expressed by the use of the word. The significance of it is evident, from the language of the proviso in article 2, heretofore quoted. Manifestly, congress set apart that 7,000,000 acres as a home, and that was thereafter to be regarded as set apart and occupied, because, as expressed in the preamble of the treaty, congress was intent upon securing a permanent home. Beyond that, the guaranty was of an outlet, not territory for residence, but for passage ground, over which the Cherokees might pass to all the unoccupied domain west. But while the exclusive right to this outlet was guarantied, while patent was issued conveying this outlet, it was described and intended obviously as an outlet, and not as a home. So, whatever rights of property the Cherokees may have in this outlet, it was not territory set apart for a home, and is not ter

ritory, within the language of the act of 1883, set apart and occupied by the Cherokee tribe."

That the Cherokee outlet was ceded and granted by the United States, and accepted by the Cherokee Nation, for the purpose of, and to be used as, an outlet only, and was so understood by both parties to the treaties and patent, is placed beyond all question from a consideration of the treaty of December 29, 1835, in which provision' is made for the additional 800,000 acres as a part of the permanent home, it being apprehended that the 7,000,000 acres set apart for that purpose were not sufficient for the united Cherokees. If the 6,000,000 acres in the Cherokee outlet could have been used for the purpose of a home, there would have been no necessity for the purchase of the additional lands, for which the Cherokee Nation paid the sum of $500,000.

Again, in dividing the Cherokee Nation into judicial districts, the laws of the nation do not recognize any territory west of the ninety-sixth meridian, and, consequently, cover no part of the Cherokee outlet, as it was not inhabited, in the sense in which their home lands were inhabited; and it is significant, also, that as early as 1821, in a letter written by Mr. Calhoun, then secretary of war, to the Cherokees, in Arkansas, they were promised a permanent home and an outlet west, but were distinctly informed that they should have no right of soil in the outlet, but an outlet only. It is true that the outlet there spoken of is not the outlet in controversy, but the transaction tends to show what the Cherokees understood by having guarantied to them a perpetual outlet west. In construing the several treaties and the patent of 1833 as vesting in the Cherokee Nation a base, qualified, or determinable fee in the Cherokee outlet, no effect has been given to the condition in the patent that the land shall revert to the United States if the Cherokee Nation shall abandon the same; nor is it necessary to give it any effect for the purposes of this case. As the lands were ceded and granted as an outlet, the law annexes the qualification or condition that they can be used for no other purpose, and that the estate shall continue no longer than the proper use of the lands continues. That the law implies a qualification or condition in such case is clear. In Railway Co. v. Hood, 66 Ind. 580, it was held: "Where real estate is conveyed to a railway company, for and in consideration of the permanent location and construction of the depot of said railroad thereon, and such depot is constructed upon said real estate, but is subsequently removed and erected upon other land, the removal constitutes a breach of the implied condition subsequent contained in such deed, and such real estate reverts to the grantor." In this last case it is called a "condition subsequent." Now, the distinction between a base fee and an estate

on condition subsequent is not recognized by authority, but is well founded in reason, resting on the broad distinction between a condition and a limitation, and is this: In the case of an estate on condition subsequent, when it is once vested in the grantee, the estate can be destroyed only by a concurrence of two things, one of which is an active proceeding on the part of the grantor. There must be a breach of the condition, and an entry to take advantage of the forfeiture; whereas, in the case of a base fee, the qualification or the circumstance upon whose existence or nonexistence the estate depends enters into the limitation itself, becomes an integral part of the very estate, and, when the state of affairs on whose continuance the estate is conditioned and limited comes to an end, the estate itself ipso facto ceases. Scheetz v. Fitzwater, 2 Lead. Cas. Amer. Real Prop. 19-29. And, if it were held that the estate of the Cherokee Nation in the Cherokee outlet is an estate upon a condition subsequent,-that is, that it shall continue so long as it shall be used as an outlet,-the same construction must follow as to the use of the land, and it could not lawfully be used for any other purpose than that of an outlet. Any other use would be a breach of the condition, for which the United States might enter and declare a forfeiture.

As the Cherokee Nation, then, could not lawfully and of right use any part of the Cherokee outlet for the purpose of quarrying, selling, and shipping stone found therein, it could not by license authorize the complainants in this suit to operate the stone quarry, and to sell and ship the stone, in compliance with contracts such as are stated in the bill of complaint. If the lands in the Cherokee outlet can lawfully be used for the purposes of a stone quarry, they may be used for farming and other purposes as well, and the Cherokees may settle upon and occupy them as freely as they do their home lands; and the distinction between the perpetual outlet west and the permanent home, so scrupulously maintained in the several treaties, and in the patent of 1838, would be completely nullified. Such an event was not contemplated by the parties when the treaties were concluded and the patent issued.

