Whaley v. Choctaw Railway Co.

46 P. 506, 4 Okla. 470

Opinion

The opinion of the court was delivered by

Scott, J.:

This is a condemnation proceeding, but is identical with the case of David A. Churchill v. The Choctaw Coal and Railway Co., heretofore decided by this court. The reasoning in that case is applicable here and the determination should be the same. The decision in the case mentioned is based upon that of United States ex rel. W. S. Search et al., 3 Okla. 404, and the accepted precedents of the country.

Whaley, the plaintiff in error, is a homestead entry-man, but made the same subsequent to the act of congress of February 18, 1888, granting a right of way to the Choctaw Coal and Eailway company, and consequently subject to the said right of way, though the line of road was not definitely located until after the entry, and the settler cannot recover damages occasioned by the building of said railway under said act.

The judgment of the court below will be affirmed.

Burford, J., who presided in the court below not sitting; all the other Justices concurring.