stage of the proceedings, upon such terms as may be just. When a continuance is granted on account of the absence of evidence, it shall be at the cost of the party making the application, unless the court otherwise order." This application was based upon the ground that the plaintiff in error was sick and unable to attend court. It was supported by the affidavit of the attending physician and by the affidavit of counsel for plaintiff in error. The affidavit of the physician stated that the plaintiff in error was in a condition of pregnancy, which had progressed for a period of over seven months; that at said time she was afflicted with a case of acute cystitis; and that her condition was such that she could not attend court on the 1st day of December, 1900, the day that this case was set for trial. The physician further testified that it would not be advisable for her to attempt to attend court during said term, which he was informed closed on December 17, 1900. The attorney for plaintiff in errortestified that he could not proceed with the trial of said cause, on account of the absence of the plaintiff in error, who was one of the defendants in said cause, and a material witness in her own behalf. The facts to which she would testify were then fully set forth in the affidavit; and it was further stated in said affidavit that the said facts could not be proven by any other witness, and that counsel could not safely proIceed with the trial of said cause without the presence of the plaintiff in error to aid him in properly presenting the case to the court, and that said application was made in good faith, and, if said cause was continued until the next term of court, the attendance of said plaintiff in error could be procured. This showing was made on November 30, 1900; the cause having been set for trial on December 1, 1900. No counter showing was made by the plaintiff or by the defendant in error. The court overruled the application for a continuance, to which the plaintiff in error duly excepted, and assigns as error here. It is a settled rule of law that an application for a continuance is addressed to the sound discretion of a trial court, and that the granting or refusal to grant a continuance will not be reversed by an appellate court unless it clearly appears that there is an abuse of discretion. We think that the showing in this case was sufficient to entitle the plaintiff to a continuance of the case, and that it was an abuse of discretion to refuse to grant it. In this case the affidavit of the physician shows that the plaintiff in error was physically unable to attend the trial. The affidavit of her attorney shows that she was not only a material witness in her own behalf, but that her presence was necessary for the purpose of aiding her attorney in a proper presentation of the cause. It is true that the defendant in error consented that the affidavit

of the plaintiff in error may be treated as her deposition, but this fact did not satisfy the law. The plaintiff in error had a right to be present when she was able to attend court, and not only testify in her own behalf, but to assist counsel in the presentation of said cause. The supreme court of California, in Jaffe v. Lilienthal, 101 Cal. 175, 35 Pac. 636, in passing upon this question, said: "It seldom happens that a trial can be properly had in the absence of the plaintiff, even where he is disqualified as a witness, especially where it is to be tried upon oral testimony. With all the care that can reasonably be taken by both attorney and client, some matter of vital importance is liable to be overlooked by them until the trial calls it to the recollection of the plaintiff, and this is especially true in relation to matters purely in rebuttal. It is the right of parties to be present at the trial of their cases. This right may be waived, and should be held to be waived where the absence of the party is voluntary, and under circumstances which ought not to induce a reasonable man, having a due regard for the rights and interests of others and of the public, all of whom are interested in the due and prompt administration of justice, to absent himself. So far as the want of preparation on the part of the attorney is concerned, the most laborious and painstaking preparation on his part would not have prevented the sickness and absence of his client; nor does it appear that, if the plaintiff had not been sick, the necessary preparation could not have been made after the cause was set for trial."

For the reasons herein stated, the judgment of the district court of Garfield county is reversed, and the cause remanded, with directions to grant a new trial. All the justices concurring, except IRWIN, J., absent.

(12 Okl. 130)

MCQUISTON v. WALTON. (Supreme Court of Oklahoma. July 18, 1902.) FORCIBLE ENTRY-LAND DEPARTMENT — TI

TLE TO LAND-HOMESTEAD CLAIMANTS. 1. Where the land department has finally determined the rights of adverse claimants to a tract of public land, the successful claimant, who has the homestead entry, is entitled to the possession of the land, and forcible detainer is a proper remedy to invoke against one who refuses to surrender and forcibly withholds possession.

