vided, however, that a strip of land sixty (60) feet wide on the east and a strip of land eighty (80) feet wide on the south and a strip of land one hundred (100) feet wide on the west of said tract of land is hereby reserved for street purposes when said quarter section of land shall be platted." It is the reservation or exception in the deed that is the subject of the controversy in this cause. It is admitted that the defendants are in possession of the controverted strip, and the plaintiff seeks to recover possession, based upon his deed.

must be affirmed for the reason that the trial court heard evidence and decided a material question of fact in support of which there was competent evidence. We have carefully examined the record and find noth. ing to support this contention. The only evidence in the record is that which was necessary to show the title of the plaintiff, the possession of the defendants, and the status of the land at the time of the trial. There is no evidence in the record that in the least tends to explain what the intentions of the grantor or grantees were at the

The foregoing diagram shows the present status of the strip in controversy and is explanatory of the surroundings.

It is conceded that the determination of the case must depend upon whether the provision in the deed to Edwards constitutes a reservation or an exception of the strips of land herein referred to for street purposes. The trial court held that it was an exception, that the title to the designated strips did not pass to Edwards by the deed, and pronounced judgment in favor of the defendants.

It is urged by counsel for defendants in error that the case was tried in the district court upon the theory that the deed contained an ambiguity, and that parol evidence was admissible to ascertain the intention of the parties, and they now insist that this court will require the plaintiff in error to adhere to that theory, and that the cause

time the deed to Cooke and Edwards was executed. While in many cases there is dif ficulty in determining whether the provisions in a deed constitute an exception or a reservation, it is held that the use of the word "reserve" or "except" will not necessarily control, but that the whole of the instrument will be taken into consideration, and the intention of the parties, if ascertainable, must control. The rule is well settled that in all cases requiring the terms of a deed to be construed, if there be doubt, the language will be construed most strongly against the grantor. A reservation is a clause in a deed whereby the grantor reserves some new thing to himself out of that which he granted before. It differs from an exception, which is ever a part of the thing granted, and of a thing in esse at the time. The object of an exception is to take something out of the thing granted that

would otherwise pass. In the case of a reservation the fee passes and the grantor reserves to himself some right, privilege, interest, or easement. In the case of an exception the excepted portion does not pass, but is retained in the grantor. In most every adjudicated case where there has been a conveyance of the fee and an exception or reservation of a right of way, of a roadway, or of highways, or streets, which usually are mere easements, the courts have construed the exception as constituting a reservation.

In the case under consideration, there does not seem much room for doubt. The grantor conveyed to Edwards and Cooke a specifically defined and accurately described tract of land. The measurements and boundaries given embrace the disputed strip. He then reserves a strip on each of three sides of the tract for street purposes when the quarter section is platted. The intent seems plain and the purpose apparent. He did not convey to these grantees all of the quarter section of which he was the owner, but only a small portion of it. He had no interest in the question of streets to their portion; but, when the adjacent lands yet owned by him should be platted, it was his purpose to reserve the right for streets on the three sides of the tract conveyed, which were adjacent to his remaining lands. If he had not intended to convey to his grantees the fee to these strips reserved to be used for streets when certain contingencies should exist, there was no reason whatever existing, and none can be suggested why he should embrace these strips in their deed. The great weight of authority classes this character of limitation in a deed as a reservation under which title passes to the grantees. We call attention to Prichard v. Lewis et al., 104 N. W. 989, 125 Wis. 604, 1 L. R. A. (N. S.) 565, 110 Am. St. Rep. 873; Reynolds v. Gaertner, 117 Mich. 532, 76 N. W. 3; Vincent v. City of Kalamazoo, 111 Mich. 230, 69 N. W. 501; Sullivan v. Eddy, 40 N. E. 482, 154 Ill. 199; Gould v. Howe, 131 Ill. 490, 23 N. E. 602; Elliott v. Small, 35 Minn. 396, 29 N. W. 158, 59 Am. Rep. 329; Peck v. Smith, 6 Am. Dec. 216, 1 Conn. 103; Cincinnati v. Newell, 7 Ohio St. 37; Klaer v. Ridgway, 86 Pa. 529; Duryea v. Mayor, etc., New York, 62 N. Y. 592; Wiley v. Sirdovus, 41 Iowa, 224; Bolio v. Marvin, 89 N. W. 563, 130 Mich. 82; Tiedeman on Real Prop. 843; 13 Cyc. 672, 673, and cases cited; 3 Washburn (6th Ed.) § 2353. It appears from the record that a portion of the strip of land of which the plaintiff in error seeks to recover possession is included in a street. The plat filed by Edwards as Edwards' addition to Oklahoma City, and embraces this tract of land, shows he included in his plat a strip of ground 60 feet wide along the east side of his land which had previously been used as a public highway, but which was not included in his deed,

