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WINEBRENNER V. FORNEY, 189 U. S. 148 (1903)

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U.S. Supreme Court

Winebrenner v. Forney, 189 U.S. 148 (1903)

Winebrenner v. Forney

No. 409

Argued March 6, 1903

Decided April 6, 1903

189 U.S. 148


Where there is a seeming contradiction between two clauses in a proclamation opening lands for settlement, the first clause being a special description of a strip of land, and the second being found in a portion of the proclamation defining the purposes for which the strip is made, the first clause is entitled to preference.

The strip of land referred to in the President's proclamation of August 19, 1893, "one hundred feet in width around and immediately within the outer boundaries of the entire tract of country to be opened to settlement," ran around and immediately within the outer boundaries of the body of lands opened for settlement, and not around the outer boundaries of the entire tract specified in the cession and relinquishment of the Cherokee Indians.

The appellee holds the government patent to the southwest quarter of section 19, township 26 north, range 1 east, of the Indian meridian in Kay County, Oklahoma Territory. The appellant claimed an equitable right to the land, and brought this suit to have the defendant declared a trustee of the title for his benefit. A demurrer to a second amended petition was sustained by the trial court, and a decree entered dismissing the suit. This decree was affirmed by the supreme court of the territory, 11 Okla. 565, and from that decision this appeal was taken. The tract is within that portion of the Cherokee Outlet opened to settlement by the President's proclamation of August 19, 1893, and the only question, as agreed by counsel on both sides, is whether appellee was disqualified by reason of being within prohibited limits on September 16, 1893, the day on which by the President's proclamation the land was opened for settlement. chanroblesvirtualawlibrary

Page 189 U. S. 149

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