2. The courts will carry into effect the decisions of the officers of the land department, and protect the possessory rights of the successful litigant, so long as the title remains in the United States.

3. Title cannot be determined in this class of actions, nor will the courts permit an improper plea setting up title to devest them of jurisdiction and deprive the claimant of the right to the remedy given him by statute.

4. The courts of law cannot withhold relief from one entitled to it, in order to enable his

3. See Forcible Entry and Detainer, vol. 31, Cent. Dig. § 31.

adversary to construct the defenses for a prospective attack when favorable conditions shall arise.

5. It is settled by a long line of decisions that a court will not inquire into the qualifications of homestead claimants until after the title has passed from the United States, but before title has passed the courts will inquire into the status of parties as determined by the land department sufficiently to determine and furnish protection for their possessory rights.

(Syllabus by the Court.)

Error from district court, Kay county; before Justice Bayard T. Hainer.

Action by Benjamin F. Walton against Simeon L. McQuiston before a justice. Judgment for plaintiff was affirmed in the district court, and defendant brings error. Affirmed.

S. H. Harris, for plaintiff in error. Ransom & Bailey, for defendant in error.

BURFORD, C. J. This is an action in forcible detainer, originally commenced before a justice of the peace in Kay county. The plaintiff below, Benjamin F. Walton, recovered judgment in the justice court. McQuiston appealed to the district court of Kay county, and the case was there tried to the court by consent of parties, and judgment again pronounced in favor of Walton, from which appeal is taken to this court.

The record presents but one question. The defendant below, McQuiston, admits that he and plaintiff were both claimants before the land department for the same tract of land, and that their claims have been finally determined in the land department in favor of Walton, and that the title is yet in the United States; but he alleges that the officers of the land department misapplied the law, and that he is entitled to acquire title to the land, and intends bringing his action in a court of equity to declare the patentee a trustee for him, and establish a resulting trust, as soon as Walton shall make final proof and acquire the legal title. The question of title cannot be tried in this action, nor can the courts deal with the question of title as between adverse claimants so long as the fee rests in the United States. Under the homestead laws of the United States, the homestead entryman is entitled to the exclusive possession of the land as against a claimant whose rights have been adversely and finally determined by the officers of the land department. It is the duty of the courts to give effect to the decisions of the officers of the land department of the United States, and protect the possessory rights of those who have been determined to be entitled to the same. If the law works a hardship, or results in a loss of the prospective rights of any claimant, then such condition is a proper subject for legislation, and not for judicial cognizance. Forcible detainer is the remedy provided by law for obtaining possession of lands detained from another, without right. The right of possession is all that is involved, and the question of title cannot be brought into such an action in such manner

as to devest the court of its jurisdiction and deprive the plaintiff of the remedy given him by statute. Under the pleadings and evidence in this case the judgment of the court could not have been otherwise.

The judgment of the district court of Kay county is affirmed, at the costs of the plaintiff in error. All the justices concurring, except HAINER, J., who tried the case below, not sitting, and IRWIN, J., absent.

(12 Okl. 121)

BROWN v. HARTSHORN. (Supreme Court of Oklahoma. July 18, 1902.) FORCIBLE ENTRY-ISSUES-TITLE TO LANDAPPEAL-POSSESSION-EVIDENCE

PUBLIC LANDS.

1. In actions of forcible entry and detainer or forcible detainer, the title to real estate cannot be put in issue or litigated. The right to possession is the only issue that can be determined, and on appeal to the district court the jurisdiction is appellate, and not original, and only such issues as are within the jurisdiction of a justice of the peace can be litigated or determined.

2. The thing in dispute in actions of forcible detainer and forcible entry and detainer is not the title to the real estate, nor the right to acquire title, but the mere right to its possession. If the title or right to title becomes involved, it is as an incident only, and not as the main subject of the controversy. and evidences of title may be introduced in evidence, and considered on the trial of such causes, for the purpose of determining the claim to the right of possession.

