Paine v. Foster

53 P. 109 | Okla. | 1896

Lead Opinion

Opinion by The court having been unable to reach a conclusion in this case, I desire to place of record my individual views on the questions involved.

This is a suit in equity to have the defendants declared trustees for the plaintiff in error. The action grows out of the complications arising from the early settlement of a portion of the townsite of Guthrie. It would appear from the record in the case that on the 22d day of April, 1889, Veeder B. Paine was in the Iowa reservation, about ten or eleven miles east of the townsite of Guthrie, and that at 12 o'clock, noon, of said day, he rode on horseback to the tract of land in question, and claims to have made settlement upon the southwest quarter of section 9, township 16 north, of range 2 west, in Logan county, Territory of Oklahoma, for the purpose of making homestead entry of the said tract under the homestead laws of the United States; that shortly after 12 o'clock of said day a number of persons attempted to settle upon said tract, and selected the same for a portion of a townsite. It further appears that on the east half of section 8, adjoining section 9 on the west, was located Guthrie station, on the line of the Atchison, Topeka Santa Fe railway, and also the United States land office for the Guthrie land district; that the east half of section 8 was selected, surveyed, platted, and settled immediately after the opening of said country to settlement as the townsite of Guthrie; that the west half of section 9, which embraces the tract in controversy, was also selected, platted, settled, and improved as the townsite of East Guthrie; that within a few days after settlement of the townsite the townsite settlers, through an authorized agent, made an application to the local land office to enter the west half of section 9, for a townsite; that Paine made application to enter the southwest quarter of section 9, for a homestead. Some other applications were made by adverse claimants to the tract for homestead purposes. These several applications were held to await the final determination of the question as to who was entitled to the tract under the land laws of the United States.

The commissioner of the general land office directed a hearing to be had before the local land office, in which the townsite claimants were to be made plaintiffs, and the several agricultural claimants defendants, and directed that the qualification of the several homestead claimants be inquired into, and directed the townsite claimants to show when said land was first actually selected and occupied as a townsite, and the number of inhabitants, character and value of all municipal improvements thereon before and at the date of filing their application and the date of hearing, and to determine whether the homestead claimants had established settlements on the land they were seeking to enter, and the dates thereof. A hearing was had before the register and receiver of the Guthrie land office, and a vast amount of testimony submitted by the several claimants. Subsequently the register and receiver rendered a decision in favor of the townsite settlers, and adverse to Paine. Paine appealed from this decision to the commissioner of the general land office, who reversed the finding of the register and receiver, and held that Paine was the prior settler upon said land, and that he had complied with the requirements of the homestead laws, and was entitled to the entry upon said land. From this decision the townsite settlers appealed to the secretary of the interior, and the secretary found in favor of the townsite settlers, and against the claims of Paine; holding that Paine's settlement was not made in good faith for homestead purposes, but was made for speculation. Paine filed his motion for review before the secretary of the interior, which motion was subsequently overruled. Afterwards the defendants, as townsite trustees under the act of congress of May 14, 1890, were allowed to enter the tract in question, together with other lands, for townsite purposes, for the use and benefits of the occupants thereof, and were by the rules of the department directed to proceed to convey the several lots embraced in said tract to the several occupants thereof as their interests might appear. Subsequently a patent was issued to said trustees, conveying said tract to them in trust for the use of the townsite occupants.