Nor are the rights of the Cherokee Nation in the use of the Cherokee outlet enlarged by the treaty of 1866. That treaty provides: "Art. 16. The United States may settle friendly Indians in any part of the Cherokee country west of 96° to be taken in a compact form in quantity not exceeding 160 acres for each member of each of said tribes thus to be settled; the boundaries of each of said districts to be distinctly marked, and the land conveyed in fee simple to each of said tribes to be held in common or by their members in severalty, as the United States may decide. Said

lands thus disposed of to be paid for to the Cherokee Nation at such price as may be agreed upon between the said parties in interest, subject to the approval of the president, and if they should not agree, then the price to be fixed by the president. The Cherokee Nation to retain the right of possession of and jurisdiction over all of said country west of 96° of longitude until thus sold and occupied, after which their jurisdiction and right of possession to terminate forever as to each of said districts thus sold and occupied." By operation of this treaty, the title of the Cherokee Nation to the lands in the Cherokee outlet is made subject to extinguishment in favor of friendly tribes of Indians to be settled there by the United States; and, in consequence of such agreement, the Osages and several other tribes have acquired title to large tracts of land in the eastern end of the outlet, thus effectually destroying the use of the outlet as an outlet to the Cherokee Nation. But, as to the lands not sold, the Cherokee Nation still retains its possession and jurisdiction, being the same possession and jurisdiction which it had under the prior treaties and the patent of 1838. And the provision of this treaty that the United States may settle friendly tribes of Indians in any part of the Cherokee outlet clearly shows that, at the time the treaty was made, the Cherokee Nation did not claim the right, under the prior treaties and the patent of 1838, to settle upon and occupy the outlet as a home, or that they had any other use in it than that of an outlet. As said by Judge . Brewer, in U. S. v. Soule, supra, what was guarantied to the Cherokee Nation was an outlet; "not territory for residence, but for passage ground, over which the Cherokees might pass to all the unoccupied domain west." To give them the right to settle upon and cultivate the outlet, and to operate stone quarries, and remove and sell mineral, is an unwarranted extension of the guaranty, which cannot be upheld; and, if the Cherokee Nation has ceased to use the outlet as an outlet, the cesser of the use has terminated their estate, and the lands have reverted to the United States. But whether there has been a cesser of the use is rather a political than a judicial question, which should be settled by congress and the chief executive of the nation; and if the lands have been abandoned as an outlet, and subjected to other uses by the Cherokee Nation, or with their consent and by their authority, their estate has terminated, and they have reverted to the United States. It follows from the conclusion reached as to the rights of the Cherokee Nation in the Cherokee outlet that the complainants, who claim under a license from the Cherokee Nation, have no right to operate the stone quarry in question, and that their acts in doing so are wrongful, and a court of equity will not lend its aid to protect them in a wrongful

1. By treaties, laws of congress, and the patent of 1838, the Cherokee Nation was granted the use of the "perpetual outlet west" known as the "Cherokee Outlet," but such use was made subject to forfeiture in case the nation abandoned the outlet. Held, that by the purchase by the United States of all lands west thereof from Mexico, and the sale and conveyance by the Cherokee Nation of the land on the east to other Indian tribes, all right in the nation to the use and occupation of such outlet was lost and abandoned.

2. The execution of orders given by the president of the United States for the removal of intruders from government land will not be interfered with by injunction, the courts having no jurisdiction over the executive department of the government.

Injunction by Jacob Guthrie against Captain William P. Hall to restrain defendant from ejecting plaintiff from the "Cherokee Outlet." Injunction denied.

Harper S. Cunningham, for plaintiff. Horace Speed, for defendant.

SEAY, J. The plaintiff states that he is a Cherokee Indian, and a citizen of the Cherokee Nation; that said nation is the owner in fee simple of what is known as the "Cherokee Outlet," under the treaties of 1828, 1833, 1835, 1846, and the patent of 1838. That he now resides, and has resided for the last eight years, on a portion of said outlet, with his family, and made permanent improvements thereon, and that he is now grazing 3,000 head of cattle on said outlet by virtue of a lease from said nation. Plaintiff further states that the defendant, being a United States soldier, under orders from the war department, threatens and is about to remove him and his cattle from said outlet, to his irreparable damage, etc., and asks a perpetual injunction to restrain the defendant from executing said orders. Defendant answers, admitting his orders, and that he is about to execute them, but denies that the Cherokee Nation ever had any other title to the "outlet west" than an easement and a use; that the treaties under which said nation claims title to said Cherokee outlet provide that all the title conveyed thereby should revert to the United States in case the Cherokee Nation should become extinct or abandon the use of said outlet; that said nation has long since abandoned said land; that the president issued his proclamation February 17, 1890, ordering the removal of all

