same munner as a summons in a civil action, either by personal service or by publication upon proof of which service, by affidavit, or otherwise, to the satisfaction of the court, the court shall thereupon acquire jurisdiction to ascertain and determine the heirship, ownership and interest of all parties in and to said property of said deceased, and such determination shall be final and conclusive in the administration of said estate, and the title and ownership of said property. The court shall enter his order or decree establishing proof of the service of such notice. All persons appearing within the time limited as aforesaid, shall file their written appearance in person, or through their authorized attorney, such attorney filing at the same time written evidence of his authority to so appear, entry of which appearance shall be made. in the minutes of the court and in the register of proceed. ings of said estate, and the court shall after the expiration of the time limited for appearing, as aforesaid, enter an order adjudging the default of all persons for no: appearing as aforesaid who shall not have appeared, as aforesaid. At any time within twenty days after the date of the order or decree of the court establishing proof of the service of svch notice, any of such persons so appearing may file his complaint in the matter of the estate, setting forth the facts constituting his claim of heirship, ownership or interest in said estate, with such reasonable particularity as the court may require and serve a copy of the same upon each of the parties or attorneys who shall have entered their written appearance, as aforesaid, if such parties or such attorneys reside within the county, and in case any of them do not reside within the county, then service of such copy of said complaint shall be made upon the clerk of said court for them, and the clerk shall forthwith mail the same to the address of such party or attorney, as may have left with said clerk his postoffice address. Such parties are allowed twenty days after the service of the complaint, as aforesaid, within which to plead thereto and thereafter, such proceeding shall be had upon such complaint, as provided by law in case of (Continued on page 403.) CURRENT DECISIONS OF THE SUPREME W. P. MILLS, Plaintiff in error, VS. W. A. GLASSCOCK, Defendant in error. Rendered April. 26, 1910. Error from District Court of Osage County. John J. Shea, Trial Judge. 1. No. 1187 Reversed and remanded Section 10 of the Osage Allotting Act, approved June 28, 1906, providing that "public highways or roads two rods in width, being one rod on each side of all section lines in the Osage Indian Reservation, may be established without any compensation therefor, is a general dedication without reservation or exception of the right of way along all section lines in said reservation for highway purposes and sec. 6072 of Wilson's Rev. & Ann. St. 1903, providing that "all section lines shall be and are hereby declared to be highways," and sec. 2 of art. 16 of the Constitution of the state declaring that the state accepts all reservations and lands for public highways made under any grant, agreement, treaty or act of Congress, is an acceptance of this Congressional grant. becoming operative without any additional legislation. 2. The road supervisor having given 30 days notice in writing to the owner of the property obstructed a public highway on the section lines within Osage County, formerly constituting the Osage Indian Reservation, in accordance with sec. 30, art. 1, ch. 32 of the Sess. Laws 1909, to remove the property obstructing such public highway, and the same not having been removed within the time specified in such notice, and such road supervisor having proceeded to remove such abstruction or nuisance the owner or occupant of such public highway will not be permited to invoke the powers of equity to restrain such supervisor from removing such obstruction or nuisance. L. F. Roberts, County Attorney, Palmer, Comstock & Hudson, For Plaintiff in Error. SUPERIOR OIL & GAS COMPANY, vs. Plaintiff in Error No. 436. JAMES G. NEHLIN, Defendant in Error. Rendered Mar. 8, 1910. Error from District Court of Nowata County. Hon. T. L. Brown, Trial Judge. Remanded. 1. Specific performance will not lie unless the agreement is certain, fair and just in all its parts, and in such an action any element showing that the contract is unfair, unjust and against good conscience, will justify the court in refusing such decree although the contract, had it been executed, might offer no sufficient ground for cancellation. 2. An executory contract which under its terms leaves it optional with one party whether or not he will proceed with the contemplated enterprise, makes the same likewise optional with the other and specific performance will not be decreed. 