and was not a part of the tract conveyed to him. He claims possession of a strip 100 feet wide off the west side of the land embraced in his deed. The plat filed by him shows that the east 40 feet of this strip is embraced in Edwards' avenue, one of the streets donated and dedicated by his plat. We know of no law that will permit him to recover possession of this 40-foot strip within the public streets. He is not entitled to its possession. He has dedicated it to the public, and, if the defendants are wrongfully occupying it, it is within the powers of the municipality to require them to move off. As to the west 60 feet, or a strip 60 feet wide across the west end of the tract, he procured by the conveyance before referred to, he is clearly entitled to the possession of. The question is suggested by counsel for defendants in error that, the plaintiff having brought his action for the strip 100 feet wide, he cannot recover a less quantity. It is true there are some cases where the quantity or things sued for are indivisible and the plaintiff must recover all or none. No authorities are cited, and we have found none, though we have not made a diligent search. The policy of the law is to discourage litigation, to avoid numerous lawsuits, and to settle in one case all questions which may be properly determined without prejudice to the rights of any person. In this case the facts are all before the court and consist of records, written documents, or admitted facts. No good purpose can be served in requiring a new suit to be brought, and no one can be prejudiced by a final determination of the case upon the present record. The facts are uncontraverted, and the question is one of law. There is nothing to try if the cause is remanded for action by the district court, and this court will, in the exercise of its powers, render the judgment here which the district court should have rendered.

The judgment of the district court of Oklahoma county is affirmed as to the 40-foot strip of land embraced in Edwards' avenue and reversed as to the 60-foot strip across the west end of the tract platted by Edwards and parallel with Edwards' avenue. And it is ordered and adjudged that the plaintiff, Robert J. Edwards, is the owner and entitled to the possession of a strip of land 60 feet wide, 300 feet long, immediately adjacent to Edwards' avenue, and parallel with said avenue, immediately west of block 1 of Edwards' addition to Oklahoma City, being part of the N. W. 4 of section 33, township 12 N., range 3 W., and that the defendants Ollie Brusha and Mary Elizabeth Taylor wrongfully keep him out of the possession of said land, and that he have and recover of said defendants the possession of said land, and that he recover all the costs in said cause made in the district court and one-half of the costs in this court, and that

one-half of the costs in this court be taxed to the said plaintiff in error.

All the Justices concur, except HAINER, J., who tried the cause below, not sitting.

(18 Okl. 461)

CHOCTAW, O. & G. R. CO. v. GARRISON. (Supreme Court of Oklahoma. Feb. 13, 1907. Rehearing Denied June 25, 1907.)

TRIAL-DIRECTING VERDICT.

Where the evidence clearly shows that the plaintiff is entitled to recover, and the only dispute is as to immaterial issues, it is not error for the court to direct a verdict, and, where the evidence is undisputed on all the issues necessary for the plaintiff's recovery, the court should instruct the jury to find for the plaintiff, although there may be a dispute in the evidence. as to other immaterial issues.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, §§ 376-380.]

(Syllabus by the Court.)

Error from District Court, Oklahoma County; before Justice James K. Beauchamp.

Action by the Choctaw, Oklahoma & Gulf Railroad Company against J. B. Garrison. Judgment for defendant, and plaintiff brings error. Reversed and remanded.

