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
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
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."
MR. JUSTICE WHITE, after making the foregoing statement,
delivered the opinion of the Court.
The supreme court of the territory disregarded the final action
of the Land Department as expressed in the opinion of the Acting
Secretary on the rehearing, and decreed that Potter held the land
in trust for the defendant and appellee on two
Page 189 U. S. 296
grounds: first, because the final action of the Department was
held to be a violation of the provisions of the law opening the
land in question to settlement, and second, because, as stated by
the court,
"We feel the less hesitation in reversing the conclusion of the
last tribunal of the Land Department 'on review' not only because
the conclusion we now arrive at is that
which must necessarily
be arrived at upon the facts (italics ours), but also because
it was the one accepted by the Secretary of the Interior, as well
as the Commissioner of the General Land Office."
The conclusion of the court that the final action of the Land
Department was contrary to law was rested upon what was deemed to
be the controlling effect of the rulings in
Smith v.
Townsend, 148 U. S. 490;
Payne v. Robertson, 169 U. S. 323, and
Calhoun v. Violet, 173 U. S. 60. But
the decisions relied upon do not sustain the conclusion which the
court deduced from them. In all three of the cases, the only
question decided was the validity of an entry made by one who was
within the inhibited territory at the time when the land was opened
by law for settlement. The cases therefore did not involve whether
one who was outside of the territory at the moment of time when the
land was opened lost his right to take part in the race into the
territory because at a time previous to that moment, he had been
within the territory in question. Indeed, not only was the question
which this case presents not embraced within the decisions upon
which the court below based its conclusion, but it was expressly
excluded from the rulings made in the cases in question. Thus, in
Smith v. Townsend, in referring to the statute and the
President's proclamation opening the land for settlement, it was
said in the concluding passage of the opinion (p.
148 U. S.
501):
"It may be said that if this literal and comprehensive meaning
is given to these words, it would follow that anyone who after
March 2 and before April 22 should chance to step within the limits
of the territory would be forever disqualified from taking a
homestead therein. Doubtless he would be within the letter of the
statute, but if, at the hour of noon on April 22, when the legal
barrier was by the President destroyed, he was in fact outside of
the limits of the territory, it may perhaps be
Page 189 U. S. 297
said that if within the letter, he was not within the spirit, of
the law, and therefore not disqualified from taking a homestead. Be
that as it may, and it will be time enough to consider that
question when it is presented, it is enough now to hold that one
who was within the territorial limits at the hour of noon, April 22
was, within both the letter and the spirit of the statute,
disqualified to take a homestead therein."
The court below having, then, erroneously held that the case was
controlled by the previous adjudications of this Court, we are
called upon to determine the question which was expressly reserved
in
Smith v. Townsend -- that is, whether one who was
outside of the legal barrier at twelve o'clock M. on April 22, the
day and time when that barrier was removed by operation of law and
the terms of the proclamation of the President, was disqualified
from participating in the race for the land because, prior to that
date and within the prohibited period, he had been within the
territory which was thereafter to be opened for settlement. The
statutes and proclamation of the President by which this question
is controlled were fully set out in
Smith v. Townsend,
supra, and need not be at length restated. Suffice it to say,
that the provisions opening the land for settlement, regulating the
mode of settlement, and the President's proclamation executing
these statutes, are found in the Act of March 1, 1889, 25 Stat.
757, c. 317, the Act of March 2, 1889, 25 Stat. 980 and 1005, and
the proclamation of the President of March 23, 1889, 26 Stat. 1546.
The first of these acts contained the provision that
"any person who may enter upon any part of said lands in said
agreement mentioned prior to the time that the same are opened to
settlement by act of Congress shall not be permitted to occupy or
to make entry of such lands or lay any claim thereto."
The act of the subsequent day (March 2, 1889) contained the
following provision:
"But until said lands are opened for settlement by proclamation
of the President, no person shall be permitted to enter upon and
occupy the same, and no person violating this provision shall ever
be permitted to enter any of said lands or acquire any rights
thereto."
The proclamation of the President contained these words:
Page 189 U. S. 298
"Warning is hereby again expressly given that no person entering
upon and occupying said lands before said hour of twelve o'clock,
noon, of the twenty-second day of April, A.D. 1889, hereinbefore
fixed, will ever be permitted to enter any of said lands or acquire
any rights thereto."
Doubtless, as observed in
Smith v. Townsend, a rigorous
adherence to the mere letter of these statutes and the terms of the
proclamation would exclude every person from the right to enter and
occupy land within the prohibited territory, even although such
person was outside of the territory, and therefore on an equality
with all others, if perchance such persons had accidentally or
otherwise gone into the prohibited territory between the second day
of March and the twenty-second day of April. But it is also true
that, if the provisions of the statute and proclamation be enforced
not according to their mere letter, but in harmony with the
intention which may be fairly deduced from them, a contrary rule
would result. Whilst, as held in
Smith v. Townsend and the
cases referred to which have followed it, obviously the purpose of
the statute was to exclude anyone from entering land who was within
the territory at the period fixed for the opening, it may well be
doubted whether the words "enter upon and occupy," as used in the
act of 1889 and in the President's proclamation, embrace the mere
accidental or casual presence in the prohibited territory
subsequent to the second of March and prior to the 22d of April of
one who was outside on the 22d of April, and therefore in a
position of substantial equality with others seeking to make the
race for the land.
