Before PHILLIPS, Chief Judge, and HUXMAN and MURRAH, Circuit Judges.
The Choctaw and Chickasaw Nations*fn1 brought this action against the City of Atoka, Oklahoma,*fn2 to quiet the title to a 450.96-acre tract of land situated near the City in Atoka County, Oklahoma, and to recover damages for the alleged wrongful withholding of possession of the land.
On September 27, 1830, the United States and the Choctaw Nation entered into a treaty*fn3 by which the United States agreed to convey to the Choctaw Nation "a tract of country west of the Mississippi River, in fee simple to them and their descendants, to inure to them while they shall exist as a nation and live on it, * * *." Agreeable to such treaty, on March 23, 1842, the United States granted to the Choctaw Nation by patent a tract of land which embraced the land involved in this action. On June 22, 1855, the Nations entered into a treaty*fn4 by the terms of which the Chicksaw Nation acquired an interest in the land theretofore granted to the Choctaw Nation.
The City brought an action in the United States District Court for the Central Judicial District of Indian Territory at Atoka, numbered 1789 on the docket of such court, seeking condemnation of the land involved herein. Thereafter, in 1907, a judgment was entered in case No. 1789.The judgment recited that no appearance had been entered "for any of the claimants of the land sought to be condemned, although notified of this proceeding as required by law, * * *." The judgment further recited that a jury was empaneled and that it returned a verdict, which found "that the land sought to be condemned, is necessary and essential for the" City "to construct, maintain and operate a water works system," and "that said land is valued at Six Dollars per acre and of a total value of Two Thousand Seven Hundred Five Dollars and Seventy-Six Cents ($2,705.76)."
The judgment adjudged and decreed "that the lands and grounds sought to be appropriated and condemned by the" City "shall be, and the same is hereby condemned to the use of" the City, and that the City "is ordered to deposit with the Clerk of this court, the sum of Two Thousand Seven Hundred and Five Dollars and Seventy-Six Cents ($2,705.76) of which amount the Choctaw Nation * * * shall receive Two Thousand Twenty Nine and 32/100 Dollars, which shall be in full of all right, title and interest of said Nation * * * in and to said lands and grounds and the Chickasaw Nation * * * shall receive Six Hundred Seventy Five and 44/100 Dollars which shall be in full of all right, title and interest of said Nations * * * in and to said lands and grounds."
The courthouse at Atoka, Oklahoma, was burned after Oklahoma was admitted as a state and many of the records in the office of the court clerk were destroyed, or partially destroyed, by fire. The process papers in case No. 1789 were destroyed by the fire and the remaining records of the condemnation proceedings do not show whether or not the United States was a party to the action.
The City constructed two lakes on the land, one of the area of about 31 acres and the other of the area of about 5 acres. For a number of years such lakes were the sole source of water supply for the City. The water flowed by gravity from the lakes to the distributing system of the City. At the time of the trial, water was flowing from such lakes by gravity into a lake above a low-water dam which the City had constructed on the Muddy Boggy River at a point about a mile and a half from the land involved herein, where the City maintains a purifying and distribution system.
The lakes on the land involved herein are not now used as the sole water supply for the City, but are maintained on a stand-by or supplemental basis. Since the construction of the low-water dam, the water from the lakes on the land involved herein is used when the Muddy Boggy River is so low that the level of the water is below the pumps. Muddy Boggy River was low at the time of the trial and it was necessary to use the water from the lakes to supply adequate water for the City. The City has also used the land for the sale of fishing privileges, as an airport, and as a hay meadow. It also issued an oil and gas lease on the land from which it received a bonus and rental payments. Income received by the City for the years 1937 to 1952 aggregated $7,784.84. In 1952, the City permitted a women's club to construct a bathhouse on one of the lakes, with facilities for both men and women.
The City has not abandoned the lands for the purposes for which they were condemned.
The court found the facts substantially as above stated and held that the Nations had failed to establish by proof that the territorial court was without jurisdiction in case No. 1789, and that the judgment therein must be regarded as valid; that the City was authorized to acquire by condemnation a full fee simple title in whatever tribal lands it needed for waterworks and watershed purposes, and that by the judgment in case No. 1789 the City acquired the full fee simple title to the lands herein involved; and that the Nations are barred by the defenses of laches, limitations and estoppel. From a judgment in favor of the City, the Nations have appealed.
We shall assume, without deciding, that the United States was an indispensable party to the condemnation proceedings. The record did not show that the United States was not a party and the judgment recited that all of the claimants to the land sought to be condemned had been notified of the proceedings as required by law.
The instant action was a collateral attack upon the judgment in the condemnation proceedings. The court had general jurisdiction of the subject matter of the action. 25 Stat. 783, 784, §§ 5, 6; 26 Stat. 81, 93, § 29. Against a collateral attack on a judgment rendered by a court of competent jurisdiction, it will be presumed that court had jurisdiction of the subject matter and of the parties,*fn5 and that all facts necessary to give the court jurisdiction or power to render the judgment existed and were duly proven and found,*fn6 unless the fact of want of jurisdiction and the consequent invalidity of the judgment affirmatively appears on the face of the judgment or of the record, or is otherwise properly established by proof.
Those presumptions will be indulged where the record, although failing to show jurisdiction affirmatively, does not distinctly ...