This was an action begun by the plaintiff in error in the probate court of Oklahoma county, March 31, 1903, against the defendant in error, to recover the sum of $45.24, with interest thereon from March 6, 1902, as freight charges upon a car of lump coal, bought by the defendant in error of the William Busby Coal Company and shipped from McAlester, Ind. T., on February 27, 1902, over the Missouri, Kansas & Texas Railroad to South McAlester, Ind. T., and thence over the line of the plaintiff in error to Oklahoma City, Okl. T. It was loaded at the Samples Coal & Mining Company, at McAlester, for which company the Busby Company acted as sales agent. The car in question is Missouri, Kansas & Texas car 21,517. The plaintiff recovered judgment for its claim in the probate court. The defendant appealed to the district court, where the case was docketed, and retried. When the case was reached for trial in the district court, by agreement of the parties, it was consolidated with the case of Wm. Busby, doing business as the Wm. Busby Coal Company, against J. B. Garrison, the same defendant as in this case, and both cases were tried together upon the same evidence and before the same jury. The jury returned separately a verdict in each case, finding for the defendant in this case, upon which judgment was rendered against plaintiff for costs. Motion for new trial was made in due time, overruled, and exceptions saved, judgment rendered on verdict, to which exceptions were saved, and the case is brought here for review.

Charles B. Stuart and Thomas R. Beman, for plaintiff in error. Chambers & Taylor, for defendant in error.

IRWIN, J. (after stating the facts). The only error relled upon by plaintiff in error for a reversal of this case is that the court refused to give instruction No. 1, offered by the plaintiff in error. Instruction No. 1 is

as follows: "You are instructed that, under the law and the evidence in this case, the plaintiff, Choctaw, Oklahoma & Gulf Railroad Company is entitled to recover, and your verdict will therefore be in favor of the said plaintiff in such amount as you find to be the freight charges from McAlester, Ind. T., to Oklahoma City, Okl. T. on the car of coal in controversy." Now, there seems to be no controversy as to the amount or correctness of the freight charges sued for. It seems to be agreed by all parties concerned that $45.24 is the correct rate on the car of coal in controversy from McAlester, Ind. T., to Oklahoma City, Okl. T. (Record, page 34). The instruction asked for, and the refusal of which is complained of, was tantamount to asking the court to direct a verdict for the plaintiff in this case. Now, if the clear, unmistakable, and undisputed evidence, and all the evidence in the case, shows the plaintiff's right to recover, then the instruction should have been given; but if, on the other hand, there is a dispute as to any material element or issue necessary for the plaintiff's recovery, or if the evidence on any material issue is such that fair-minded men might take a different view of the same, then the instruction was properly refused. It is conceded by counsel for both sides, in their brief, that three elements are necessary in order for the plaintiff to recover in this case: First, that the car of coal in question was ordered by the defendant; second, that the plaintiff delivered the coal to the defendant at his usual place of business; and, third, that the defendant accepted the car of coal. Now, while it is true that there are other elements and other issues raised in the case, such as the question of whether more cars were delivered than were ordered, and as to whether cars were not sometimes delivered by the coal company without orders and to avoid the payment of demurrage charges; but we take it that all those outside the material issues or elements are not germane to the real issues in this case, that the three foregoing and first-stated issues are the issues upon which the plaintiff must recover, if it recovers at all. This seems to be conceded by counsel for both sides. Now, as to the first issue; that is, did the defendant in this case order the car of coal in question? On pages 10 and 11 of the record, we find the evidence of William Bollinger, who was the agent of the William Busby Coal Company, and the person from whom the car in question was ordered. He testified that the car in question, to wit: car No. 21,517, was ordered by Mr. Garrison, the defendant, the witness at that time producing a copy of the invoice to show this fact; and we have

searched the entire evidence in the case, and find nowhere in that evidence that Mr. Garrison for himself, or any one for him, or on his behalf, has ever entered any express and positive denial to that statement, unless it might be his attorneys in their brief. We find, by an examination of the record, that on page 41 it appears that Mr. Garrison was called as a witness in his own behalf, and interrogated as to his acquaintance, business relations, and dealings with William Busby, and the Busby Coal Company; but nowhere in his examination is he asked the question as to whether he ordered this particular car or not, and nowhere in his testimony does he make any denial of the fact as testified to by the witness Bollinger. Therefore we take it that, when he has been on the stand and failed to deny a statement made positively by a witness for the plaintiff, and where the record fails to show any denial of that fact, it must stand in the record as undisputed that the defendant did order this particular car of coal in the manner detailed by the witness Bollinger.