3. A different rule of construction obtains as to oil and gas leases, from that applied to ordinary leases or to other mining leases, and owing to the peculiar nature of the mineral, and the danger of loss to the owner from drainage by surrounding wells, such leases are construed most strongly against the lessee and in favor of the lessor. 4. Defendant, an intermarried citizen, allottee, of the Cherokee nation, June 24th, 1904, executed a contract with plaintiff in which he agreed to make an oil and gas lease on his allotment in accordance with the terms and conditions required by the Secretary of the Interior, or if they be not required, a regular oil and gas lease such as was used in the State of Kansas. Action brought for specific performance in which the lease agreed on and sought to be enforced was shown to contain a proviso allowing plaintiff fifteen years from its execution within which to begin operations and for an unspecified con. sideration, license to extend such terms indefinitely; decree by the court denied; HELD, not error. 5. The relief granted in equity is such as the nature of the case, the law and the facts demand, not at the beginning, but at the time the decree is intered in the litigation. 6. In a case where specific performance requiring execution of a contract is not decreed by reason of a want of equity growing out of the peculiar character of the contract involved, it is the duty of the court to retain jurisdiction of the action and to decree compensation to the plaintiff to the extent of the money by him paid and interest thereon, and for all beneficial and lasting improv ments which in carrying out the terms of the alleged contract he may have in good faith made upon the premises. 7. Where in an action for specific performance of a lease the same is found to be of a class which will not support a decree but there is no fraud and plaintiff has paid a money consideration thereon and has in good faith entered under the same and made valuable and lasting improvements, a court in denying specific performance will grant plaintiff an opportunity to establish his right to compensation from defendant and decree the same a lien upon the premises involved. (Syllabus by the Court.) Eugene B. Lawson, for plaintiff in error. OPINION of the Court by DUNN, C. J. November 6th, 1906, the Superior Oil and Gas Company filed its complaint in equity against James G. Nehlin in the United States Court for the Northern District for the Indian Territory sitting at Nowata, for the purpose of securing the reformation of a certain contract and its specific performance. The lower court denied. the plaintiff's prayer and the cause has been brought to this court for review. For a correct understanding of the matters placed at issue and necessary for determina tion, we will set forth the material averments of the complaint and the answer. In its amended complaint the plaintiff avers that on the 24th day of June, 1905, the defendant was a citizen of the United States, a white man, not of Indian blood, and an adopted citizen of the Cherokee nation. That having full and complete power and authority in the premises, he entered into the following written agree. ment: "This agreement made and entered into this the 21st day of May, A. D. 1904, by and between James G. Nehlin, party of the first part, and Superior Oil and Gas Co., a corporation, duly organized and existing under the law of Arkansas, applicable to the Indian Territory, party of the second part witnesseth: That where the said James G. Nehlin has filed as a duly enrolled citizen of the Cherokee Nation of the following lands: The NE 1-4 of SE 1-4 of sec. 19; and the W 1-2 of the NW 1-4 of the SW 1-4 of sec. 20; and S 1-4 of SE 1-4 of sec. 19. And Whereas the legal rights of said Nehlin to receive the allotment of soid land is not settled; it is mutually agreed as follows: That as soon as the rights of the said Mohlin are settled in his favor, he will at once make an oil and gas lease to the party of the second part, in accordance with terms and conditions required by the Secretary of the Interior, or if they be not required, a regular oil and gas lease such as is used in the state of Kansas. In the event, however, that within a reasonable time from date hereof the case has not been settled, or the party of the second part may desire to drill for oil, said Nehlin agrees to provide for filing of some one else on the land who will execute said lease. That under and by virtue of the terms of said contract the defendant agreed with plaintiff that he would execute to plaintiff an oil and gas lease on the lands selected by him, whenever his rights as a citizen of the Cherokee nation were fully and finally established. That at the time of entering into the said contract there was a mutual mistake made by plaintiff and defendant in describing the said lands in said contract, in this, to-wit: Here is set out the alleged error, with a discription of the |