On the 4th day of February, 1892, subsequent to the time the patent had issued as aforesaid, Veeder B. Paine filed in the district court of Logan county his petition alleging that the defendants, Foster, Robertson, and Schnell, were the duly appointed, qualified, and acting trustees of townsite board No. 6, and as such held the legal title and patent to the southwest quarter of section 9, township 16 north, of range 2 west, in Logan county, Territory of Oklahoma, and that the plaintiff was the equitable owner and entitled to receive the legal title to said tract of land; that he based his claim thereto on his prior settlement upon said land on April 22, 1889. It is further alleged in the petition that a contest had been instituted at the United States land office at Guthrie, to determine the respective rights of himself and the other claimants to said tract, and the decision of the local land office was adverse to him; that an appeal was taken to the commissioner of the general land office, who reversed the local office, and decided in his favor, awarding him the land; that an appeal was then taken from this decision to the secretary of the interior, who reversed the commissioner, and awarded the land to the townsite settlers; that the decision of the secretary of the interior against him was upon the theory that his settlement upon said land was not in good faith, but that he had settled upon the land for speculative purposes, for the purpose of entering it under the homestead laws, and then selling it out to the townsite claimants. He further alleges that there was no evidence whatever in the record, and none before the secretary of the interior in any way tending to show, either directly or indirectly, that he took said land for speculative purposes; that the finding of the secretary of the interior was not upon any controverted fact, or upon any question in issue, either by the pleadings or the evidence, between said Paine and the townsite claimants. He also alleges an imposition practiced upon the secretary of the interior, by and through one Horace Speed, who he alleges was not an attorney in said cause, but who had a great personal influence with the secretary of the interior, and who filed a brief in said cause with the secretary of the interior, without having given notice to said Paine's attorney. He further alleges that the finding of the secretary was made from Speed's brief, and not from the evidence, and that the finding of the secretary that his homestead settlement was not made in good faith for agricultural purposes was error of law, for the reason that there was no evidence whatever in said record upon which to base said conclusion. And he asks that the court correct these mistakes, and award him the land, and decree that Foster, Robertson, and Schnell, as trustees, hold the legal title to said land in trust for his use and benefit, and that they be required to convey the land to him.

The petition is quite lengthy, and has attached to it, as proper exhibits, a copy of all the testimony taken in the land office in the hearing had before the honorable register and receiver; the order of the commissioner of the general land office, directing a hearing to be had; a copy of a decision of the register and receiver; a copy of the opinion rendered by the commissioner of the general land office, and also a copy of the decision rendered by the secretary of the interior; and several other documents pertaining to said original cause.

To the petition the defendants demurred upon five different grounds, to-wit: First, the court has no jurisdiction of the defendants; second, that the court has no jurisdiction of the subject-matter of the action; third, that there is a defect of parties defendant, in this: that the several lot owners and lot claimants in and to the southwest quarter of section 9, township 16, north of range 2 west, should be made parties defendant; fourth, that the complaint does not state facts sufficient to constitute a cause of action; fifth, that several causes of action are improperly joined.

On the 30th day of September, 1892, the district court sustained the demurrer to the complaint, to which the plaintiff excepted, and stood on his complaint; and the court rendered judgment against him, from which he now appeals.

The question presented to this court for consideration is whether or not the district court erred in sustaining the demurrer to plaintiff's petition. It is contended by the defendants in error that the conclusions and findings of the secretary of the interior on the questions of fact involved in the controversy are conclusive, and that a court of equity will not review the evidence in order to determine the correctness of such findings and conclusions. Upon the other hand, it is contended by the plaintiff in error: First, that a court of equity will review the evidence submitted to the secretary, in order to determine whether or not he has awarded the land to the person to whom, under the law, the same should go; secondly, that as it is alleged that the decision of the secretary, upon which he denied the plaintiff's right to enter the land in question, was favorable to him upon the question of his prior settlement, his residence, and improvements, and adverse to him upon only the one ground that he had not taken the land in good faith for homestead purposes, but for the purpose of speculation, and there being absolutely no evidence whatever in the record upon which said findings or conclusions could be based, in such a case the court will look into the evidence sufficiently to determine whether or not there was any evidence upon which said findings and conclusions could be based.