Now, as to the second proposition-did the plaintiff deliver the car of coal in questionthere seems to be no dispute. In fact, counsel for defendant in error admit in their brief, on page 2, that five cars of coal were delivered to the defendant when he had, as they say, ordered but two. But, even conceding this to be the fact, it in no way, in our judgment, tends to dispute the express and positive testimony that he ordered this particular car, to wit, car No. 21,517. Defendant in error does not dispute that they delivered this car in question, together with four other cars, three of which he denies having ordered. But he claims he never received these cars. That brings us to the only remaining issue necessary to be determined in deciding this case. In the record, on page 44, is the testimony of E. J. Davis, who was an employé of the defendant, Garrison, and the person who had charge of the receiving and unloading the cars of coal shipped to Garrison's place of business. He was called as a witness by the defendant, and on that page he states as follows: "Q. Do you remember the fore part of March receiving a car, No. 21,517, of coal? A. Yes, sir. Q. On the side track there? A. Yes, sir. Q. Does your book show it there-this book here? A. This book here shows it, this first book-the first I spoke of." We think the testimony of Davis as to the arrangement between him and Bollinger, the sales agent of the Busby Coal Company, as contained on page 46 of the record, shows that he clearly understood at that time that this car of coal had been received by him as the agent of defendant, Garrison. In that testimony, in answer to the question, "What did you tell him?" he says: "Well, I walked in, and Brother Bollinger was sitting down, and looked up in my face, and said: 'What will you have?' And I told him that I was in trouble, and wanted him

to help me out, and I says: 'I have five cars out on the track at the bins, and we haven't room but for three.' And I says: 'W. W. Green has agreed to take one car, and we haven't room for all the rest, and I want you to help me out with one of them.' 'Well,' he says, 'I think I can place one car for you all right.' And I says: 'Will you do that? And he says: 'Yes, we will take care of one car.' And I says: 'Well, we can take care of three of them by hard scrouging.' Those are the words I used. And I thanked him for doing so, and went home rejoicing." Now, from this testimony, it is apparent that Davis, who was the representative of the defendant, fully understood that at that time he had received these cars, and that it was his duty to make some disposition of them. He says that they unloaded three of the cars, and in the record he gives the numbers of the cars. He also says they disposed of one car to W. W. Green. None of these numbers so given were the numbers of the particular car, the freight of which is in controversy. Hence it is apparent that at that time he understood that he had that car on his hands, and that is why he makes use of the expression: "I am in trouble, and I want you to help me out." Now, it seems to us that this testimony clearly shows the fact that the car was delivered to the defendant, but it is contended that the defendant did not receive it with knowledge that he was expected to pay the freight. We think the answer to this contention is found in the testimony of the defendant himself. On page 42 of the record, he testified as follows: "Q. Well, do you mean by that that the freight then was paid by the party that took the cars? A. Always; that is the custom on all shipments that I ever heard of. The man that receives the goods pays for the freight as well as the coal, or anything else." And, on page 11, in the testimony of the witness Bollinger, the question was asked: "Q. Under that contract, who was to pay the freight on that coal, Mr. Busby or Mr. Garrison? A. Mr. Garrison. Q. Were the cars of coal furnished in pursuance of this order of Mr. Garrison, for the two cars of coal? A. Yes, sir. Q. Can you give the numbers of those cars? A. I can give them off of the book here. Q. State whether or not Missouri, Kansas & Texas 21,517 was one of the cars of coal furnished in pursuance of Mr. Garrison's order? A. It was."

Nowhere in this entire record is this testimony in any way disputed. Now, we think it must be apparent from this that there is no dispute that this car was received by the defendant, with the full knowledge that he was to pay the freight. Now, we have examined the entire record, and we fail to find anywhere any dispute as to any one of these three propositions. We think that the consolidation of this case with the other case of William Busby Coal Company against Garrison, and the testimony in that case, must

