We have examined the agreed statement of facts upon which this case was tried, and also the briefs presented by the respective counsel, and have examined the record, especially those parts that were attached to the agreed statement of facts. The briefs narrow the question for us to decide down to two or three propositions. The first is that defendant in error contends that the condemnation proceedings were void for want of notice. To this proposition we cannot agree. Under the Act of Congress, approved February 28, 1902, commonly known as the Enid and Anadarko Act, the prerequisites to condemnation must be complied with. The railroad seeking to condemn land for right of way purposes must file a plat of the proposed right of way with the Secretary of the Interior, the Principal Chief of the Creek Nation, the United States Indian Agency. This all seems to have been done, but it is contended that that is not sufficient notice to the Creek Nation. We do not see what the Creek Nation has to do with this lawsuit. It seems that at the time these condemnation proceedings were filed, that this land in controversy had been sold as a part of the townsite of Henryetta to James J. Clarke and Missouri A. Davis, and that they were in possession of it and had due notice of the condemnation proceedings, and the railroad company settled with them for the damages. They held the legal title at that time, and if the Creek Nation had any interest in it, it was merely an equitable lien for the balance due on the lots. It appears that the Creek Nation, long after the condemnation proceedings were had and the railroad had been built and a mill and elevator had been built, and were operating when the Secretary of the interior canceled the purchase of Clarke and Davis, in, 1910, sold the land again to the plaintiff in this suit, Simpson. The person making the sale, let it be the Creek Nation, Secretary of the Interior, or anyone else, had notice that the lots had been condemned as a part of the right of way of the Missouri, Oklahoma Gulf Railway, and that they had built a railroad, station, switches and other buildings necessary for the operation of the road. They had leased or granted a permit to Ross to erect a mill and elevator on the right of way, and he had erected same and had sold the mill and elevator, together with his permit, with the consent of the railroad, to Colclazier, and they were operating the mill and elevator at the time Simpson got his deed. It is not shown that the Creek Nation ever asserted any right to this land after it was condemned, and it is not shown that Simpson asserted any right to it after he bought it until after the mill and elevator burned down, and then this suit was commenced. We do not think the Creek Nation was entitled to any notice, and if it was, the plan *Page 235 of the right of way that the railroad was seeking to condemn was sufficient notice to it. The Secretary of the Interior was exercising a supervisory control over the land of the Indians at that time, and the Secretary of the Interior had notice of the intended condemnation of these lots, and the Indian Agency for the Five Civilized Tribes, which is another branch of the Department of the Interior, also had notice, and the Principal Chief of the Tribes had notice. They all knew that the railroad had been built and the mill and elevator had been built on the right of way, and none of them questioned the title of the railroad for over ten years after Simpson's deed was made. It is clear to our minds that this deed to Simpson was made under a misapprehension of the facts. At that time, if the Secretary of the Interior had taken pains to inform himself, he would have found that these lots had been condemned as a right of way of the Missouri, Oklahoma Gulf Railway several years prior to the time he attempted to convey it to Simpson, the plaintiff. We think all the notice that was required was given to all the parties.
Another question is, Will ejectment lie against a railway company, which has entered into possession of land taken for right-of-way purposes and has constructed its line and engaged in the operation of same. This court in the very recent case of Peckham et al. v. Atchison, T. S. F. Ry. Co. et al.,88 Okla. 174, 212 P. 427, held, quoting the first paragraph of the syllabus:
"Where a public service corporation, vested with the power of eminent domain, enters into actual possession of land necessary for its corporate purposes, with or without the consent of the owner, and the owner remains inactive, stands by and permits such corporation to go on and spend large sums of money in constructing its railroad, or telegraph wires, or pipe lines, or mains, or plants, or other necessary fixtures, the owner is estopped from maintaining either trespass or ejectment, and will be regarded as having acquiesced therein, and is restricted to a suit for damages for the value of the land, on the theory that the public has acquired an interest in the appropriation. Under such circumstances an appropriation will be treated as equivalent to title by condemnation."
This case is very much in point, and we think decides the question of the right of plaintiff in this case to maintain an action in ejectment adversely to the condemnation. This case is so full of the citation of authorities from our own court, and from other courts that we think it settles that question, and we might close this opinion here, but there are some other questions raised in the brief that we think the parties are entitled to have passed upon.
It is the contention of the plaintiffs in error, defendants below, that defendant in error, plaintiff below, is attempting to have the condemnation proceedings declared void in a collateral attack on the judgment in the condemnation proceedings. The first question is, Whether this is a collateral attack. We do not think there can be any doubt about that question. A collateral attack on a judicial proceeding is an attack to void, defeat or evade it, or deny its force and effect in some incidental proceeding not provided by law for the express purpose of attacking it. Continental Gin Co. v. DeBord, 34 Okla. 66, 123 P. 159; Hathaway v. Hoffman,53 Okla. 72, 153 P. 184. So it will be seen that the attack on the condemnation proceedings is essentially a collateral attack. It will not suffice to show that there were errors or irregularities in the judgment of that court, such as might have been corrected on review by an appellate court or by timely proceedings instituted in the court rendering the same; but it is incumbent upon him to show that said court was without power or jurisdiction to render the judgment. The validity of the statute under which the proceedings were had, and the jurisdiction of the court to entertain those proceedings, not being questioned in order to attack the judgment of the court in this collateral proceeding, it must appear that the judgment itself is void upon its face. There is no such contention herein and no other contention that in our judgment brings the case within the rule that it can be collaterally attacked. It is contended by defendant in error, plaintiff below, that the lots in controversy were not condemned because pending the condemnation proceedings, the railroad made an amicable settlement with Davis and Clarke. We do not exactly get the force of this proposition. It is a matter of common knowledge that railroad companies, in procuring a right of way, always endeavor to make amicable settlements with the parties owning the land through which they desire to pass. The railroad company had a perfect right to make an amicable settlement with any or all of the parties through whose land they passed. The fact that condemnation proceedings were in progress at the time this amicable settlement was made did not in any way affect its validity. The referees in their report to the court mentioned the fact that in the Clarke and Davis matter, the railroad company had made an amicable settlement with the owners and exhibited *Page 236 the deed from Clarke and Davis. There was nothing secret about it. It was made a matter of public record, and the report of the referees has been notice to everybody since, and Mr. Simpson, the plaintiff below, had notice of it when he attempted to buy these lots from the Secretary of the Interior.
