accrues. The plaintiff did not complete the contract to do the work and furnish the materials until after the law of March 12, 1890, took effect, and there was no breach on the part of the water and irrigation company until after such completion, and the statement required was not filed till after that. It is plain that the court committed no error in applying the law of March 12, 1890, to the facts of the case. Turney v. Saunders, 4 Scam. 527; Ogden v. Saunders, 12 Wheat. 349.

The Bear Lake & River Waterworks & Irrigation Company insists that the court erred in holding that the plaintiff and Corey Bros. & Co. had a lien on the irrigation ditch in question, because it found that the right of way was acquired after the lien attached. The ditch was constructed on the public lands of the United States, for irrigation purposes, and the right of way was obtained by going upon the land, and making the ditch. By so doing the water and irrigation company obtained a right to occupy so much of the land as was necessary for its canal. It acquired such a right to use or transfer the same as the law recognizes and protects. Sections 2339 and 2340 of the Revised Statutes of the United States are as follows: "Sec. 2339. Whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for the construction of ditches and canals for the purpose herein specified is acknowledged and confirmed; but whenever any person, in the construction of any ditch or canal, injures or damages the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage. Sec. 2340. All patents granted, or pre-emption or homesteads allowed, shall be subject to any vested and accrued water-rights or rights to ditches and reservoirs used in connection with such water-rights, as may have been acquired under or recognized by the preceding section." These sections recognized the right of individuals to go upon the public land of the United States, and to construct ditches and canals for mining, agricultural, manufacturing, and other useful purposes, and the right of way so taken and held the law acknowledges and confirms, and makes all patents granted, and pre-emptions and homesteads allowed, subject to such rights. Jennison v. Kirk, 98 U. S. 453; Broder v. Water Co., 101 U. S. 274. The law under which this suit was instituted, securing liens to mechanics and others, declares "that whoever shall do work or furnish materials by contract, express or implied with the owner of any land shall have a lien upon

owner

such land, building, structure or other improvement for the amount and value of the work so done or materials so furnished to the extent of the interest or claim of such auy person having an assignable, transferable or conveyable interest or claim in or to any land building, structure or other property mentioned in this act, shall be deemed an owner." Laws 1890, p. 24, § 1. The section also provides that the lien shall attach to another or greater interest in the property acquired by such owner subsequent to the commencement to do work or furnish materials, before the lien is estab lished by process of law. The lien of the plaintiff and of Corey Bros. & Co. relates to the time they commenced work on the ditch, and as fast as it was constructed the right of way was obtained by the water and irrigation company. The contract was binding on both parties, and we must hold that the lien attached as the work progressed. The water and irrigation company will not be heard to say that the lien did not attach to the ditch which the parties who constructed it brought into existence. The law will not permit the company to say "We have the property that your labor created and gave us, but we will not compensate you for it, or concede your lien to secure its payment." We are of the opinion that the defendant was the owner of the ditch, within the meaning of the law quoted, and that a lien to secure the amount due the plaintiff and Corey Bros. & Co., respectively, relates to the time they commenced work. Turney v. Saunders, 4 Scam. 527.

The Jarvis-Conklin Mortgage Trust Company insist that the court below erred in holding that the lien in favor of Corey Bros. & Co. on the canal was superior to the trust deed on the same property to secure its debt. It is true that the Jarvis-Conklin Mortgage Trust Company obtained their deed of trust before Corey Bros. & Co. commenced work, an i that the deed, by its terms, included all the property the water and irrigation company then had, or might thereafter acquire. When mechanics, material men, or other persons make improvements on land on which there is a mortgage or trust deed, such mortgage or trust deed will be superior to the lien to secure the mechanics or other persons; but the water and irrigation company had no ditch or canal which the deed of trust could transfer to the trustee, until Corey Bros, & Co., by their labor, brought it into existence, and as fast as they constructed the canal their lien attached to it. The trust deed could not transfer the canal from the water and irrigation company to the trustee until it was constructed; until the property came into existence. Under the mechanic's lien law relied upon, we do not think a man can execute a deed of trust on a canal to be constructed on the public lands, and then employ men to build it. and after they have done so, and claim the security of the lien,

turn upon them, and say he had transferred the property to a trustee before their labor had brought it into existence. We are of the opinion that the court below was correct in holding the lien of Corey Bros. & Co. superior to the trust deed.

