vided 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 right of soil extend: provided, however, that if the saline or salt plain on the western prairie 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; and whereas it is apprehended by the Cherokees that in the above cession there is not contained a sufficient quantity of land for the accommodation of the whole nation on their removal west of the Mississippi, the United States in consideration of the sum of five hundred thousand dollars therefor, hereby covenant and agree to convey to the said Indians and their descendants, by patent in fee simple, the following additional tract of land situated between the west line of the state of Missouri and the Osage reservation, beginning at the southeast corner of the same, and runs north along the east line of the Osage lands fifty miles to the northeast corner thereof; and thence east to the west line of the state of Missouri; thence with said line south fifty miles; thence west to the place of beginning; estimated to contain eight hundred thousand acres of land; but it is expressly understood that if any of the lands assigned the Quapaws shall fall within the aforesaid bounds the same shall be reserved and excepted out of the lands above granted, and a pro rata reduction shall be made in the price to be allowed to the United States for the same by the Cherokees. Art. 3. The United States also agree that the lands above, ceded by the treaty of Feb. 14, 1833, including the outlet, and those ceded by this treaty, shall all be included in one patent executed to the Cherokee Nation of Indians by the president of the United States according to the provisions of the act of May 28, 1830. It is, however, agreed that the military reservation at Fort Gibson shall be held by the United States. But should the United States abandon the post and have no further use for the same it shall revert to the Cherokee Nation. The United States shall always have the right to make and establish such posts and military forts in any part of the Cherokee country as they may deem proper for the interest and protection of the same, and the free use of as much land, timber, fuel, and materials of all kinds for the construction and support of same, as may be necessary; provided, that if the private rights of individuals are interfered with, a just compensation therefor shall be made."

The act of congress of May 28, 1830, re

ferred to in the treaty of 1835, by the first and second sections of the act, authorized the president of the United States to exchange certain lands west of the Mississippi river with any tribe or nation of Indians residing within the limits of any of the states or territories, and with which the United States had existing treaties, for the whole or any portion of the territory claimed or occupied by such Indians; and the third section of the act was in these words: "And be it further enacted that, in the making of any such exchange or exchanges, it shall and may be lawful for the president solemnly to assure the tribe or nation with which the exchange is made, that the United States will forever secure and guaranty to them and their heirs or successors, the country so exchanged with them, and if they prefer it, that the United States will cause a patent or grant to be made and executed to them for the same; provided always that such lands shall revert to the United States if the Indians become extinct or abandon the same." On the 31st day of December, 1838, the president of the United States, in pursuance of the provisions of the treaties of 1828, 1833, and 1835 with the Cherokee Nation, made and executed to said nation a patent, in which the provisions of said treatles with reference to the 7,000,000 acres for a permanent home, and the 800,000 acres additional, and the Cherokee outlet, are set out, and with the following granting and habendum clauses: "Therefore, in execution of the agreements and stipulations contained in the said several treaties, the United States have given and granted, and by these presents do give and grant, unto the said Cherokee Nation, the two tracts of land so surveyed and herein before described, containing in the whole fourteen millions three hundred and twenty-four thousand one hundred and thirty-five acres, and fourteen hundredths of an acre, to have and to hold the same, together with all the rights, privileges, and appurtenances thereunto belonging, to the said Cherokee Nation, forever; subject, however, to the right of the United States to permit other tribes of red men to get salt on the salt plain on the western prairie referred to in the second article of the treaty of the twenty-ninth of December, one thousand eight hundred and thirty-five, which salt plain has been ascertained to be within the limits prescribed for the outlet agreed to be granted by said article; and subject, also, to all the other rights reserved to the United States in and by the articles herein before recited, to the extent and in the manner in which the said rights are so reserved; and subject, also, to the condition provided by the act of congress of the twenty-eighth of May, one thousand eight hundred and thirty, referred to in the above-recited third artile, and which condition is that the lands hereby granted shall revert to the United States if

the said Cherokee Nation becomes extinct or abandons the same."