Another proposition urged by defendant in error is, that ejectment will lie for land occupied by a railroad company where the plaintiff has the legal title and the defendant is wrongfully in possession at the time of the institution of the action. There may be isolated cases where an ejectment will lie against the railroad company for land it is occupying, but we are of the opinion that this case does not come within that rule. Counsel for defendant in error realizes that the case of Peckham et al. v. Atchison, T. S. F. Ry. Co. et al.,88 Okla. 174, 212 P. 427, is against their contention because in that case the plaintiffs sought to recover possession of a strip of land located in the city of Blackwell, and the plaintiff in that case, as in this, deraigned his title from the United States Government by instruments attached to his petition. A demurrer was sustained to the petition. Counsel say with reference to this case, "with the very greatest respect for the opinion of this court, we submit that in our opinion the decision of the court in that case was unsound." We are satisfied with that opinion and think that the opinion is sound. The reasoning in the opinion and the authorities cited are very convincing to us, and we shall have to follow that opinion, notwithstanding learned counsel think it unsound. We are inclined to think that if the plaintiff below, or the Creek Nation, had any title, they are estopped by their long acquiescence to the occupancy by the railroad company and other defendants. This view is not in conflict with the case of Selsor-Badley v. Reed, 97 Okla. 204, 223 P. 651.
We do not understand that the defendants below rest their claim entirely on their deeds from Davis and Clarke. There was a condemnation proceeding in progress, and they were parties to it, and taking their deeds from them was just as effective as if the referees had assessed the value of the property and the railroad had paid it into court for their benefit. No such facts appear in the Selsor-Badley-Reed Case, supra. We do not think that the plaintiff. Simpson, acquired any title to these lots by virtue of his deed from the Secretary of the Interior and the Creek Nation. The land had already been condemned and it was not subject to sale at the time Simpson bought it, and Simpson is charged with the knowledge of that fact. The case of Kindred v. Union Pac. Ry. Co., 225 U.S. 582, is a case dealing with lands that formerly belonged to the Delaware Indians. Quoting from the last paragraph of the syllabus, the court said:
"Where a railroad company enters upon the land of another and constructs a railroad thereover, under a statute entitling it to do so on condition that compensation be made to the owner, and the latter permits the construction and operation of the railroad without compliance with that condition, a subsequent vendee of the owner takes the land subject to the burden of the right of way, and the right to exact payment therefor from the railroad company belongs to the owner at the time of entry and construction."
See, also, U.S. v. Denver Rio Grande Ry. Co., 150 U.S. 1. The conduct of Simpson after he got his so-called deed on November 1, 1910, is not such as to appeal to this court. He knew when he got the deed that the defendants were in possession and operating the railroad and the mill and elevator, and he makes no claim to the land for ten years. We think his conduct amounts to an estoppel. In the case of St. L. S. F. Ry. Co. et al. v. Mann, 79 Okla. 160, 192 P. 231, in the first paragraph of the syllabus the court said:
"Where a public service corporation, vested with the power of eminent domain, enters into actual possession of land necessary for its corporate purposes, with or without the consent of the owner, and the owner remains inactive, stands by, and permits such corporation to go on and spend large sums of money in constructing its railroad, or telegraph wires, or pipe lines, or mains, or plants, or other necessary fixtures, the owner is estopped from maintaining either trespass or ejectment, and will be regarded as having acquiesced therein, and is restricted to a suit for damages for the value of the land, on the theory that the public has acquired an interest in the appropriation. Under such circumstances, an appropriation will be treated as equivalent to title by condemnation."
So that if Simpson has any cause of action, it is for damages for the value of land at the time the railroad took possession of it. We cannot understand just how the trial court arrived at the conclusion that Simpson, the plaintiff, was entitled to judgment for the rental value of the land during the time the defendants occupied it up to a certain date, and entered judgment for the damages against the estate of Colclazier and no judgment against the railroad company. The fact is that we cannot understand by what process of reasoning the trial *Page 237 court reached the conclusion that he did. The case of Great Northern Railway Company v. City of Minneapolis (Minn.) 161 N.W. 231, is a case very much in point, and is a case against the contention of defendant in error. We could cite a great many of the cases bearing on this subject that we have examined, but we think enough has been said to show that in our judgment, the judgment of the trial court should be reversed and remanded, with direction to set aside the judgment heretofore rendered and enter judgment for the defendant.
By the Court: It is so ordered.