As to the first proposition, it would seem from some of the reported cases, that the court has reviewed the questions of fact involved therein, and passed upon the same; but a critical examination of such cases discloses the fact that the court reviewed only uncontroverted facts, in order to determine whether there had been a proper application of the law by the departmental officers. The courts have always, in proper cases, interceded to correct mistakes of law, and, without attempting to take from the department the right to determine controverted or disputed questions of fact, have, when two or more claimants to public lands based their claims upon certain given facts, upon which there was no substantial controversy, after title had passed to one of the parties, examined into such facts for the purpose of correcting errors of law committed by the officers of the land department, if any were found to exist; but it has not been the policy or practice of the courts generally to interfere with the findings or conclusions of the officers of the land department, made upon disputed or controverted questions of fact, either at law or in equity. There may be found some exceptions to this rule, but such exceptions are not sustained by the weight of authority.

In the case of Johnson v. Towsley, 13 Wall. 84, the question as to how far courts of equity have the power to inquire into and correct mistakes in judicial and executive action, when such action invades private rights, was before the supreme court of the United States for consideration. Mr. Justice Miller, speaking for the court, said:

"That the action of the land office in issuing a patent for any of the public lands subject to sale by preemption or otherwise is conclusive of the legal title, must be admitted, under the principle above stated; and in all courts, and in all forms of judicial proceedings, where this title must control, either by reason of the limited powers of the court, or the essential character of the proceeding, no inquiry can be permitted into the circumstances under which it was obtained. On the other hand, there has always existed in the courts of equity the power, in certain classes of cases, to inquire into and correct mistakes, injustice, and wrong in both judicial and executive action, however solemn the form which the result of that action may assume, when it invades private rights; and by virtue of this power the final judgments of courts of law have been annulled or modified, and patents and other important instruments issuing from the crown or other executive branch of the government have been corrected or declared void, or other relief granted. No reason is perceived why the action of the land office should constitute an exception to this principle."

Further, speaking of the class of actions in which the courts had reviewed the action of the department, it was said:

"Undoubtedly, there has been in all of them some special ground for the exercise of the equitable jurisdiction; for this court does not, and never has, asserted that all the matters passed upon by the land office are open to review in the courts. On the contrary, it is fully conceded that when those officers decide controverted questions of fact, in the absence of fraud or imposition or mistake, their decision on these questions is final, except as they may be reversed on appeal in that department. But we are not prepared to concede that when, in the application of the facts as found by them, they, by misconstruction of the law, take from a party that to which he has acquired a legal right under the sanction of those laws, the courts are without power to give any relief."

In the case of Shepley v. Cowan, 91 U.S. 330, which was a suit in equity to settle the conflicting claims of the parties arising from conflicting patents to the same tract of land, the court, speaking by Mr. Justice Field, said:

"If the matter were open for our consideration, we might perhaps doubt as to the sufficiency of the proofs presented by the heirs of Chartrand to the officers of the department to establish a right of pre-emption by virtue of the settlements and proceedings of their ancestor, or by virtue of their own settlement. Those proofs were, however, considered sufficient by the register of the local land office, by the commissioner of the general land office on appeal from the register, and by the secretary of the interior on appeal from the commissioner. There is no evidence of any fraud or imposition practiced upon them, or that they erred in the construction of the law applicable to the case. It is only contended that they erred in their deductions from the proofs presented; and for errors of that kind, where the parties interested had notice of the proceedings before the land department, and were permitted to contest the same, as in the present case, the courts can furnish no remedy. The officers of the land department are specially designated by law to receive, consider, and pass upon proofs presented with respect to settlements upon the public lands. If they err in the construction of the law applicable to any case, or if fraud is practiced upon them, or they themselves are chargeable with fraudulent practices, their rulings may be reviewed and annulled by the courts when a controversy arises between private parties founded upon their decisions; but for mere errors of judgment upon the weight of evidence in a contested case before them the only remedy is by appeal from one officer to another of the department, and, perhaps, under special circumstances, to the president. It may also be, and probably is, true that the courts may furnish, in proper cases, relief to a party, where new evidence is discovered, which, if possessed and presented at the time, would have changed the action of the land officers; but, except in such cases, the ruling of the department on disputed questions of fact, made in a contested case, must be taken, when that ruling is collaterally assailed, as conclusive. In this case, therefore, we cannot inquire into the correctness of the ruling of the land department upon the evidence presented of the settlement of Chartrand, the ancestor, or of his heirs."