In the suit by the subcontractors Annett & Thompson against William Garland, and the suit of the latter against the subcontractor McMartin, it was alleged that the measurements and estimates authorized by the contracts, and made by the engineer of the Bear Lake & River Waterworks & Irrigation Company, were fraudulent and incorrect; and on motion of Garland the latter company was made a party to those actions, and the issue as to the correctness of the measurements and estimates of the engineer was tried, and decided against the company, and the actual amount found due exceeded such estimate by $23,000, and a decree was rendered against Garland for the full amount of the subcontractors' demand, including this excess,-$23,000. A decree was also rendered in favor of Garland against the water and irrigation company for this $23,000, but the amount due Garland, according to the estimates of the engineer, was not litigated between him and the company. In the suit in hand the plaintiff claims, not only the amount due according to the estimate, but the $23,000 excess, as well. The trial court, in its decree, gave him $89,551.33, the amount due according to the estimates of the engineer, but disallowed the excess, for the reason that plaintiff had a decree for that part of his claim against the water and irrigation company. He alleges this ruling as error. The decree against the water and irrigation company in favor of Garland, in the suit of the subcontractors against him, was reversed by this court on appeal, (30 Pac. Rep. 365,) and from the judgment of reversal an appeal is now pending in the supreme court of the United States. We must presume that the plaintiff will finally obtain whatever is due him in that case. We hold that the court below rightly excluded the amount in litigation in that case from the decree in this.

Numerous other errors are alleged in this record, which, upon examination, we hold are not well assigned. The judgment of the court below is affirmed.

BARTCH, J., concurs.

JORDAN et al. v. GOLDMAN. (Supreme Court of Oklahoma. Sept. 16, 1891.) PUBLIC LANDS-INDIAN TITLES-CONSTRUCTION OF

TREATIES.

1. United States treaties with the Cherokee Nation of May 6, 1828, and February 14, 1833, granted it 7.000.000 acres for a permanent home, and further provided that, "in addition to the 7,000,000 acres of land thus provided for and bounded, the United States further guaranty to the Cherokee Nation a perpetual

outlet west, and a free and unmolested use of all the country west, of the western boundary of said seven millions of acres, as far west as the sovereignty of the United States and their rights of soil extend." Treaty of December 29, 1835, provided for the setting apart of 800,000 acres as a part of the permanent home of the Cherokee Nation, "it being apprehended that the seven million acres set apart for that purpose were not sufficient." Held, that the Cherokee Nation could use the lands set apart for an outlet for that purpose only, and a settlement by them or others under license from them on the outlet, and the operation of stone quarries thereon, was an unwarranted extension of the guaranty made by the treaties.

2. Nor are the rights of the Cherokee Nation in such outlet enlarged by the treaty of 1866, which provides that the United States may settle friendly Indians in any part of the Cherokee outlet, the lands to be paid for to the Cherokee Nation, and that the Cherokee Nation may retain the right of possession and jurisdiction over all of the outlet until thus sold and occupied, after which their jurisdiction and rights of possession to cease forever as to the land so sold and occupied.

Bill by J. W. Jordan and others against Henry J. Goldman for an injunction to restrain defendant from ejecting them from the Cherokee outlet, and from closing up a quarry operated by them. Injunction de nied.

James Brazzolara, for plaintiffs. Horace Speed, for defendant.

GREEN, C. J. This is a bill in chancery, on the federal side of the court, for an injunction against the defendant to restrain him from doing certain acts against the persons and property of the complainants, alleged to be in violation of the rights of complainants, as citizens of the Cherokee Nation of Indians, and Cherokees by blood, and therefore unlawful, and for the doing of which complainants have no adequate remedy at law. The bill alleges

that complainants are citizens of the Cherokee Nation, and Cherokee Indians by blood. That in 1883 they established a farm and improvements on what is known as the "Cherokee Outlet," and within the jurisdiction of this court, and in accordance with the laws, usages, and customs of the Cherokee Nation; and that the said Cherokee outlet is in possession of and owned by the Cherokee Nation in fee simple. That complainants discovered on the farm a stone quarry, and, for the purpose of operating the same, obtained a license from said nation, in conformity with the laws and usages of the same, for a term of 10 years; and that such license has not expired. That complainants proceeded to open the quarry, and to mine and carry on the business of shipping stone. That they cleared the ground, made suitable openings to quarry and get out the stone, erected buildings and other conveniences for their laborers and employes, and built a switch or spur railroad to their quarry. That land was put in cultivation; derricks were purchased and placed in position, with necessary tools; and a full and complete plant was constructed to carry on the busi