intruders, and all cattle from said strip or outlet; and that this court has no jurisdiction to interfere by injunction, and asks that the bill of plaintiff be dismissed. Under the treaties, laws of congress, and patent, while the title to the said 7,000,000 acres of the home tract was a fee title, the title to the "perpetual outlet west" is a mere easement, a use, subject to forfeiture in case the Cherokee Nation becomes extinct or abandons the outlet. The west end of the "outlet west" having been closed by the purchase of ali lands west thereof from Mexico by the United States, and the east end of the "outlet west" having been effectually closed by the voluntary sale and conveyance by the Cherokee Nation, for cash, of more than 2,000,000 acres, (by permission and upon the approval of congress,) to the Osage, Pawnee, and other tribes of Indians, it has ceased to be an outlet to the west, or any outlet in any sense to any place. Its character has been changed, and the object for which it had been granted has been defeated and totally destroyed, by the voluntary acts of the Cherokee Nation. This constituted an abandonment of any title theretofore vested, and there is now no tract or parcel of land that answers to the description of "outlet to the west" as used in the patent to the Cherokee Nation. The president of the United States, being the chief of the executive branch of the government to whom is intrusted the duty by the constitution of seeing that the laws are faithfully executed, and whose power and authority are coequal with and independent of the judiciary in all duties imposed upon him by law which are of a political and executive character, will not be, in those matters, interfered with by injunction; and, his proclamation in this case being executive and political, the courts have no jurisdiction in this case. The plaintiff failed to show that the damage would be irreparable without the interference of this court by injunc tion. The injunction is therefore denied, and the petition of the plaintiff dismissed.

cluded therein, so that by their inaction they should be held to have ratified it, or to be estopped to deny its validity.

4. A president of a corporation went to one holding a note against the corporation, and, after telling him that he had the money to pay the note, and after the creditor had produced the note, he told the creditor that he (the creditor) did not need the money, but that he (the president) did, and that he would give his stock in the corporation as security if he could keep it. The creditor, on consideration, decided that he did not want the stock, but said that it could stand as it was, and the president could pay it to him in a few months. This was agreed to, and the president used the money for his own purposes. Held, that the indebtedness of the corporation was thereby liquidated, so that an unauthorized note, given in renewal, was without consideration, and therefore the corporation was not estopped to deny its validity.

5. Where a creditor of a corporation permits the president to retain for his own use the money he has brought with which to pay off the note, the note being allowed to stand, the president, in giving a note of the corporation in renewal, acts for himself, and not for the corporation.

Bigelow, J., dissenting.

Appeal from district court, Ormsby county; Richard Rising, Judge.

Action by T. J. Edwards and J. M. Wright, executors of S. C. Wright, deceased, against the Carson Water Company, on a note. There was judgment for plaintiffs, but a new trial was granted defendant, from the order allowing which, plaintiffs appeal. Affirmed.

Rives & Judge, for appellants. J. D. Torreyson, for respondent.

MURPHY, C. J. This is an appeal from an order of the district court granting the respondent's motion for a new trial. The action was commenced to recover the sum of $2,000, alleged to be due on a promissory note, which is in words and figures as follows: "2,000.00. Carson City, Nev., December 8th, 1886. One day after date, we, or either of us, promise to pay to the order of Sam. C. Wright, two thousand dollars in gold coin of the United States of America, at their office in Carson, for value received, with interest, payable monthly in like gold coin, at the rate of 14 per cent. per month from date until paid. Protest as evidence of presentment and nonpayment is hereby waived. [Signed] Carson Water Co. By Alfred Helm. Pres. Carson Water Co. By G. W. Richards, Secy."