In the case of Moore v. Robbins, 96 U.S. 530, Mr. Justice Miller, speaking for the court, said "that the decision of the officers of the land department, made within the scope of their authority, on quesions of this kind, is, in general, conclusive everywhere, except when reconsidered, by way of appeal, within that department, and that as to the facts upon which their decision is based, in the absence of fraud or mistake, that decision is conclusive even in courts of justice, when the title afterwards comes in question, but that in this class of cases, as in all others, there exists in the courts of equity the jurisdiction to correct mistakes, to relieve against frauds and impositions, and in cases where it is clear that those officers have, by mistake of the law, given to one man the land which on the undisputed facts belonged to another, to give appropriate relief." In this case it was held that the land department had misapplied the law, and had given to one man land which, on the undisputed facts, belonged to another.

In the case of Marquez v. Frisbie, 101 U.S. 473, which was a suit in equity, wherein it was claimed that the decision of the department of the interior against Marquez, and in favor of Frisbie, et al., to a certain quarter section of land, was erroneous, and praying a judgment of the court decreeing him to be its true owner, and his right to the legal title paramount.

Mr. Justice Miller quoted approvingly the principle announced in Moore v. Robbins, supra, and said further:

"The language of this court in Moore v. Robbins, cited above, is that equity will interfere when it is clear that these officers have, by mistake of the law, given to one man the land which on the undisputed facts, belonged to another. The meaning of this, and the sound principle, is, that where it is a mixed question of law and fact, and when the court cannot so separate them as to see clearly where the mistake of law is, the decision of the tribunal to which the law has confided the matter is conclusive; but if it can be made entirely plain to a court of equity that on facts about which there is no dispute, or no reasonable doubt, those officers have, by a mistake of law, deprived a man of his right, it will give relief."

Applying this rule to the case at bar, it would seem that the contention of counsel for plaintiff in error is correct; that is, that if there is no dispute or no reasonable doubt as to the allegation in plaintiff's complaint that there was no testimony whatever, or any evidence, from which it could be reasonably inferred that Paine did not, as found by the secretary of the interior, take the tract of land in dispute in good faith for homestead purposes, but for speculative purposes, a court of equity could and should grant him relief; but, on the other hand, under the same rule, if there is any evidence which tends, in any degree, however slight, to support the conclusions of the secretary as announced in his opinion, then such conclusions become final, and a court of equity will not interfere.

In the case of Vance v. Burbank, 101 U.S. 514, which was a suit in equity to determine the conflicting claims of the several parties to a tract of land obtained from the government, Mr. Chief Justice Waite delivered the opinion of the court, and, in discussing that portion of the case which seems to be applicable to the case at bar, said:

"So far as this suit depends on the original title of Lemuel Scott, it is clear, under the well settled rules of decision in this court, that there can be no recovery. The question in dispute is one of fact; that is to say, whether Scott, when he demanded his patent certified as against the other contesting claimants, has resided on and cultivated the land in dispute for four consecutive years, and had otherwise conformed to the requirements of the donation act. This was to be determined by the land department, and, as there was a contest, the contending parties were called on, in the usual way, to make their proofs. They appeared, and full opportunity was given Scott to be heard. He presented his evidence, and was beaten, and having taken the case through, by successive stages, on appeal, to the secretary of the interior, this, in the absence of fraud, is conclusive on all questions of fact. We have many times so decided. The appropriate officers of the land department have been constituted a special tribunal to decide such questions, and their decisions are final to the same extent that those of other judicial or quasi judicial tribunals are. It has also been settled that the fraud in respect to which relief will be granted in this class of cases must be such as has been practiced on the unsuccessful party, and prevented him from exhibiting his case fully to the department, so that it may properly be said there has been a decision in a real contest about the subject matter of inquiry. False testimony or forged documents, even, are not enough, if the disputed matter has actually been presented to, or considered by, the appropriate tribunal. The decision of the proper officers of the department is in the nature of a judicial determination of a matter in dispute."

