Payne v. Robertson

Payne, the appellant here, filed his bill of complaint in the district court for the county of Logan, and territory of Oklahoma, First judicial district, against the present appellees. It was averred in the bill that prior to the passage of the act of congress of March 2, 1889, providing for opening the Oklahoma lands for settlement, the complainant had been duly appointed and qualified as a deputy marshal of the United States, and that after the proclamation of the president on March 23, 1889, declaring that said lands would be open to settlement after noon of the 22d of April, 1889, complainant, in pursuance of orders of his superior officer, the marshal of the United States for the district of Kansas, went into the territory, to the locality where the United States land office at Guthri was located, for the purpose of preserving public order; that, being rightfully in said territory, and possessed of all the qualifications required by the act of congress to authorize an entry of lands in such territory for the purpose of a homestead, complainant, after 12 o'clock, noon, of said April 22, 1889, settled upon a named quarter section of land, at once commenced digging a well thereon, and claimed the same as his homestead; and that on the next day he duly entered said tract of land at the United States land office in Guthrie, paid the necessary charges and expenses connected with such entry, and thereafter fully complied with all other requirements of the homestead law. Though the bill averred that, at the time of his going into the territory to perform the duties of deputy marshal, complainant 'had formed no purpose or intention in regard to selecting and taking a homestead when said lands should be duly opened to settlement,' nevertheless it was averred elsewhere in the bill that in reliance on certain opinions and assurances of the commissioner of the general land office and the secretary of the interior, claimed to have been communicated to parties similarly situated as was the complainant, to the effect that persons so situated were not disqualified from entering a homestead when the lands became opened to settlement, complainant remained in the territory, and made the settlement in question. It was further averred that, subsequent to such entry and settlement, the defendant Fitzgerald went upon and claimed said tract of land as a homestead, and that other parties, by force, and against the notice and warning of the complainant, proceeded to stake off and occupy a large portion thereof as a town site, in violation of law and of the prior superior homestead rights of the complainant. It was also averred that on May 9, 1889, the town-site claimants instituted proceedings in the United States land office at Guthrie, Okl., to obtain a concellation of the homestead entry of complainant, and that ultimately such entry was canceled; the secretary of the interior approving the action of the commissioner of the general land office in ordering such cancellation, on the ground that complainant was disqualified, by his presence in the territory prior to the time fixed in the proclamation of the president, from making the entry It was further averred that subsequently the secretary of the interior, in pursuance of the provision of the act of May 14, 1890, c. 207, appointed the defendants Robertson, Foster, and Schnell to prove up and enter the tract of land claimed for a town site, in trust for the inhabitants of a town to be called 'East Guthrie,' and that after final entry by such trustees a patent of the United States was duly issued to them, which it was claimed vested in said defendants the legal title to the land covered by the patent.

In conclusion, complainant averred that he had done all things required by law in order to be entitled to a final patent, and that he was the equitable owner of the land claimed by him; that the secretary of the interior had misapplied and misconstrued the law, in canceling the entry of complainant. And he prayed that the town-site trustees might be devested of the legal title to the tract in question, and it be vested in complainant. The bill was demurred to upon various grounds, and, the demurrer being sustained, a decree was thereupon entered dismissing the bill. On appeal, this decree was affirmed by the supreme court of the territory (33 Pac. 424), and from the decree of affirmance an appeal was taken to this court.

S. D. Luckett and John W. Daniel, for appellant.

Sol. Gen. Richards, Bayard T. Hainer, and Horace Speed, for appellees.

Mr. Justice WHITE, after stating the facts in the foregoing language, delivered the opinion of the court.