Title

3. Where two parties have been claimants to a tract of public land, and the adverse claims have been finally disposed of in the land department, and the successful claimant has made his homestead entry, such entryman is then entitled to the undisturbed possession of the land as against the defeated claimant, and the courts will inquire into the possessory rights sufficiently to give effect to the decisions of the land department until the title has passed from the United States, and forcible detainer is a proper remedy to obtain possession where the defeated claimant refuses to surrender possession, and forcibly detains the

same.

(Syllabus by the Court.)

Error from district court, Kay county; before Justice Bayard T. Hainer.

Action by Charles C. Hartshorn against Henry Brown. Judgment for plaintiff before a justice was affirmed in the district court, and defendant brings error. Affirmed.

Pancoast & Bowles, for plaintiff in error.

BURFORD, C. J. The defendant in error, Charles C. Hartshorn, brought his action before a justice of the peace in Kay county against the plaintiff in error, Henry Brown, to recover possession of certain real estate, which he alleged the said Brown unlawfully, forcibly, and wrongfully occupied and detained from him. The bill of particulars alleged ownership in the plaintiff, but the action was purely one in forcible detainer for possession. Brown filed a general denial, and

2. See Forcible Entry and Detainer, vol. 23, Cent. Dig. § 138.

also in a lengthy answer alleged that the real estate was public land, and that both he and the plaintiff were claiming it as a homestead. It appears from this answer that the right to the land has been the subject of controversy between the parties to this action before all the tribunals of the land department, and finally determined and disposed of by the secretary of the interior, and that at the time of bringing this action Hartshorn had the homestead entry, and was living upon and occupying all of the quarter section, except about five acres; that Brown was occupying this five acres, and refused to vacate it after proper notice. After trial and judgment before the justice of the peace, the cause was appealed to the district court, and there tried to the court without a jury, and judgment rendered in favor of Hartshorn, the plaintiff below. From this judgment Brown appeals to this court.

The contention of plaintiff in error is that the officers of the land department, who determined the issues adversely to him in the contest case, misconstrued the law, and committed errors of law, by reason of which he was wrongfully deprived of his right to acquire title to said land, and that, as it is his purpose to bring an action to have a resulting trust declared as soon as Hartshorn procures a patent, he should be permitted to occupy a portion of the land until he can bring such action.

It has been repeatedly held that the action of forcible detainer, as provided by our statute, is purely a possessory action, and that questions of title or right to title cannot be determined in such actions. If title is involved, it is only as an incident, and may be inquired into, for the purpose of determining who has the right to possession. McDonald

v. Stiles, 7 Okl, 327, 54 Pac. 487; Packing Co. v. Howe, 62 Kan. 587, 64 Pac. 42; McClain v. Jones, 60 Kan. 639, 57 Pac. 500; Conaway v. Gore, 27 Kan. 122; McNamara v. Culver, 22 Kan. 661.

The only issue the court could determine in this case was whether the plaintiff, Hartshorn, was entitled to the possession of the land in controversy at the time of bringing his action, and whether the defendant, Brown, forcibly kept him out of possession. It was admitted that Hartshorn had the homestead entry; that the land department had finally disposed of the contest before its tribunals; that Brown was forcibly withholding from Hartshorn the possession of about five acres of the tract in dispute. Under these facts, we think the court committed no error in rendering judgment of restitution. This court has repeatedly held that where two parties have been claimants to a tract of public land, and the adverse claims have been finally disposed of in the land department, and the successful claimant has been permitted to make homestead entry, such entryman then becomes entitled to the undisturbed pos

