(dissenting). I cannot concur in the majority opinion herein, and because of the far-reaching effect thereof with reference to the title of property belonging to many common school districts in the state which have been included in union graded school districts, I feel that I should set forth the reasons for my dissent.
I think the opinion is erroneous in more than one respect. First, Union Graded School District No. 2, Muskogee county, never did and never could and never can acquire title to the two acres of land here involved or the buildings located thereon.
The record shows, and it is conceded, that Union Graded School District No. 2, Muskogee county, was created or established in 1921. It was created out of the territory theretofore comprising Common School District No. 11, Muskogee county, and two other school districts. The law then in force under which Union Graded School District No. 2 was created, was section 1, ch. 252, S. L. 1917. It has since been amended and is now 70 O.S. 1941 §281 (70 Okla. St. Ann. 281, 1948 Supp.).
*578Thereunder the officers of a union graded school district are authorized to establish a central school in which instruction shall be given to all pupils above the sixth grade to and including the regular high school work, and such work shall not be duplicated in other schools of the union graded school district. That left instruction in the sixth and lower grades to be given in the other schools of the union graded school district. Said Act further provides:
“ . . . No schoolhouse shall be abolished, sold or removed in any Union Graded School District or in any Consolidated District formed from territory previously comprising a Union Graded School District, except by a majority vote of the school electors living in the area included in the original school district. . . .”
Under that provision it has been expressly held by this court that:
“Where common school districts were made into union graded school districts, their legal status as common school districts were merely suspended during unionization, and hence on dissolution of union graded school districts they were reinstated and resumed their common school district status.” School Board of Consol. Dist. No. 36, Stephens County, v. Edwards, 184 Okla. 384, 87 P. 2d 962.
In the same case it was held:
“When a common school district unites to form a union graded school district the latter does not become absolute owner of the property and assets of the common school district, but the right of the taxpayers of the common school district to have said property remain a financial asset of that district is paramount to any right or interest of the union graded district as such.”
Words could hardly be plainer. If it means anything, it means that the title to property, not only the buildings but the school site, if owned by the common school district, is paramount to any right or interest of the union graded district as such. That such is the law is made doubly clear by what is said in the body of the opinion, namely:
“ . . . The union graded district organization thus in some respects resembles a form of confederacy. We are impressed with the absence of a statute among the union graded school provisions expressly transferring the original districts’ school property to the union graded district, while an express provision to that effect is included among the statutes concerning consolidated districts. We conclude that when the Burwood district became a part of the union graded district in 1926, the latter did not become absolute owner of the house in question, which was located within the original Burwood district, and that the right of the Bur-wood district taxpayers to have the house remain a financial asset of that district was paramount to any right or interest of the union graded school district as such.”
Under that decision and the clear statements therein, I am unable to understand how the trial court arrived at finding or conclusion No. 4, upon which the judgment appears to be based, wherein the court said:
“4. The statutory procedure employed in said consolidation effected a significant and radical change in the legal status of said real property and thereby established a novel stable dominion over it, indicative of a claim of exclusive adverse possession thereto by the plaintiff in this cause.”
I must confess that I am unable to understand what, if anything, that finding or conclusion means. In the first place, there was no consolidation as is the case in the creation of a consolidated school district, But if Union Graded School District No. 2 had been converted into a consolidated school district, still, under the Edwards case, supra, the school site, if owned by School District No. 11, and the buildings thereon, would still be the property of the original School District No. 11. To quiet title thereto in Union Graded School District No. 2 would be to permit it to sell or *579dispose of said property, and School District No. 11 would possibly lose the house and the site and their value, all contrary to the rule stated in the Edwards case, supra. Under the rule there stated, Union Graded School District No. 2 could never become the owner of or acquire title to any of the property owned by School District No. 11 at the time it was taken into the union graded school district. Certainly, School District No. 11 was and still is the owner of the building on the two-acre site here involved. Assuming that it was the owner of the site also, it still owns it under the law stated in the Edwards case, supra.
The trial court was without authority of law to decree Union Graded School District No. 2 to be the owner in fee of said property against School District No. 11; certainly so where School District No. 11 was not a party.
I do not question'the right of Union Graded School District No. 2 to the right of possession of the property. But this is not a suit in ejectment; it is an action to quiet title. Plaintiff alleged in its petition that it was in actual, open, notorious and exclusive possession of the property involved. If that was true then there was no occasion for this lawsuit. If that was true, there was nothing to prevent Union Graded School District No. 2 from re-opening and conducting school in said building for instruction of pupils up to the sixth grade. That is the only purpose for which it could be entitled to possession. I think the only action that plaintiff could rightfully maintain is one for possession only. But the trial court did not find that plaintiff was in possession at the time this action was commenced. It only found that:
“5. Mr. Earl White, the superintendent of Union Graded School District No. 2, who has been employed by said district at all times since same was created in 1921, testified that the plaintiff had at all times been in adverse possession of said property since February 2, 1921.”
The uncohtradicted evidence was that no school had been conducted in the building for more than two years before the action was commenced; that defendant James had fenced the site in with his other land and posted notices for the public to stay off. Mr. White did testify:
“Q. You have been in possession of it all of this time? A. That is right. Q. In open, notorious, adverse and exclusive possession? A. Yes. Q. What has been the nature of your possession all of these years? A. Well we have had peaceful possession — the board of education has had peaceful possession of it and been using it since 1921, according to my own personal knowledge.”
But he also testified that there had been no school there and that the property had not been used for school purposes since 1942. He testified further:
“Q. How many times have you been down there during the past four years? A. Oh, I expect I am out there every week or so. Q. During the last four years? A. Yes, sir. We have the school bus — it goes by there. Q. How many of those people have been in the schoolhouse in the last four years? A. I don’t know whether any of them have been in the schoolhouse or not.”
The clear weight of the evidence is that Union Graded School District No. 2 was not in possession when this action was commenced.
However, defendants, George James and Edith James, filed a cross-petition setting up title and possession in them and praying that the title of defendant James be quieted as against plaintiff. That conferred jurisdiction upon the court to determine the entire title as between the parties. Newcomer v. Robison, 159 Okla. 236, 15 P. 2d 129. But it did not confer jurisdiction upon the court to decree title in the Union Graded School District No. 2 as against the original School District No. 11.
If the majority opinion correctly states the law of this state, then every union graded school district in this *580state is the owner in fee of all of the property which each common school district therein owned at the time the union graded school district was created. That is in direct conflict with the statute and with the decision of this court in the Edwards case, supra.
I understand the rule to be that in actions to quiet title and in actions for possession and to quiet title, the plaintiff must rely upon the strength of his own right and title and not upon the weakness of the right or title of his adversary.
As I view the law, the most that Union Graded School District No. 2 could recover is the right of possession alone and that only as against defendants who were before the court.
The decree should at least be modified so as not to deprive School District No. 11 of its title to the schoolhouse, or its right to claim title to the school site, and so as to limit the effect and operation of the decree to the parties before the court.
For the reasons stated above, I respectfully dissent.