US SUPREME COURT DECISIONS

Smith v. Townsend, 148 U. S. 490; Payne v. Robinson, 169 U. S. 323, and Calhoun v. Violet, 173 U. S. 60, decided only that one who, in violation of law, was within the Territory in Oklahoma opened for settlement under the Act of March 2, 1889, and the President's proclamation executing the same at the moment of time when the race for land began, was disqualified from entering land. In those cases, the question was reserved whether one was disqualified because he had been in the territory prior to the time fixed for its opening, but had retired from the territory and on the day of the opening had made the race for land on an equality with others. Held, therefore, that the court below erred in treating the cases in question as decisive of the question which they reserved.

The Land Department charged with the execution of the statute having in many rulings held that, prior entry did not disqualify provided the one who had so entered had returned and taken part in the race with the others, unless the prior entry conferred some manifest advantage, which would not otherwise have been possessed, held that, as this construction of the statute was in accord with the spirit and intent of the act, it should not be disregarded by the courts upon the ground that it was in conflict with the mere letter of the statute.

The ruling of the Land Department in this particular case that the prior going into the prohibited territory by an entryman who had retired and taken part in the race on an equality with others did not disqualify the entryman, because the prior entry had given him no particular advantage which be would not otherwise have possessed, held to be a finding of fact not reviewable by the courts.

This case involves conflicting claims to a tract of land in Oklahoma. Potter, the appellant, who was plaintiff below, claiming to be the owner by title derived under the homestead laws of the United States, sued to recover the property. Mrs. Hall, the appellee, the defendant below, by answer and cross-petition averred that herself and husband, being duly qualified to enter the land under the homestead laws, were the first to enter upon and occupy it in the year 1889, when it was opened for settlement, and that they had resided on it as their homestead up to the time of the death of the husband, and she thereafter had chanrobles.com-red

Page 189 U. S. 293

continued to reside on it as a homestead up to the bringing of the suit. It was alleged that Potter, claiming that he had duly entered upon the land, contested the right of Hall to make entry thereof on the ground that Hall did not possess the requisite qualifications and had abandoned the land, and that Hall, on the other hand, had contested the right of Potter on the ground that he had unlawfully entered upon the land prior to the time when it was open for settlement in violation of the act of 1889 and the proclamation of the President carrying out the provisions of that act. It was moreover alleged that the result of these contests was a recommendation by the local land officers that Hall's application be approved and that Potter's be rejected. A copy of the report of the register and receiver was made a part of the cross-petition. It was then averred that the Secretary of the Interior, in reviewing the action of the Commissioner of the General Land Office, passing on the recommendation of the register and receiver, had approved the finding of the local officers, but that subsequently the Acting Secretary had reviewed the previous decision of the Secretary, had rejected the claim of Hall and sustained the right of Potter, and that the patent of the United States had issued to Potter in consequence of such decision. The opinion of the Secretary on the first hearing and that, on the second were also made part of the cross-petition. Charging that the decision of the Secretary in favor of Potter involved error of law reviewable by the court, the prayer of the cross-petitioner was that, as the widow of Hall, she be recognized as entitled to make entry of the land; that Potter be adjudged to hold the land under the patent of the United States for her benefit, and that a decree be awarded directing a conveyance. To the cross-petition, Potter demurred on the ground of no cause of action. The demurrer having been overruled and Potter declining to plead further, a decree was entered in favor of the defendant Hall adjudging the land to her and decreeing a conveyance. The supreme court of the territory affirmed the decree. The material facts found by the Land Department are these: Potter entered on the land the 22d of April, 1889, the day upon which it was open for settlement, and continuously maintained chanrobles.com-red

Page 189 U. S. 294

his residence thereon. Hall first entered upon a part of the land about six months after -- that is, in October, 1889. The facts concerning Potter's entry were stated by the Secretary in his opinion on the first hearing as follows:

"The history of the case and the material facts are set out in the decision appealed from, and need not be restated in detail. The tract in question formed a part of the lands in Oklahoma which were opened to settlement at noon on April 22, 1889; shortly before this date, Potter had been appointed by the Indian agent of the Cheyenne and Arapahoe agency as assistant chief of police, with instructions to proceed to the east line of the reservation, preserve order and prevent any settlement on the same. The east line of the Cheyenne and Arapahoe reservation is also the west line of the lands opened for settlement as aforesaid, and is within possibly a quarter of a mile from the tract in question. On this morning of April 22, 1889, some three or four hours before the hour of noon, Potter, who it seems was at said line, seeing some freighters camped on the land involved, went thereon to order them off; he then returned to the line, and (at) the hour of noon started in the race for a claim; he reached the land before any of his competitors, and, as he states, commenced his settlement at one-half or one minute after twelve o'clock."

The deduction which the Secretary drew from these facts was thus stated by him:

"In my opinion, the facts just stated sustain the conclusion reached by the local officers to the effect that Potter was not qualified to enter the tract in question by going into the territory on the morning of April 22, 1889, before the hour when the lands therein were opened to settlement; he necessarily secured an opportunity to observe the various tracts lying near the line and the ways of reaching them, and this, taken in connection with the fact that at the said hour he went directly from the line to the land in question, makes it plain in my mind that, if he did not previously select the tract of land in dispute, he obtained information that gave him an advantage over rival claim seekers. It follows under the prevailing rulings, Dean v. Simmons, 17 L.D. 526, and cases cited, that

Page 189 U. S. 295

Potter is not qualified to make entry of land in Oklahoma, and that his application to enter the tract in question must be rejected."

The Acting Secretary, when he came to consider the case on a rehearing or review, whilst accepting the facts concerning Potter's entry as stated in the previous opinion, drew from them a different conclusion from that which had previously been deduced. He said:

"Accepting this statement as correct, and a reexamination of the record satisfies me of its correctness so far as it goes, I scarcely think the conclusion warranted that he necessarily secured an opportunity to observe the various tracts of land lying near the land and the way of reaching them, so that he obtained information that gave him an advantage over rival claim seekers. He had been employed at the Cheyenne and Arapahoe agency nearby since 1883, and, for six years before the opening of the country to settlement, he had lived in close proximity to the land in dispute. He had nothing to gain or to learn. Therefore, by the short excursion with which he is charged, and which, it cannot be denied, was made in the performance of duty devolved upon him by the orders of the agent who appointed him to the command of the police at that point, he neither gained nor sought advantage, and it was error to hold that, under the circumstances of entry into the territory, he was disqualified thereby."