"The intention of the owner in making the plat is to be ascertained from all the marks and lines appearing thereon, and, if possible, such an interpretation should be followed as will give effect to all the lines and statement."

Milliken from obstructing a tract of land The defendant, for reversal, in this court reserved or dedicated for a street. The pe- contends that the plat is unambiguous and tition alleges the plaintiff is the owner of the plat discloses the land is reserved, and certain lots in Palmer Highland addition to by giving the full force and effect to the word the city of Pawhuska, bounded on the east "reserve" the same was not dedicated as a by Bigheart avenue and on the north by street. The plaintiff contends that the plat North Boundary Reserve No. 2, which has is plain and unambiguous, and the plat in been used and treated as a street, and was so far as it related to the reserve adjoining so marked and designated on the plat. It the plaintiff's land, as it connects with Avewas alleged the defendants were attempting nue A and Avenue B, the same is a dedicato close said street and were threatening to tion of the same as a street. erect a building on said, reserve directly [1] In construing plats, the rule is annorth of and adjoining the premises of plain-nounced in 9 Am, & Eng. Enc. of Law, 60, as tiff. The defendant filed an answer consist- follows: ing of general denial, and alleged plaintiff was estopped to deny the title of defendant, and estopped from claiming that the strip of ground constituted a street. The plaintiff introduced in evidence the plat, which discloses Palmer Highland addition was a tract of land approximately one-half mile in length from east to west, and four blocks wide from north to south, and divided into 44 blocks, with streets running east and west and avenues running north and south. The plat disclosed that across the north side of the addition is a strip of ground extending from the west line of the addition east to Grand avenue 30 feet wide. A line is drawn around this strip, except at A avenue and B avenue, where those streets connect with the reserve, where there is a break in the lines and nothing to disconnect these two avenues from the reserve, This strip is marked "North Boundary Reserve No. 2" From Grand avenue east for two blocks is a similar strip of land 30 feet wide, but there is no line that separates the strip from Leahy avenue, but disclosed that Leahy avenue connects with Boundary Reserve No. 1.

The plaintiff owns lots 1 and 2 in block 6 according to the plat. These lots face on A avenue, while the pleading state they face

on B avenue. It would be immaterial whether they face upon A avenue or B avenue, as there is no disconnected line at the end of either avenue. According to the plat, a person could drive up A avenue to the reserve and west on the reserve to B avenue and then back on B avenue. The defendants offered evidence that it was not intended, by the person filing the plat, of Boundary Reserve No. 2, to dedicate the reserve to the public as a street, and also evidence that the reserve was not suitable for a street. Upon the question of what was the intention of the persons platting the street, an objection was interposed to that evidence, for the reason it was incompetent, irrelevant, and immaterial, and tended to vary the terms of the plat. The court stated he thought the objection was good, but permitted the evidence to be introduced. The court rendered judgment in favor of plaintiff and against the defendant. From said judgment the defendants have appealed.

[2] In the case of Ft. Smith & Van Buren Bridge Dist. v. Scott, 111 Ark. 449, 163 S. W. 1137, it is stated:

"The question whether an owner intended to dedicate his land is one of fact, but, in determining the question, the intention to which the court looks is not one hidden in the mind of the owner, but one manifested by his acts."

[3] In the case of Godfrey v. City of Alton, 12 Ill. 29, 52 Am. Dec. 476, it is stated:

"A dedication may be made by a survey and plat alone, without any declaration, either oral or on the plat, when it is evident from the face of the plat that it was the intention of the proprietor to set apart certain grounds for the use of the public,"

In the case of Revard v. Hunt, 29 Okl. 835, 119 Pac. 589, this court stated as fol

lows:

"When lots are sold with reference to a recorded plat, a dedication of the streets and alleys as laid out in such plat is deemed perfect without any affirmative official or other action on the part of the municipality or public."

[4] In the case of City of Shreveport v. Drouin, 41 La. Ann. 867, 6 South. 656, the Supreme Court of Louisiana said:

"When the evidence produced to show the dedication is a map or plat, and the statements thereon are ambiguous or doubtful as to the extent of the dedication intended, recourse may be had to the contemporaneous and subsequent acts of the parties to show their intention in, and the construction put by them on, the dedication."

See, also, City of Eugene v. Lowell, 72 Or. 237, 143 Pac. 903; Gilbert v. Emerson, 60 Minn. 62, 61 N. W. 821; City of Buffalo v. Erie Ry. Co., 83 Misc. 144, 144 N. Y. Supp. 578.

[5] The defendants in the court below by their pleadings and evidence presented the case upon the theory that the plat was ambiguous, and offered evidence for the purpose of aiding the court in construing the plat.

(227 P.)

to show only occasional cohabitation, finding that marriage relation did not exist not disturbed.