ness of quarrying and shipping stone; and that complainants have expended and laid out about $6,000. That they have continuously been, and now are, conducting the business of quarrying and selling and shipping stone from said quarry, and delivering the same in the state of Kansas, as contracted for and ordered, from time to time. That they have built up and established a good business, and, in due course of business, have entered into numerous contracts for the sale and delivery of stone, which have not been executed and complied with. That complainants are upon the Cherokee outlet, and in possession of their premises, under and by virtue of their farming improvements, and by virtue of the said license from the authorities of the Cherokee Nation. That being citizens of the Cherokee Nation, to whom said outlet belongs, under the laws and constitution of the United States, and the treaties existing between the United States and the Cherokee Nation, they have a right to locate, be, and remain upon said outlet with their improvements and holdings. That defendant Goldman is first lieutenant of the fifth United States cavalry, a white man, having under him troop K of said fifth cavalry, and a detachment of 20 Indian scouts. That on the 28th day of February, 1891, the said defendant, with his command, came to said quarry, where complainants were at work, and, with force and arms, unlawfully and violently took possession of said quarry without authority of law. That defendant claimed to be acting under orders from the war department, directing that all intruders should be removed from said Cherokee outlet; and that he was ordered by said war department to destroy the track of said railroad, belonging to complainants, and all the buildings and improvements at and around said quarry, and to remove all tools, derricks, and other machinery in and about said quarry, over the line and into the state of Kansas; and that such removal would be made by force on or before 10 o'clock A. M. March 2, 1891; and that the said defendant will proceed to do so unless restrained from so doing by writ of injunction. That there is no right, power, or authority lawfully vested in, given, granted, or conferred upon, the said defendant, to remove the complainants, and to destroy the said premises. That, if the threatened acts of the defendant are carried out, the business of complainants, built up and established by years of industry and toil, will be ruined and destroyed, and complainants will be involved in a multiplicity of suits with their patrons, with whom they have contracts unfulfilled for the furnishing and delivering of stone. That the destruction of complainants' plant, buildings, and track will wholly destroy and lay waste their farming improvements and quarry, and cause complainants irreparable injury and damage, as said defendant and those acting under him are wholly insolvent,

and for that reason a judgment at law would be useless, and could not be collected. That complainants are not intruders upon said Cherokee outlet, within the scope and purview of the laws of the United States and the treaties made with the Cherokee Nation, or the laws governing trade and intercourse with the Indian tribes, but are lawfully thereon. To this bill of complaint, defendant Goldman appeared, and filed an answer, alleging, inter alia, as follows: That he does not know, and does not believe, that complainants are citizens of the Cherokee Nation, and Cherokees by blood. He does not admit that complainants established or located improvements on what is known as the "Cherokee Outlet," as alleged in their bill of complaint. He denies that the Cherokee outlet is within the jurisdiction or possession of the Cherokee Nation, and denies that said outlet belongs to the Cherokee Nation, in fee simple, or otherwise. He does not know whether complainants discovered the stone quarry, and does not know whether they obtained license from the Cherokee Nation, as alleged in their bill of complaint, but demands proof. He denies any knowledge of the opening and developing of the quarry, and the making of the switch; and does not know by whom the track and other conveniences, tools and derricks, and the quarry plant were brought to or placed upon or about said quarry, or the cost or value of the same, but demands proof. That on the 28th day of February, 1891, he found at said quarry a large number of persons, claiming different rights and interests therein. among whom was the complainant Jordan, but not the complainant Bushyhead, or his alleged guardian. That some of these persons were then, and for some time had been, carrying on the business of quarrying stone at said quarry, and shipping stone from said quarry, and delivering stone in the state of Kansas, under contract therefor, and at such other places as the contracts provided. That such business was a considerable business, and, in the progress thereof, large quantities of stone had been taken from the quarry; and that very large quantities were intended to be taken from said quarry for general traffic; and that said quarry was and is within the Cherokee outlet. That among persons in and about said quarry were citizens of the United States; and that all of said persons were employed and engaged in working in and about said quarry, and were claiming some interest or right in the machinery or plant or quarry or the stone taken or intended to be taken therefrom. That under orders from the war department, dated December 31, 1890, and the proclamation of the president dated February 17, 1891, defendant was directed to proceed to the Cherokee outlet, with the troops and Indian scouts mentioned, and drive out all persons unlawfully in the Cherokee outlet, and all cattle and other