In Quinby v. Conlan, 104 U.S. 420, which was an action for the possession of real estate, the defendant denied the allegation to the complaint, and set up by way of cross-complaint an equitable defense to the action, and alleged that he was the equitable owner of the premises, and that the plaintiff held the legal title for him, and asked for affirmative relief. In discussing the power of the officers of the land department over questions of fact affecting public lands, Mr. Justice Field, speaking for the court, said:

"But, independently of this conclusion, there is a general answer to the alleged erroneous rulings of the officers of the land department as grounds for the interference of the court. These rulings were upon mere matter of fact, or upon mixed questions of law and fact, which were properly cognizable and determinable by the officers of that department. The laws of the United States prescribe with particularity the manner in which portions of the public domain may be acquired by settlers. They require personal settlement upon the lands desired, and their inhabitation and improvement, and a declaration of the settler's acts and purposes to be made in the proper office of the district within a limited time after the public surveys are extended over the lands. By them a land department has been created, to supervise all the various steps required for the acquisition of the title of the government. Its officers are required to receive, consider, and pass upon the proofs furnished as to the alleged settlements upon the lands, and their improvements, when pre-emption rights are claimed, and, in case of conflicting claim to the same tract, to hear the contesting parties. The proofs offered in compliance with the law are to be presented, in the first instance, to the officers of the district where the land is situated; and from their decision an appeal lies to the commissioner of the general land office, and from him to the secretary of the interior. For mere errors of judgment as to the weight of evidence on these subjects by any of the subordinate officers, the only remedy is by an appeal to his superior of the department. The courts cannot exercise any direct appellate jurisdiction over the rulings of those officers, or of their superiors in the department, in such matters; nor can they reverse or correct them in a collateral proceeding between private parties. In this case the allegation that false and fraudulent representations as to the settlement of the plaintiff were made to the officers of the land department is negatived by the finding of the court. It would lead to endless litigation, and be fruitful of evil, if a supervisory power were vested in the courts over the action of the numerous officers of the land department on mere questions of fact presented for their determination. It is only when those officers have misconstrued the law applicable to the case as established before the department, and thus have denied to parties rights which upon a correct construction would have been conceded to them, or where misrepresentation and fraud have been practiced, necessarily affecting their judgment, that the courts can, in a proper proceeding, interfere, and refuse to give effect to the action. On this subject we have repeatedly, and with emphasis, expressed our opinion, and the matter should be deemed settled. And we may also add, in this connection, that the misconstruction of the law by the officers of the department which will authorize the interference of the court must be clearly manifest, and not alleged upon a possible finding of the facts, from the evidence, different from that reached by them. And, where fraud and misrepresentations are relied upon as grounds of interference by the court, they should be stated with such fullness and particularity as to show that they must necessarily have affected the action of the officers of the department. Mere general allegations of fraud and misrepresentations will not suffice."

In the case of Steel v. Smelting Co., 106 U.S. 447, 1 Sup. Ct. 389, Mr. Justice Field very appropriately said:

"We have so often had occasion to speak of the land department, the object of its creation, and the powers it possesses in the alienation, by patent, of portions of public lands, that it creates an unpleasant surprise to find that counsel, in discussing the effect to be given to the action of that department, overlooked our decisions on the subject. That department, as we have repeatedly said, was established to supervise the various proceedings whereby a conveyance of the title from the United States to portions of the public domain is obtained, and to see that the requirements of different acts of congress are fully complied with. Necessarily, therefore, it must consider and pass upon the qualifications of the applicant, the acts he has performed to secure the title, the nature of the land, and whether it is of the class which is open for sale. Its judgment upon these matters is that of a special tribunal, and is unassailable, except by direct proceedings for its annulment or limitation. Such has been the uniform language of this court in repeated decisions."