We gather from the record the following facts: Some time prior to the incorporation of the Carson Water Company, Alfred Helm and Henry F. Rice purchased the land upon which the company's reservoir is constructed, and the water right connected therewith, from W. P. Warren, and gave their promissory note in payment therefor in the sum of $2,000. On the 29th day of December, 1874, the company was incorporated, and has been in existence ever since. The affairs of the company are controlled by a board of three trustees. Some time prior to August, 1875, the Warren note becoming due, or

Warren wanting his money, Mr. Rice induced Sam. C. Wright to take up the note, which he did at a discount of $150. On the 2d day of August, 1875, at a meeting of the board of trustees of said company, the president of the Carson Water Company was empowered and instructed to make, execute, and deliver on behalf of the company, and as its act and deed, a promissory note to S. C. Wright, at 10 days' sight, for the sum of $2,000, to retire the note of W. P. Warren. In compliance with said resolution, on the 2d day of August, 1875, the following note was delivered to S. C. Wright: "Carson City, August 2d, 1875. $2,000.00. At ten days' sight we promise to pay S. C. Wright or order the sum of two thousand dollars in gold coin of the United States, and interest at the rate of one and one-quarter per cent. per month, for value received." The signatures have been torn off. On the 1st day of July, 1879, the note of "August 2, 1875," not having been paid, a new note was given, in words and figures as follows: "$2,000.00. Carson City, July 1st, 1879. One day after date, without grace, we promise to pay to Sam. C. Wright or order the sum of two thousand dollars, payable only in gold coin of the government of the United States, for value received, with interest thereon in like gold coin at the rate of 12 per cent. per month from date until paid. T. C. Pickney, Secretary." Other signature torn off. There does not appear to have been any order or resolution of the board of trustees authorizing the making or giving of the above note. In 1881 the Carson Water Company, being indebted to a number of parties, borrowed money to pay them off.

The following is the testimony of Alfred Helm, who was then the president of the company, drew the money, and was authorized to pay off the indebtedness: "On or about the 10th or 12th or 15th of March,early in March anyway,—we borrowed some money in San Francisco to take up some notes of the company outstanding in San Jose, and also to take up this note of Mr. Wright's. I went to San Jose, and paid off the notes there, and took a check in my own name, I think, to come up here to settle this note up. After I got home,-I got home Sunday, and on Monday following, I met Mr. Wright, and I told him I had the money to take up that note. We went to WellsFargo, where he has got a tin box. He went into the vault, got the box, and brought it on the counter, opened the box, took out the note, held it in his hand. I said to him that I was in a tight place at that time myself, and I said to him, 'Sam, you don't need this money, and I need it awful;' and I said, 'I will give you my third of the water company's stock as security, and let me keep this money.' I had 33 shares, and I said, 'Give me this $2,000, and you can have the stock,' and he asked me about the stock, and how much there was of it, and finally

he said, 'I don't believe I want your stock, but let it run as it stands, and you can pay it in a few months, and you can pay the interest, and let it be as it is, and not make any change.' I objected to it, but he said, 'Let it be as it is.' Afterwards I went to the secretary, Mr. Richards, and told him I used the money represented by the check. I paid my debts with some and bought stock with the rest. I ordered the interest paid at the office charged to me." This conversation referred to the note of July 1, 1879. Question by the Court: "Was there $2,000 due from the company to Mr. Wright at the time of the execution of this note of December, 1886? Answer. No, sir; I suppose it was due from me. But at the same time he met me, and said I must either pay the money I think he spoke to me a day or two before, and wanted to know if I could pay up the money, and I said, 'No,' and he said that note was about run out, and he said he would have to have a new note. He had a note, written by himself, and he told me to sign it as the president of the company, and he asked me to take it to Mr. Richards, and get him to sign it, and I think I copied the note. Anyway, that is the way that note was signed,-as you see it there. The shareholders of the company did not know anything about the note of 1886, but I knew about it. There was nothing in the books of the company, that I know of, about the note of 1886, the interest was charged to me every month, and that was done under my instructions." In reply to a question asked Mr. Helm as to how the rate of interest happened to be reduced in the note of 1886 from that charged in the note of 1879, he answered: "I don't recollect just the time it was done, but I went to him, and told him that I wanted him to reduce it, because I thought we were paying too much interest. I told him, 'You know that I have to pay that interest myself, and I can't afford it;' and he said to me, 'Let the interest go at 14 per cent.' That is the way the note of 1886 came to be drawn with interest at the rate of 14 per cent. I think that was the reason that I rewrote the note that he had written himself, and I changed the rate from 1% to 14 per cent. per month. I had a check of the Carson Water Company in my possession in the month of March, 1881, for the purpose of paying the note then outstanding in the name of Mr. Wright, and for the purpose of paying it to Mr. Wright." Mr. Wright denied that he ever had any such conversation as testified to by Mr. Helm in relation to the note of 1879. It appears from the books of the company that the interest paid upon the note given in 1879, as well as that paid on the one given in 1886, was charged to Mr. Helm from May 31, 1881, to and including the month of August, 1889.

Mr. Richards, the secretary, testified to a question asked, "How did the interest come