stock unlawfully therein. The said orders were properly issued by the war department, under the directions of the president of the United States, and directed to the proper officer by the president, and came to the defendant as an officer of the army of the United States, and to the troops and Indian scouts, who were then in the army of the United States, and under the immediate command of the defendant. That, in the execution of these orders, the defendant proceeded to the Cherokee outlet, with said troops and Indian scouts, and removed divers and sundry persons resident or being in said outlet; and, under said orders, proceeded to the said quarry, and there directed the persons in and about the said quarry, including the said Complainant Jordan, to remove from said quarry and from said Cherokee outlet, and to cease quarrying stone at said quarry; and that said direction and order by the defendant to the persons at said quarry was intended to cover any and all persons at said quarry, or claiming any interest therein. The defendant is informed and believes that said Cherokee outlet did not and does not belong to the Cherokee Nation, or the Cherokee people in fee simple or otherwise; and that the complainants have no right, as against the United States, to operate a stone quarry in said outlet, in the manner stated in said bill of complaint or otherwise, under license issued by said Cherokee Nation. That the complainants have no right, except by consent of the United States, to open and develop a quarry of stone in said outlet, or to remove stone from said outlet. That complainants have no right to locate or put improvements on said outlet, and have no right to employ white men or other persons, citizens of the United States, or aliens, to go in or upon said outlet, and quarry stone therein for transportation or use elsewhere. That complainants are intruders upon said outlet, except, possibly, as they may use the same for passing over, as provided by the treaties of 1828 and 1833. Complainants filed a general replication to the answer of the defendant, and, on the hearing of the application for a temporary injunction, submitted affidavits, supporting substantially the facts stated in the bill of complaint; and the cause has been argued and submitted for decision as if upon issue and full proof.

As there is no contention in regard to the facts of this case, the important question which lies at the very threshold of the inquiry is, what title or interest has the Cherokee Nation to or in the Cherokee outet? And, in determining this question, It is not necessary to review the history of the Cherokee Indians, and the numerous treaties made by the United States with the Cherokee Nation prior to the treaty of the 6th of May, 1828. By the treaty of the 6th of May, 1828, it is recited in the preamble as follows: "Whereas, it being the anxious desire of the government of the United States to se

cure to the Cherokee Nation of Indians, as well those now living within the limits of the territory of Arkansas as those of their friends and brothers who reside in states east of the Mississippi, and who may wish to join their brothers of the west, a permanent home, and which shall, under the most solemn guaranty of the United States, be and remain theirs forever, a home that shall never, in all future time, be embarrassed by having extended around it the lines, or placed over it the jurisdiction of a territory or state, nor be pressed upon by the extension, in any way, of any of the limits of any existing territory or state; and whereas, the present location of the Cherokees in Arkansas, being unfavorable to their present repose, and tending, as the past demonstrates, to their future degradation and misery; and the Cherokees being anxious to avoid such consequences, and yet not questioning their rights to their lands in Arkausas, as secured to them by treaty, and resting also upon the pledges given them by the president of the United States, and the secretary of war, of March, 1818. and 8th of October, 1821, in regard to the outlet to the west, and as may be seen on referring to the records of the war department, still being anxious to secure a permanent home, and to free themselves and their posterity from an embarrassing connection with the territory of Arkansas, and guard themselves from such connections in future." It appears from this preamble that it was the anxious desire of the government of the United States, as well as the Cherokees, to secure to the Cherokees a permanent home, which should be outside the limits of any state or territory, and, with that permanent home, to secure to them an outlet to the west, and to that end the treaty provided as follows: "Art. 2. The United States agree to possess the Cherokees, and to guaranty it to them forever, and that guaranty is hereby solemnly pledged, of seven millions acres of land, to be bounded as follows, viz.: Commencing at that point on Arkansas river, where the eastern Choctaw boundary line strikes said river, and running thence with the western line of Arkansas, as defined in the foregoing article, to the southwest corner of Missouri, and thence with the western boundary line of Missouri till it crosses the waters of Neosho, generally called Grand river; thence due west to a point from which a due south course will strike the present northwest corner of Arkansas territory; thence continuing due south, on and with the present western boundary line of the territory to the main branch of Arkansas river; thence down said river to its junction with the Canadian river; and thence up and between the said rivers, Arkansas and Canadian, to a point at which a line running north and south, from river to river, will