Where the evidence introduced by the plain

tiff in support of his claim that the relation of husband and wife existed between plaintiff and the deceased only tends to show that the plaintiff occasionally cohabited with the deceased during her lifetime, held, the finding of the trial court that the marriage relation did not exist will not be disturbed. For on such an issue the ultimate conclusion to be reached is not whether the decedent lived and cohabited with the plaintiff but whether there was a contract of marriage.

In our judgment the plat is ambiguous; the, 3. Marriage 50(5)—Where evidence tended designation of the strip as "Boundary Reservé No. 2" and the break in the line extending around the reserve at A and B avenues makes the construction of the plat not clear and free from doubt. If the strip of land had been disconnected from A avenue to B avenue by a line, and the strip of land marked "Reserve No. 2" had been totally surrounded by a line, then it might be said it was not ambiguous, unless it could be said it was reserved for a street when the property to the north was platted; but when the court must give force and effect to the line and statements both, and they are inconsistent, then the same becomes ambiguous. It is evident from the record that the trial court held that the plat was unambiguous and held the reserve had been dedicated to public as part of the street, and enjoined the defendants from interfering therewith. The question of whether this particular tract of land was dedicated as a public street is a question of fact to be determined from the plat, and the court should take into consideration the contemporaneous and subsequent acts of the parties in platting said land and the representations made by them, and the use said strip has been put to might be material.

For the reasons stated, the judgment of the trial court is reversed and remanded, with directions to grant the defendant in error a new trial.

14-Kindred of

4. Descent and distribution
half blood excluded from inheritance coming
to deceased by descent, devise, or gift of an-
cestors.

Section 8427, Revised Laws 1910 (section 11310, Comp. Stat. 1921), provides: "Kindred of the half-blood inherit equally with those of the whole blood in the same degree, unless the inheritance come to the intestate by descent, devise or gift of some one of his ancestors, in which case all those who are not of the blood of such ancestors must be excluded from such inheritance."

as to inheritance by those of the half blood Held, said section qualifies the general rule

found in second subdivision of section 8418, Revised Laws 1910 (section 11301, Comp. Stat. 1921), and the half blood is excluded from an inheritance that came to the deceased by descent, devise or gift of some one of his ancestors, and that the rule announced in Kelly v. McGuire, 15 Ark. 586, be followed.

HARRISON, WARREN, 5. Statutes 226-Exception to rule that

NICHOLSON, GORDON, JJ., concur.

THOMPSON et al. v. SMITH et al.

(No. 13814.)

(Supreme Court of Oklahoma. Dec. 11, 1923. Rehearing Denied May 13, 1924.)

(Syllabus by the Court.)

I. Appeal and error 1035-Jury 14 (2)Issues of fact in action for specific real property and for accounting triable by jury; refusal of jury harmless, when issues of fact determined in favor of demanding party.

In an action to recover specific real property and for accounting for rents and profits, issues of fact arising from the pleadings shall be tried by a jury, unless a jury is waived, but the error of the court in refusing a jury trial is harmless, when the trial court determines the issues of fact in favor of the party demanding a jury.

2. Appeal and error 1010(1)-Findings of fact reasonably supported by evidence not disturbed.

The rule is well established in this jurisdiction that, if the findings of fact made by the trial court are reasonably supported by the evidence, the judgment entered thereon will not be disturbed on appeal in this court.

construction placed on adopted foreign statute, by courts of foreign state presumed adopted stated.

While it is the general rule that the Legislature of one state, in adopting a statute of another state, is presumed to have adopted the construction placed on such statute by the highest court of such other state prior to its adoption, yet this rule has its exceptions: First, where the construction is contrary to the Constitution or the well-defined legislative policy of the adopting state; second, where the adopted statute exists in many other states, and such construction is contrary to the decided weight of authority in such other states having substantially the same statute. 6. Indians

15(1)-County court proper tribunal for approval of conveyance of restricted heirs.

According to the provisions found in the proviso to section 9 of the Act of Congress of tion of the settlement of the estate of the origiMay 27, 1908, the county court having jurisdicnal deceased allottee is the proper court acting as a designated federal agency to approve the conveyance of restricted heirs, whether such heirs inherited immediately or indirectly such lands.

Cochran, J., dissenting.

Appeal from District Court, Creek County; Lucien B. Wright, Judge.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

The assignment of errors challenges the The trial court made the following findings correctness of the trial court's judgment, and of fact and conclusions of law: presents the questions as above set out here for review.