session of the tract as against the unsuccessful claimant, and such unsuccessful claimant, by refusing to vacate the land, and continuing to occupy the same, becomes a trespasser, and his possession is wrongful; and the courts will give effect to the decisions of the land department so long as the title is in the United States. Woodruff v. Wallace, 3 Okl. 355, 41 Pac. 357; Reaves v. Oliver, 3 Okl. 62, 41 Pac. 353; Barnes v. Newton, 5 Okl. 428, 48 Pac. 190, 49 Pac. 1074; Cox v. Garrett, 7 Okl. 375, 54 Pac. 546; Calhoun v. McCornack, 7 Okl. 347, 54 Pac. 493; Glover v. Swartz, 8 Okl. 642, 58 Pac. 943; McDonald v. Brady, 9 Okl. 660, 60 Pac. 509; Barnett v. Ruyle, 9 Okl. 635, 60 Pac. 243. We see no reason why one who has been determined by the proper tribunal rightfully entitled to the possession of a tract of public land should be forcibly kept out of possession by one who proposes at some future time to wage a suit against him to determine the correctness of such determination. Forcible detainer was the proper remedy in this action to determine the right to immediate possession. Nothing else was involved, and no other questions could be determined. The answer, and the evidence offered in support of the answer, attempted to put in issue and have determine the right to the title, which could not be done in a purely possessory action.

The question argued by counsel as to the qualifications of Brown to make homestead entry cannot be determined in this action.

No error was committed by the district court of which the plaintiff in error can complain, and the judgment is affirmed, at the costs of plaintiff in error. All the justices concurring, except HAINER, J., who tried the case below, not sitting, and IRWIN, J., absent.

(12 Okl. 82)

SOUTHERN KANSAS RY. CO. et al. v. OKLAHOMA CITY et al. (Supreme Court of Oklahoma. July 18, 1902.) EMINENT DOMAIN COMPENSATION - PROCEDURE-RAILROAD RIGHT OF WAY-TURNOUTS AND SIDINGS-HIGHWAY CROSSINGSDAMAGES OPENING STREETS-MEASURE

OF DAMAGES.

1. Article 5 of the amendment to the constitution of the United States provides: "Nor shall private property be taken for public use, without compensation." "Property," within the meaning of this constitutional provision, includes not only real estate held in fee, but also easements, personal property, and every valuable interest which can be enjoyed and recognized as property; and if it is proposed to be appropriated for the public use in such a manner as to deprive the owner of the beneficial enjoyments thereof, or where such appropriation would cause serious impairment or deprivation of such property, then such deprivation would be an appropriation to "public use," and the owner is entitled to just compensation.

2. Whenever it is proposed to appropriate private property for a public use, provision must be made for "just compensation" to the party proposed to be injured, and it must be made by "due process of law"; and if the statute of the territory makes provision for the

appropriation of such property or the making of compensation therefor, the method of appropriation of such property provided for in the statutes must be pursued.

3. The right to occupy and use the lands occupied by the plaintiff company is derived from an act of congress of July 4, 1884, entitled, "An act to grant a right of way through the Indian Territory to the Southern Kansas Railway Company, and for other purposes," and provides: "That the Southern Kansas Railway Company, a corporation created under and by virtue of the laws of the state of Kansas, be, and the same is, hereby invested and empow ered with the right of locating, constructing, owning, operating and maintaining a railway line through the Indian Territory,

with the right to construct, use and maintain such tracks, turnouts and sidings as such company may deem it to their interests to construct along and upon the right of way and depot grounds hereby granted. Sec. 2. That a right of way one hundred feet in width through said Indian Territory is hereby granted for said main line and branch of the Southern Kansas Railway Company, and a strip of land two hundred feet in width, with a length of three thousand feet, in addition to the right of way, is granted for stations for every ten miles of road. Pursuant to this, ground turnouts and sidings have been constructed upon the right of way outside of the depot and station grounds especially provided for, together with such switching posts and other mechanical facilities as are necessary for the operation of the main tracks, turn-outs, and sidings. The plaintiff company is invested with the right and authorized to construct such turn-outs and sidings upon the right of way throughout the Indian Territory, as well as upon such grounds as have been specially granted for the purpose of stations and depot grounds.

4. These turn-outs and sidings, together with the switches and other mechanical appliances for their necessary operation, constructed under and by virtue of the grant of authority in the act of congress, having required the expenditure of money, constitute property.