Now, the question is, what kind of title do these several treaties and the act of 1830 and the patent of 1838 give the Cherokee Nation to the lands described in the treaties and patent, including the Cherokee outlet? And, in determining this question, it matters not whether the title of the Cherokee Nation shall be derived from the several treaties, or from the patent issued in pursuance of such treaties, so far as the title to the Cherokee outlet is concerned. The condition in the patent, however, that the lands shall revert to the United States if the Cherokee Nation shall abandon the same, is not found in the treaties; and serious doubts have been expressed as to the validity of the condition in the patent, for the reason that it was not authorized by the treaties under which it was issued. Holden v. Joy, 17 Wall. 211. The title of the Cherokee Nation to the 7,000,000 acres of land, known as their permanent home, and the 800,000 acres additional, has already been passed upon by the courts, and would seem to be no longer in question. In fact, as to the 800,000 acres, that tract of land was purchased by the Cherokee Nation for the sum of $500,000, and by the treaty of 1835 the United States covenanted and agreed to convey the same by patent, in fee simple, and the same was conveyed by the patent of 1838; and, as to the 7,000,000 acres, the supreme court of the United States, in the case of Cherokee Nation v. Southern Kansas Ry. Co., 135 U. S. 656, 10 Sup. Ct. Rep. 965, concedes that the Cherokee Nation holds the same in fee simple. The court there says: "The fact that the Cherokee Nation holds these lands in fee simple, under patents from the United States, is of no consequence in the present discussion." Again, in the case of Holden v. Joy, supra, involving the title of the Cherokee Nation to the 800,000 acres, it is said that the condition in the patent that the lands shall revert to the United States if the Cherokee Nation shall abandon the same, if a valid condition, reduces the estate to less than a fee simple, and makes it an estate upon a condition subsequent. The court says: "Strong doubts are entertained whether that condition in the patent is valid, as it was not authorized by the treaty under which it was issued. By the treaty the United States covenanted and agreed to convey the lands in fee-simple title, and it may well be held that, if that condition reduces the estate conveyed to less than a fee, it is void; but it is not necessary to decide that point, as it is clear that if it is valid it is a condition subsequent, which no one but the grantor in this case can set up under any circumstances." In the case of U. S. v. Reese, 5 Dill. 405, an information was filed against the defendant for unlawfully cutting timber

on lands situated in the Cherokee Nation, being a part of the 7,000,000 acres described in the several treaties and in the patent of 1838; and it became necessary for the court to determine in the case what estate the Cherokee Nation had in, and by what title they held, these lands. The question was raised upon a demurrer to the information, and Judge Parker, in passing upon the demurrer, said: "But suppose the condition contained in the patent is void; let us see what effect that has upon the title. The condition is that the lands revert to the United States if the said Cherokees become extinct or abandon the same. Now, the first of these conditions is one which would be silently ingrafted on the grant, independent of any express words. When there is a grant, and the grantee and his heirs become extinct, the land escheats to the state, whether the grantee be an individual or a body of individuals. In an ordinary patent, absolute from the government, the implied right of escheat to the sovereign lies be hind the patent. In this case it is expressed. Therefore, that expressed condition does not take away the character of a fee simple title. But the other one, against abandonment, does. This leaves the title less than a fee. But what character does it have? Blackstone (book 2, c. 7, p. 100) says: 'A base or qualified fee is such a one as hath a qualification subjoined thereto, and which must be determined wheneve the qualification annexed to it is at an end. As in the case of a grant to A. and his heirs, tenant of the manor of Dale; in this instance, whenever the heirs of A. cease to be tenants of the manor the grant is entirely defeated. This estate is a fee, because by possibility it may endure forever in a man and his heirs. Yet, as that duration depends upon the concurrence of collateral circumstances, which qualify and debase the purity of the donation, it is, therefore, a qualified or base fee.' Chancellor Kent (volume 4, p. 10, of his Commentaries) says: 'A qualified, base, or determinable fee is an interest which may continue forever, but the estate is liable to be determined without the aid of a conveyance, by some act or event circumscribing its continuance or extent. It is the uncertainty of the event, and the possibility that the fee may last forever, that renders the estate a fee, and not merely a freehold.'” And the court concludes: "This Indian title being a base, qualified, or determinable fee, with only the possibility of a reversion, and not the right of reversion, in the United States, all the estate is in the Cherokee Nation of Indians." What was said in these cases, however, was said with reference to the estate of the Cherokee Nation in the permanent home lands, being the 7,000,000 acres and the 800,000 acres, and did not refer to the estate of the Cherokee Nation in

*

the Cherokee outlet; and it is noticeable, too, that no two of the cases agree as to the estate of the Cherokee Nation in their home lands. In the first case, it is called a fee simple; in the second, an estate in fee upon a condition subsequent; and, in the third, a base, qualified, or determinable fee. But, by striking out of the patent the condition that the lands shall revert to the United States if the Cherokee Nation shall abandon the same, all the cases can be reconciled, and give to the Cherokee Nation a fee-simple estate.