Before disposing of the questions as above set out, counsel for the plaintiffs in his brief contends that the case was one of purely

"The court further finds that the allottee, equitable cognizance, and that the rule to be

(227 P.)

applied in weighing the testimony is as to, was a marriage the ultimate conclusion to be, whether the findings and judgment of the court are clearly against the weight of the evidence. We are of the opinion that the case was not one of purely equitable cognizance, but was primarily an action in ejectment to recover possession of specific real property and as an incident to the relief to recover the rents and profits arising from the land during the time that the defendants had been in what the plaintiffs alleged to be the unlawful possession thereof.

tended in force throughout the entire state under the Enabling Act and the adoption of the Constitution of the state. Section 8427, supra, is also identical in material parts to section 2533 of Mansfield's Digest of the Laws of Arkansas, which was in force in the Indian Territory for 17 years prior to the admission of Oklahoma into the Union. The following cases support the rule as contended by the defendants that, according to the provisions of 8427, supra, the plaintiff James Thompson, not being of the blood of Manie Steel, the deceased ancestor, from whom Minnie Thompson inherited the allotment, is excluded from inheriting any part of the allotment. In re Kelly's Heirs v. McGuire, 15 Ark. 592; Amy v. Amy, 12 Utah, 278, 42 Pac. 1121; Delaplaine v. Jones, 8 N. J. Law, 340; Stallworth v. Stallworth, 29 Ala. 76; Cutter v. Waddingham, 22 Mo. 206; Beebee v. Griffing, 14 N., Y, 235; Osborne v. Widenhouse, 56 N. C. 238; Prescott v. Carr, 29 N. H. 453, 61 Am. Dec. 652.

section 8418, subd. 2, Revised Laws 1910, those of the one-half blood inherit equally with those of the whole blood, for the reason, where the statute refers to brothers and sis. ters of the decedent, the same is held to include one-half brothers and one-half sisters in determining their right to inherit. Stockton v. Frazier, 81 Ohio St. 227, 90 N. E. 168, 26 L. R. A. (N. S.) 603. Therefore it is plain that, instead of section 8427 being an enabling statute, it must be construed to be a qualification of the general rule in the preceding section 8418, and where the one-half blood would inherit equally with those of the whole blood, as provided for in the general rule found in second subdivision of section. 8418, where such an estate came to the deceased from one of his or her deceased ancestors by inheritance, devise, or gift, section 8427 qualifies and restricts the right of those of the one-half blood to inherit such estate, and excludes them, if they are not of the blood of the ancestor from whom the last In the case of In re Smith's Estate, supra, decedent received the estate by inheritance, the court held:

"By Civ. Code, § 1394, 'kindred of the half blood inherit equally with those of the whole blood in the same degree, unless the inheritance comes to the intestate by descent, devise, or gift of some one of his ancestors, in which case all those who are not of the blood of such ancestor must be excluded from such inheritance.' Held, that in the excepted case thereunder the kindred of the half blood, were not absolutely excluded from inheriting, but merely postponed to those of the whole blood, and that the provision had no application between kindred in different degrees."

The effect of the holding in this case and of the other cases supporting this rule is that the applicable provisions of section 8427, supra, have no application to the devolution of an estate of a deceased person where the estate came to such decedent by inheritance, devise, descent, or gift of some one of his ancestors, except where there are those of the full blood and the one-half blood; that is to say, where the decedent leaves one-half brothers or sisters but no full brothers or sisters, the statute does not become operative.

We believe that the rule followed in the California cases is against the weight of authority and places an artificial construction upon the plain language of section 8427 of the statute, supra, and fails to recognize the legislative intent deducible from the language used in the statute.

In the case of In re Smith's Estate, supra, the conclusion reached was upon the theory that such statutes as 8427 are regarded as enabling laws conferring upon kindred of the one-half blood a right of inheritance not theretofore enjoyed equally with those of the whole blood. This was the common-law rule. 1 Cooley's Blackstone (4th Ed.) p. 614. We are unable to agree with this reasoning to support the conclusion reached. Under

devise, or gift.

It is important to observe in the construction of section 8427 that, according to the second subdivision of section 8418 providing:

"If the decedent leave no issue, the estate goes one half to the surviving husband or wife, father or mother, or, if he leave both father and and the remaining one half to the decedent's mother, to them in equal shares; but if there be no father or mother, then said remaining one half goes, in equal shares, to the brothers, and sisters of the decedent, and to the children of any deceased brother or sister, by right of representation. If decedent leave no issue, nor father or mother, or if he leave both father and husband nor wife, the estate must go to the mother, to them in equal shares: Provided, that in all cases where the property is acquired by the joint industry of husband and wife during coverture, and there is no issue, the whole estate shall go to the survivor, at whose death, if any of the said property remain, one half of such property shall go to the heirs of the husband and one half to the heirs of the wife, according to the right of representation,"

this provision of the statute provides the general rule for inheritance by brothers and sisters, and the phrase "brother and sisters," as used in this provision of the statute includes one-half brothers and one-half sisters. Watkins v. Blount, 43 Tex. Civ. App. 460, 94 S. W. 1116; Stockton v. Frazier, 81 Ohio St. 227, 90 N. E. 168, 26 L. R. A. (N. S.) 603, It therefore must be clear that section 8427 was not an enabling statute, but is a qualification of the general rule as found in section 8418.

This court, in the case of Edmond McKay v. Mattie Roe, a minor (No. 11851) 96 Okl. 87, 219 Pac. 921, in which an opinion was filed September 25, 1923, held:

"A careful consideration of the Oklahoma statutes of descent and distribution discloses the statutes are founded on natural affection of