5. The plaintiff in error is bound by the conditions and limitations contained in its charter, which it secured from congress. The pow er authorizing the proper authorities to lay out and extend roads and highways over and across the right of way of said railroad is conferred by section 9 of said act, and is a condition coupled with the grant of right of way, and, the company having accepted said grant subject to such conditions, it is the duty of such company, and it may be required by the proper authorities, to open, construct, and maintain, at its own expense, any road or highway crossings, without condemnation proceedings, and without compensation or claim for damages, whenever the same may be done without destroying the use of the improvements made by the company for the purposes for which congress granted their right of way. The right of the public to cross the right of way, roadbeds, tracks, sidings, or other surface improvements is not so inconsistent with the use granted to the railway company as to entitle the company to compensation or damages. Such inconveniences or burdens as are incident to the use of such crossings by the public, the company voluntarily assumes by the acceptance of the grant.

6. The term "highway" is a general name for all kinds of public ways, including county and township roads, and streets and alleys in cities, towns, and villages.

7. The trial court specially found that the opening of First street for travel would necessitate the shortening of the side tracks and turn-outs, and the rearrangement of all the side tracks converging into First street. This, then, will, to the extent that the company is required to shorten its side tracks and turn-outs and the rearrangement of the same, be not only a seri

ous impairment, but an actual destruction, of such property rights. The use of the crossings for the public street will, therefore, to that extent, be inconsistent with the use to which the railway company has already appropriated its right of way within the terms of the grant, and to such an extent it would be an appropriation of private property for the public use without just compensation, and is forbidden by the fifth amendment to the federal constitution, and was not contemplated by the conditions imposed in the grant by congress, and is inconsistent therewith.

8. Upon the facts found by the court in this case, the city will not be authorized to open First street, until it has condemned, had appraised, and paid for such improvements of the railroad company, within said street, as it will be found must necessarily be removed in order to permit the public to use said highway or street crossing in common and jointly with the railroad company.

9. The measure of damages in such proceedings is the value of the expense of removing such switch stands or other structures above the surface of the tracks as must be removed, and the expense of shortening or lengthening such of the side tracks as will necessarily have to be changed, so as to place the turn-outs outside the limits of the traveled portion of such street when opened.

(Syllabus by the Court.)

Error from district court, Oklahoma county; before Justice B. F. Burwell.

Action by the Southern Kansas Railway Company and the Atchison, Topeka & Santa Fé Railway Company against the city of Oklahoma City and others. Judgment for defendants, and plaintiffs bring error. Modified.

This proceeding was an injunction in the district court of Oklahoma county, to restrain the defendants from entering upon the right of way of plaintiffs at First street and California avenue in Oklahoma City, and opening the same to the public travel over and across their right of way, station grounds, tracks, switches, platforms, and improvements, and to prevent the defendants from tearing up the tracks, platforms, and improvements of the plaintiffs at those streets. The plaintiffs averred that the defendant city was threatening to enter upon and remove the structures and property of the plaintiffs from their right of way, and to extend the proposed streets across it, without having taken any proceedings to condemn or make any compensation to the plaintiffs therefor, and that the opening of the streets as proposed would greatly impede the transaction of the plaintiffs' business, and cause great and irreparable injury to plaintiffs' property.

The plaintiffs' railroad was constructed, and the right of way and station grounds acquired, under an act of congress of July 4, 1884 (23 Stat. 73), before the opening of Oklahoma to settlement. Its right of way and station grounds were located upon the east side of the S. W. 4 of section 34, township 12 N., range 3 W. I. M. After the plaintiffs had built their line and occupied their station grounds at the points in ques

