Smith v. Townsend
Statement by Mr. Justice BREWER: On April 30, 1891, the appellant filed his complaint in the district court of Oklahoma county, territory of Oklahoma. In this complaint he alleged his citizenship, and full qualification to enter public lands under the homestead laws of the United States. That during the years 1888 and 1889 the Atchison, Topeka & Santa Fe Railorad Company was engaged in operating a railroad through the Indian Territory, having a right of way therein, granted by treaty with the Indians and acts of congress. That during those years he was employed as a section hand by said company, and resided in a station house belonging to it, on the right of way, at a place known as 'Edmond Station.' That he entered into the employment of the railroad company, and continued in such employment, and commenced living at said Edmond Station, without any intent to take lands within the Indian Territory, but solely to discharge his duties as an employe of the company. That when the lands surrounding said station were open to settlement under the acts of congress of March 1 and 2, 1889, and the proclamation of the president of March 23, 1889, plaintiff was at said Edmond Station, and on said right of way, and soon after the hour of noon on April 22, 1889, went upon the land in controversy, and settled upon it as his homestead, and with the intention to occupy and enter it as his homestead under the laws of the United States. That pursuant to such intention he built a house thereon, and otherwise improved the premises, and dwelt upon it as his home, and on April 23, 1889, duly made an entry at the proper land office at Guthrie, Ind. T. That on the 22d of June, 1889, the defendant filed in the local land office a contest, which contest was heard in such land office on the following statement of facts:

'Alexander F. Smith had been for a long time prior to March 2, 1889, in the employ of the A., T. & S. F. R. R. Co. as a section hand, and on January 30, 1889, came to Edmond, Oklahoma territory, in that capacity, bringing his family with him. He did not enter the territory with the expectation or intention of taking land in the Oklahoma territory. He remained in the employ of the railroad company until noon of April 22, 1889, Santa Fe R. R. time, when he removed his tent to a point about one hundred and fifty yards distant from the right of way of said railroad, and on the land in controversy, where he put it up, and moved into it. From January 30, 1889, Smith lived with his family in his tent on the right of way of the A., T. & S. F. R. R., where it passes through the land in controversy. Prior to April 22, 1889, Smith had indicated his intention to take the land in controversy by stating the fact to his fellow workmen, but had done no act towards carrying out said intention. A notice was posted at the station of Edmond by A., T. & S. F. R. R. Co., warning all employes that if they expected to take land they must leave the Oklahoma country, and this fact was called to Smith's notice. Smith has, since noon of April 22, 1889, continued to reside upon, cultivate, and improve said land, in good faith, as a homestead, and now has improvements thereon. Smith is a legally qualified homesteader, unless excluded by reason of his being in the Oklahoma country prior to April, 1889. Smith is at present in the employ of the A., T. & S. F. R. R. Co., and has been most of the time since April 22, 1889.'

That on the trial of said contest the local land officers decided in plaintiff's favor, but on appeal to the commissioner of the land office he reversed their decision, which ruling of the commissioner was subsequently affirmed by the secretary of the interior; and on February 28, 1891, plaintiff's homestead entry was canceled; and that the defendant, on March 12, 1891, made a homestead entry of the land, which homestead entry was, on the 30th day of April, 1891, commuted, the land paid for at a dollar and a quarter per acre, and a final receipt issued therefor. Plaintiff claims that there was error of law in the ruling of the commissioner of the land office and of the secretary of the interior, and prays that the defendant be decreed to hold the legal title to the land in trust for his use and benefit. To this bill of complaint a demurrer was filed, which, on May 16, 1891, was sustained by the district court, and the complaint dismissed. From the decree of dismissal an appeal was taken to the supreme court of the territory, which, on the 1st day of February, 1892 affirmed the decision of the district court. From that judgment of affirmance the appellant has appealed to this court.

A. H. Garland and Heber J. May, for appellant.

Chas. A. Maxwell and George S.C.hase, for appellee.

Asst. Atty. Gen. Parker and John F. Stone, U.S. Dist. Atty.

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

Notes
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