In Baldwin v. Starks, 107, U.S. 463, 2 Sup. Ct 473, the supreme court of the state of Nebraska had reviewed the evidence upon which the commissioner of the land office and the secretary of the interior had decided certain conflicting claims to a tract of land, and had reversed their decision on the evidence. In reviewing this action, Mr. Justice Miller, speaking for the court said:

"That record shows that upon all the questions involved the department decided in favor of Starks, except one, which was that he was disqualified to make the preemption claim he was then prosecuting, by reason of having previously exercised that right in regard to other lands. Whether he had thus made a filing of a former declaratory statement was a question of fact much contested before the department, in regard to which Starks himself was sworn, as were also several other witnesses, and the record of the alleged filing was also produced. On all this evidence the commissioner of the general land office decided that he had filed the previous declaration, and was therefore disqualified as a pre-emptor of the land now in controversy. On appeal to the secretary of the interior, this decision was affirmed, and Starks' claim was rejected, and Van Pelt's allowed, and the patent issued to him. The supreme court of Nebraska holds that the land department decided this question of fact erroneously, and that Starks never filed or made the former declaratory statement, that he was a qualified pre-emptor for the land patented to Van Pelt, and decrees a conveyance to him by Baldwin of the legal title vested by the patent. It has been so repeatedly decided in this court, in cases of this character, that the land department is the tribunal appointed by congress to decide questions like this, and when finally decided by the officers of that department the decision is conclusive everywhere else as regards all questions of fact, that it is useless to consider the point further. Where fraud or imposition has been practiced on the party interested, or on the officers of the law, or where these latter have clearly mistaken the law of the case, as applicable to the facts courts of equity may give relief; but they are not authorized to reexamine into a mere question of fact, dependent on conflicting evidence, and to review the weight which those officers attached to such evidence."

In Bohall v. Dilla, 114, U.S. 47, 5 Sup. Ct. 782, which was an action to recover the possession of real estate, in which the defendant set up, by way of cross-complaint, that he was the equitable owner of the premises, and the plaintiff held the title in trust for him, and asked that he be required to convey the same to him, Mr. Justice Field said:

"To charge the holder of the legal title to lands under a patent of the United States as a trustee of another, and to compel him to transfer the title, the claimant must present such a case as will show that he himself was entitled to the patent from the government, and that, in consequence of erroneous rulings of the officers of the land department upon the law applicable to the facts found, it was refused to him. It is not sufficient to show that there may have been error in adjudging the title to the patentee. It must appear that by the law, properly administered, the title should have been awarded to the claimant."

In Lee v. Johnson, 116 U.S. 48, 6 Sup. Ct. 249, which was a suit in equity to have the holder of a patent of public land declared a trustee for the benefit of the plaintiff, on the ground that the patent was improperly issued, Mr. Justice Field said:

"The defendant in the court below, (the plaintiff in error here,) is the holder of a patent of the United States for a parcel of land in Michigan, issued to him under the homestead laws; and the present suit was brought to charge him as trustee of the property, and compel a conveyance to the plaintiff. The patent having been issued by officers of the land department, to whose supervision and control are entrusted the various proceedings required for the alienation of public lands, all reasonable presumptions are indulged in support of their action. It cannot be attacked collaterally, but only by direct proceedings instituted by the government, or by the parties acting in its name and by its authority. If, however, those officers mistake the law applicable to the facts, or misconstrue the statutes, and issue a patent to one not entitled to it, the party wronged can resort to a court of equity to correct the mistake, and compel the transfer of the legal title to him, as the true owner. The court in such a case merely directs that to be done which those officers would have done if no error of law had been committed. The court does not interfere with the title of a pantentee, when the alleged mistake relates to a matter of fact, concerning which those officers may have drawn wrong conclusions from the testimony. A judicial inquiry as to the correctness of such conclusions would encroach upon a jurisdiction which congress has devolved exclusively upon the department. It is only when fraud and imposition have prevented the unsuccessful party in a contest from fully presenting his case, or the officers from fully considering it, that a court will look into the evidence. It is not enough, however, that fraud and imposition have been practiced upon the department, or that false testimony or fraudulent documents have been presented. It must appear that they affected its determination, which otherwise would have been in favor of the plaintiff. He must in all cases show that, but for the error or fraud or imposition of which he complains, he would be entitled to the patent. It is not enough to show that it should not have been issued to the patentee. It is for the party whose rights are alleged to have been disregarded that relief is sought, not for the government, which can file its own bill when it desires the cancellation of a patent unadvisedly or wrongfully issued."