8. See Eminent Domain, vol. 18, Cent. Dig. § 224, 316, 350, 351.

tion, the territory was opened for settlement, and the town site of the defendant city was surveyed, platted, and entered as a town site. In platting and surveying the town site, only that portion of the S. E. 4 of section 33 lying west of the west line of the right of way and station grounds of the plaintiff was platted. By an act of congress of August 8, 1894, the S. W. 14 of section 34, lying on the east side of the railway tracks and station grounds of the plaintiff, was donated, and was immediately thereafter platted, as an addition to the defendant city. On January 22, 1893, and December 1, 1893, ordinances were passed, by the city council of Oklahoma City, for the opening of First street and California avenue, respectively, and on May 23, 1898, the mayor and city council passed a resolution that First street and California avenue be opened over the plaintiffs' tracks and right of way. No proceedings were ever taken to ascertain the injury to the plaintiffs' property by reason of the opening of such streets, or to ascertain what compensation was due to the plaintiffs on account thereof. The Choctaw, Oklahoma & Gulf Railroad Company constructed its railroad over and across the track of the plaintiffs at the point where the alley between First and Second streets, prolonged east, would cross the same, in or about the month of May, 1891, and at the time made an agreement in writing, for said crossing, by which said agreement plaintiffs were entitled to have constructed at said crossing an interlocking plant and system; and afterwards plaintiffs brought suit against the Choctaw, Oklahoma & Gulf Railroad Company for a specific performance of that contract, which ripened into a decree August 1, 1898, and such interlocking plant and system was immediately constructed, which suit was brought long before the commencement of this action.

This cause was heard upon oral testimony and an agreed statement of facts, by which it was agreed that the court should take judicial notice of the act of congress of July 4, 1884 (23 Stat. 73). It appears in the evidence that the streets of the defendant city which run east and west, and intersecting the railroad line, right of way, and station of the plaintiff companies, are, beginning north of said station, and lying successively parallel to each other, north and south, as follows: Fourth street, Third street, Second street, First street, Main street, Grand avenue, California avenue, and Reno street; and that the street of said city which runs from north to south one block west of said railway line and station grounds is Broadway; and that the station grounds of said railway companies begin at a point 80 feet south of First street and the intersection thereof with the said railway lines, and runs southward beyond Reno street. That the depot building and platform for the accommodation of passenger traffic of said railway companies is

built within said station grounds, and between Grand avenue on the north and California avenue on the south, provided the said streets were extended across the said station grounds, and that said California avenue would, if extended as proposed by said city, cross said railway lines, cause the removal of a large part of the platform of said station grounds, and would pass within a few feet of the building thereof.

Special findings of fact were prepared and submitted by the plaintiffs, which were refused, and the court thereupon made special findings of fact of its own, a part of which are as follows:

"(1) That the right of way and tracks of the Southern Kansas Railway Company and the Atchison, Topeka & Santa Fé Railway Company run north and south through the city of Oklahoma City, as shown by plat introduced in evidence and marked 'Exhibit C'; that the switch yards of said railway companies' extend from a point south of California avenue to a point south on First street. as shown by said plat Exhibit C; that, at and prior to the commencement of this action, the said railway company had one switch stand in said street, which operated three tracks; that since the commencement of this suit the interlocking system and other improvements have been placed across said First street; that on First street, east of the right of way of the plaintiffs, is located the freight depot of the Choctaw, Oklahoma and Gulf Railroad Company, besides an elevator and some other small institutions; that west of said plaintiffs' right of way, on said First street, are located several business houses; that First street runs east and west at right angles with plaintiffs' right of way, and that Second street is the first street north of First street, running parallel with First street, and that on Second street there is a crossing over plaintiffs' right of way; that Main street is the first street south, running parallel with said First street, and that there is a crossing over the plaintiffs' right of way on said street; that there are also crossings over plaintiffs' right of way on Grand avenue and also Reno avenue, the second and fourth streets south of First street, as shown by Exhibit C; that First street, by reason of the lay of the ground and the condition of the tracks of the plaintiffs' right of way, is the most convenient street to travel in going from any business house on First street, or any of the streets on Broadway or west of Broadway street [Broadway is the first street running north and south west of plaintiffs' right of way, as shown by Exhibit C]: that Main street, Grand avenue, and Second street. nor either of them, are taxed to their fullest capacity to accommodate the travel over them. and that the crossing over the plaintiffs' right of way on each of said streets is not the full width of the respective streets; that all persons located on First street west of plaintiffs' right of way, and west of Broadway