The Land Department, charged with the execution of the act, was
early called upon to determine whether one who was outside of the
territory at the time of the opening, and took part in the race for
land, was disqualified because, subsequent to the second of March,
and before the opening, he had been within the limits. In the case
referred to, the entryman had, on the 20th of April, crossed the
line accidentally and gone two miles into the territory, but, on
being informed of the fact, had retired and waited with others on
the line until the 22d, the day
Page 189 U. S. 299
of opening. After considering the terms of the statute, the
conclusion was reached that an entry of this kind was not within
the spirit of the prohibition of the statute, and the entry was
confirmed. Donnell v. Kittrell, (1892) 15 L.D. 580. This ruling was
followed in Higgins v. Adams, 18 L.D. 598, where it was held that
one who had gone into the disputed territory on the morning of the
day of the opening for the purpose of watering his team, and who,
on completing this object, had returned to the boundary and made a
start with the others, did not come within the spirit of the
statute. In Curnutt v. Jones (1895) 21 L.D. 40, the whole subject
was elaborately reviewed and many prior cases referred to. Briefly,
the facts in the case were these: the entryman had resided for
several years in the vicinage of the prohibited territory, and had
habitually entered therein for the purpose of getting his mail. On
the day, however, of the opening, he was at the line with others
and took part in the race for land. It was held that the prior
entry did not deprive him of the right to enter land; that whether
entry prior to the day of the opening affected the right to make
entry would depend upon the facts of each particular case, and upon
whether, in considering them, it was concluded that the prior entry
placed the one who had made it in such a position of advantage over
others as to render it unjust and inequitable to allow him to make
an entry of land. In summing up the case, Mr. Secretary Smith, in
his opinion, said:
"Jones, the defendant in this case, had lived for some time on
the border of the territory, within less than a mile from the line,
and, almost from the necessity of his situation, was familiar with
the lands in the immediate vicinity. His information respecting
them, and particularly respecting the tract subsequently entered by
him, is shown to have been acquired long prior to March 2, 1889,
and, as was well said in the case of Golden v. Cole, 16 L.D. 375,
'it was impossible to deprive people who had been over the
Territory of a knowledge that they had thus acquired.' His
periodical visits to Oklahoma City, which was at once his post
office, his most convenient and accessible railway station, and his
market town, do not appear to have brought him any advantage over
other persons seeking lands in the territory. "
Page 189 U. S. 300
In Tipton v. Maloney, (1896) 23 L.D. 186, it was held that one
who, within the prohibited period, had passed along the highways in
the territory was not disqualified for making an entry, provided he
was outside of the line on the day of the opening and took part on
an equality with others in the effort to secure land. And rulings
to the like effect were made in Hensley v. Waner, 24 L.D. 92, and
Henderson v. Smith, 28 L.D. 303. The settled rule then applied by
the Land Department in the execution of the statute is that one who
took part in the race for land on the day of the opening was not
prohibited from taking land because of a prior entry into the
territory unless it be shown that manifest advantage resulted to
the entryman from his previous going into the territory. The rule
thus for a long period and consistently enforced must obviously
have become the foundation of many rights of property. And, as we
consider that the rule thus applied in the practical administration
of the statute by the officials by law charged with its execution
conforms to its intention, we are unwilling to overthrow it by a
resort to a narrow and technical construction. It remains only to
consider whether error was committed by the Department in finally
ruling that the entry made by Potter on the morning of the 22d,
before he returned to the line to take part in the race, which
involved error of law reviewable by the courts. But as such entry
did not as a matter of law preclude Potter's right to go outside of
the territory and take part in the race for land, but depended upon
whether, as a matter of fact, he obtained by his previous going
into the territory a substantial advantage over others, which he
would not have otherwise possessed, it follows that the final
conclusion of the Department that no such advantage resulted
involved but the finding of an ultimate fact, and not a conclusion
of law, and it is therefore not reviewable. If the facts found by
the Secretary had no tendency to sustain the conclusion reached by
him, it might be that a question of law would arise, but such is
not the case. Indeed, in view of the finding that Potter had been
for a long period of time living across the line, in close
proximity to the land which he entered, and which was only a
quarter of a mile distant from the place where the
Page 189 U. S. 301
race began, and that he reached the land in two minutes from the
time when the start was made, it might well be argued that his
going into the territory, as stated, had no tendency to establish
that he obtained an advantage by reason of acquiring information
which he had not previously possessed. But so to say would lead
only to the conclusion that, as a matter of law, the Department
rightly held that Potter was a qualified entryman. The fact that
the final conclusion as to the ultimate facts reached by the
Department differed from the conception of such ultimate facts
entertained by the Department in previous stages of the controversy
affords no ground for disregarding the conclusion of ultimate fact
finally reached, which was binding between the parties.
The judgment of the Supreme Court of the Territory must be
reversed, and the cause remanded for further proceedings in
accordance with this opinion.