give the aforesaid seven millions of acres. In addition to the seven millions of acres thus provided for and bounded, the United States further guaranty to the Cherokee Nation a perpetual outlet west, and a free and unmolested use of all the country lying | west of the western boundary of the abovedescribed limits, and as far west as the sovereignty of the United States and their right of soil extend." After the making of this treaty with the Cherokee Nation, it was discovered that the boundaries of the seven millions of acres, as defined by the treaty, included lands that had been ceded to the Creek Nation of Indians in 1826, by treaty with the United States; and by the first article of the treaty of the 14th day of February, 1833, the boundaries of the seven millions of acres are corrected, and the same provision is made for a perpetual outlet west as was made by the second article of the treaty of 1828. Said article provides as follows: "Article 1. The United States agree to possess the Cherokees and to guaranty it to them forever, and that guaranty is hereby pledged, of seven millions of acres of land, to be bounded as follows, viz.: Beginning at a point on the old western territorial line of Arkansas territory, being twenty-five miles north from the point where the territorial line crosses the Arkansas river; thence running from said north point south, on the said territorial line, to the place where said territorial line crosses the Verdigris river; thence down said Verdigris river to the Arkansas river; thence down said Arkansas to a point where a stone is placed opposite to the east or lower bank of Grand river at its junction with the Arkansas; thence running south forty-four degrees west one mile; thence in a straight line to a point four miles northerly from the mouth of the North Fork of the Canadian, thence along the said four-mile line to the Canadian; thence down the Canadian to the Arkansas; thence down the Arkansas to that point on the Arkansas where the eastern Choctaw boundary strikes said river; and running thence with the western line of Arkansas territory, as fined, to the southwest corner of Missouri; thence along the western Missouri line to the land assigned to the Senecas; thence on the south line of the Senecas to Grand river, thence up said Grand river as far as the south line of the Osage reservation, extended, if necessary; thence up and between said South Osage line, extended west if necessary; and a line drawn due west from the point of beginning, to a certain distance west, at which a line running north and south from said Osage line to said due west line will make seven millions of acres within the whole described boundaries. In addition to the seven millions of acres of land, thus provided for, and bounded, the United

now de

States further guaranty to the Cherokee Nation a perpetual outlet west and a free and unmolested use of all the country lying west of the western boundary of saiu seven millions of acres as far west as the sovereignty of the United States and their right of soil extend: provided, however, that if the saline, or salt plain, on the great western prairies shall fall within said limits prescribed for said outlet, the right is reserved to the United States to permit other tribes of red men to get salt on said plain in common with the Cherokees; and letters patent shall be issued by the United States as soon as practicable for the land hereby guarantied."

On the 29th day of December, 1835, at New Echota, in the state of Georgia, and for the purpose of uniting the Cherokees east and west of the Mississippi, a new treaty was made between the United States and the Cherokee Nation, the second and third articles of which provide as follows: "Art. 2. Whereas, by the treaty of May 6, 1828, and the supplementary treaty thereto of February 14, 1833, with the Cherokees west of the Mississippi, the United States guarantied and secured to be conveyed by patent, to the Cherokee Nation of Indians, the following tract of country: Beginning at a point on the old western territorial line of Arkansas territory, being twenty-five miles north from the point where the territorial line crosses the Arkansas river; thence running from said north point south on the said territorial line where the said territorial line crosses Verdigris river; thence down said Verdigris river to the Arkansas river; thence down said Arkansas to a point where a stone is placed opposite the east or lower bank of Grand river at its junction with the Arkansas; thence running south, forty-four degrees west, one mile; thence, in a straight line, to a point four miles northerly from the mouth of the North Fork of the Canadian; thence along said fourmile line to the Canadian; thence down the Canadian to the Arkansas; thence down the Arkansas to that point on the Arkansas where the eastern Choctaw boundary strikes said river, and running thence with the western line of Arkansas territory, as now defined, to the southwest corner of Missouri; thence along the western Missouri line to the land assigned the Senecas; thence on the south line of the Senecas to Grand river; thence up said Grand river as far as the south line of the Osage reservation, extended if necessary; thence up and between said south Osage line, extended west if necessary, and a line drawn due west at the point of beginning to a certain distance west, from which a line running north and south from said Osage line to said due west line will make seven millions of acres within the whole described boundaries. In addition to the seven millions of acres of land thus pro