189 U.S. 292
THOMAS W. POTTER, Appt.,
Submitted February 24, 1903.
Decided April 6, 1903.
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 [189 U.S. 292, 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 Poter 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 [189 U.S. 292, 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 deduction which the Secretary drew from these facts was thus stated by him:
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:
Messrs. J. W. Shartell and J. H. Everest for appellant.
Messrs. Charles P. Lincoln and Mark D. Libby for appellee.
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 [189 U.S. 292, 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 , 37 L. ed. 533, 13 Sup. Ct. Rep. 634; Payne v. Robertson, 169 U.S. 323 , 42 L. ed. 764, 18 Sup. Ct. Rep. 337, and Calhoun v. Violet, 173 U.S. 60 , 43 L. ed. 614, 19 Sup. Ct. Rep. 324. 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. 501, L. ed. p. 536, Sup. Ct. Rep. p. 638):
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 S. 490, 37 L. ed. 533, 13 Sup. Ct. Rep. 634, statutes and proclamation of the President by which this question is controlled were fully set out in Smith v. Townsend, 148 U.S. 490 , 37 L. ed 533, 13 Sup. Ct. Rep. 634, 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. at L. 757, chap. 317), the act of March 2, 1889 (25 Stat. at L. 980 and 1005, chap. 412), and the proclamation of the President of March 23, 1889 (26 Stat. at L. 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:
The proclamation of the President contained these words: [189 U.S. 292, 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 22d 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 2d day of March and the 22d 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 2d 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 2d 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 [189 U.S. 292, 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 Land Dec. 580. This ruling was followed in Higgins v. Adams, 18 Land Dec. 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 Land Dec. 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:
The judgment of the Supreme Court of the Territory must be reversed, and the cause remanded for further proceedings in accordance with this opinion.
And it is so ordered.