Potter v. Hall/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 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):

'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 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 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:

'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: '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 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:

'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 Land Dec. 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 postoffice, 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.' In Tipton v. Maloney (1896) 23 Land Dec. 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 Land Dec. 92, and Henderson v. Smith, 28 Land Dec. 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 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.

And it is so ordered. 

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