It

have confused the jury and the court in the court below. The issues in that case are not before us, neither is the evidence in that case, and it is not necessary for us to pass upon the correctness or incorrectness of the verdict of the jury in that case; but it is apparent from the undisputed evidence in this case there was no defense set up or proven to the cause of action of the plaintiff. certainly could not be held to be a defense that, because this coal had been ordered by the defendant, had been delivered by the plaintiff, and had been accepted by the defendant, by transferring his title to that coal to the Busby Coal Company, or by any arrangement between him and the Busby Coal Company, by which they were to take this coal off his hands, could, in the absence of, and without the knowledge of, the plaintiff, in any way effect the rights of the plaintiff. It seems to us that, conceding all that is claimed in this record by defendant in error -that is, that after this car of coal was delivered to him at his place of business, and, as the record shows, was accepted by his agent-he could enter into an agreement with the Busby Coal Company, by which they were to take this car off his hands, that such an arrangement as that would not constitute a defense against the cause of action of this plaintiff for the regular freight rate for which he became indebted to plaintiff on the delivery of the car of coal. It certainly could not bind the plaintiff; they not having been a party to the transaction, and, as far as the record shows, had no knowledge of it. We think the refusal of the court to direct a verdict under this situation was clearly error.

For this reason the decision of the district court is reversed, at the costs of the defendant in error, and, as there is no dispute as to the amount or correctness of the freight charges, it is ordered that the cause be remanded, with directions to the district court to set aside the verdict of the jury and the judgment of that court, and to render judgment in favor of the plaintiff and against the defendant in error for $45.24, and interest from March 6, 1902, and costs, including the costs of appeal. All Justices concurring.

(18 Okl. 510)

WRIGHT v. UNITED STATES. (Supreme Court of Oklahoma. June 13, 1907.) MURDER-INDICTMENT-WHEN SUFFICIENT.

Where the charging part of an indictment for murder is in one sentence and the word "feloniously," used in relation to the assault, is so connected with the subsequent portions of the sentence as to modify them by a fair and reasonable interpretation, it is not necessary to repeat the word "feloniously" in connection with each act necessary to constitute the crime; but if the pleader uses words to describe the intent with which the mortal wound was inflicted, other than those used to charge the intent with which the assault was made, the words "then and there," used in connecting the infliction of the mortal wound with the felonious intent, will

be interpreted to refer to time and place merely, and not as a vehicle to carry the intent with which the assault was made through the indictment so as to modify the intent in making the mortal wound.

(Syllabus by the Court.)

Error from District Court, Caddo County; before Justice Frank E. Gillette.

R. A. Wright was convicted of murder, and brings error. Reversed and remanded. Whitaker & Whitaker and Glitsch, Morgan & Glitsch, for plaintiff in error. Horace Speed, U. S. Atty.

BURWELL, J. On April 6, 1906, the defendant, R. A. Wright, was indicted for the murder of William Slattery. It is alleged that the crime was committed within Kiowa county, but on an Indian reservation. Hence the case is prosecuted in the name of the United States. The defendant was duly arraigned, and, after demurring to the indictment and receiving an adverse ruling, he entered his plea of not guilty. A change of venue was taken to Caddo county, where a trial was had, which resulted in a conviction of murder, and the punishment fixed at death. Proper exceptions having been saved, an appeal was taken to this court.

The only error urged is that the indictment is not sufficient to charge the crime of murder, in that it does not allege that the defendant did "feloniously" commit each step necessary to constitute the crime. The indictment, omitting the formal parts, is in the following language: "The grand jurors of the United States of America, within and for said county, having been duly impaneled, sworn and charged to inquire into and true presentment make of all public offenses against the laws of the United States of America, committed or triable within said county, in said territory of Oklahoma, upon their oaths aforesaid, in the name and by the authority of the United States of America, do find and present: That on, to wit, the 13th day of November, in the year of our Lord one thousand nine hundred and four, in the Indian reservation, commonly known as the 'Indian Pasture,' which was then and there an Indian reservation under the laws of the United States, and under the sole and exclusive jurisdiction of the United States, in said county, and within the jurisdiction of this court, R. A. Wright, who was then and there a white man, not an Indian, then and there being, did, then and there, unlawfully, willfully and feloniously, with force and arms, against and upon the body of William Slattery, a human being in the peace of the United States, did make an assault, and a certain shotgun then and there loaded with gunpowder and certain leaden balls, and then and there held in the hands of said Wright, he, the said Wright, deliberately, of malice aforethought, and with the premeditated design to effect the death of said Slattery, and without authority of law,