How, then, does the estate of the Cherokee Nation in the Cherokee outlet differ, if at all, from their estate in the home lands? They are both held by one and the same title, that is, the several treaties and the patent of 1838; but that there is a difference, in contemplation of law, is manifest to the legal mind from a consideration of the several treaties in pursuance of which the patent was issued, and which are referred to in the patent. As to the Cherokee outlet, the several treaties provide: "In addition to the seven million of 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." What the United States have here guarantied to the Cherokee Nation is a perpetual outlet west, and that perpetual outlet is ceded by the treaties, and granted by the patent of 1838. The estate of the Cherokee Nation in the Cherokee outlet differs from their estate in the home lands, in this: that there is no qualification of the use of the home lands, and they may be used for any purpose consistent with a fee-simple ownership; while the estate in the Cherokee outlet is qualified as to the use of the lands themselves, and the law annexes a condition that they shall be used for the purpose of an outlet, and for no other.

It is contended on behalf of the complainants, and alleged in their bill of complaint, that the Cherokee Nation is the owner of the Cherokee outlet in fee simple; and, in behalf of the defendant, that their only interest is a mere easement, and that the fee of the lands is in the United States. It is clear, however, upon principle and authority, that neither one of these positions is tenable, and that the estate of the Cherokee Nation is a base, qualified, or determinable fee, and that, too, whether we reject or retain the condition in the patent that the lands shall revert to the United States if the Cherokee Nation shall abandon the same. In Coke upon Littleton it is said: "Of fee simple it is commonly holden that there be three kinds, viz. fee simple absolute, fee simple conditional, and fee simple qualified, or a base fee." And Blackstone, in defining a base or qualified

fee, says: "A base or qualified fee is such a one as hath a qualification subjoined thereto, and which must be determined whenever the qualification annexed to it is at an end." 2 Comm. p. 109. In the case of U. S. v. Rogers, 23 Fed. Rep. 663, the court had occasion to examine and pass upon the question under consideration, and there said: "If this is an offense against the laws of the United States, it was committed in that part of the Cherokee country known as the 'Cherokee Outlet.' This country, together with the other part of its lands, was granted to the Cherokee Nation, as a nation, by the treaties between the nation and the United States made May 6, 1828, (Indian Treaties, 56, 57,) February 14, 1833, (Id. 61,) and December 29, 1835, (Id. 65.) By these treaties the Cherokee Nation was granted a perpetual outlet west, and a free and unmolested use of all the country lying west of the western boundary line of the seven million acres of land granted in and by the same treaties. * * By looking at the title of the Cherokees to their lands, we find that they hold them all by substantially the same kind of title. This court held in the case of U. S. v. Reese, 5 Dill. 405, that the Cherokees hold their land by title different from the Indian title by occupancy; they derived it by grant from the United States. It is a base, qualified, or determinable fee, without the right of reversion, but only the possibility of reversion, in the United States. This, in effect, puts all the estate in the Cherokee Nation." See, also, In re Wolf, 27 Fed. Rep. 615. The qualification annexed to a base, qualified, or determinable fee may be either one of two kinds,-it may be a qualification which attaches itself to the use of the land, so that the estate is held to be granted for that use and purpose only, and on the cessation of the use the estate expires; or it may be one which is concerned with the happening of a more strictly collateral event, in that case leaving the use of the estate free for any purpose, but limiting its existence only by the event contemplated, or to the continuance of the state of affairs contemplated at the time of the grant. In the case of State v. Brown, 27 N. J. Law, 13, land was conveyed to the Morris Canal & Banking Company, for the purposes of a canal, and as long as used for a canal; and it was held that the estate conveyed was a base, qualified, or determinable fee, and liable to be defeated whenever they ceased to use the land for the purpose specified in the grant; and, in passing upon the question, the court said: "By the deed to the canal company, the land is conveyed to them, their successors and assigns, together with all and singular the waters, profits, privileges, and advantages, with the appurtenances to the same belonging, or in any wise appertaining; also all the estate, rights, title, interest, claim, and demand whatsoever of the party of the first part of, in, and to the same, and to

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 appurtenances 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 each 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 1838 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 conIcluded 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