Again, in the same opinion, it is said:

"Without going into any detail of the evidence presented to the commissioner and the secretary of the interior, but taking the general statement of its nature which we have given, it is clear that their attention was drawn by it to the character of the settlement of Johnson, and that they considered whether his entry was made to acquire a home for himself, or for his son-in-law; whether his residence had been sufficiently personal and continuous to save and perfect any right, if in fact he had ever initiated any; and whether or not he had abandoned the land. The findings of the secretary upon any of these matters of fact cognizable by it has been expressly affirmed. * * To allow the conclusions of the secretary of the interior on questions of fact to be subjected to review in cases of this kind would open the door to endless litigation."

From the principles announced in the foregoing authorities, there would seem to be no question as to the rule that findings and conclusions upon controverted questions of fact properly before the officers of the land department for their consideration are final and conclusive.

As to the second contention of counsel for plaintiff in error, that upon their allegation that the record presented to the secretary of the interior contained no evidence whatever upon which a finding of fact could be based, or an inference of fact properly drawn, to the effect that Paine had not taken the tract in good faith for agricultural purposes, but for the purposes of speculation, there may be some room for doubt. While the case presented seems to be without precedent, yet, upon principle, it would seem that if the secretary of the interior should so far forget the obligations and important duties imposed upon him by his high office as to render a decision, involving valuable rights and important questions, without any evidence whatever to base such decision or conclusion upon, a court of equity, under a proper presentation of such matters, would have the power, and it would be its duty, to grant relief. Where such a case as is made by the allegations of the complaint in this case is presented to a court of equity, we see no good reason why the court should not so far review the record and testimony taken in the land office, and made a part of the complaint, as to determine whether or not such record contains any evidence whatever tending to support the findings and conclusions complained of, and, if such record should be found to contain no proof whatever tending to support the findings and conclusions of the secretary, that the court should grant such relief as the equities of the case might demand. But, as in the case under consideration, if an examination of the record should disclose the fact that any evidence was presented to the secretary, however slight, from which his findings or conclusions could be reasonably inferred, then the complaint would be insufficient to present a case for equitable relief, and it would not be error to sustain a demurrer to the same. That portion of the decision of the secretary of the interior which relates to the questions in this case is as follows:

"The Townsite company of East Guthrie made application to enter the west half of section 9, as a townsite, and Veeder B. Paine made application to enter the southwest quarter of section 9 as a homestead, and Xenophon Fitzgerald made application to enter the northwest quarter of said section 9 as a homestead. Your office rejected the application of the company, and awarded the land to Paine and Fitzgerald, and the townsite company appeal. Both Paine and Fitzgerald allege that they left the border line of Oklahoma Territory after 12 o'clock, noon, on April 22, 1889, and that they made settlement on their respective claims before settlement was made thereon by the townsite claimants. A great mass of conflicting testimony was taken on this point, but, after a careful consideration of the same, I am of the opinion that both Paine and Fitzgerald reached the respective tracts before any of the townsite claimants, who entered the Territory after 12 o'clock, noon, had settled upon said tracts; and the question arises, were these alleged homestead settlements made in good faith for the purposes contemplated in the homestead law, or were they made for speculative purposes? Counsel for the homestead claimants truly say: 'If Paine and Fitzgerald were prior in time of legitimate settlement, their right to the land in beyond discussion, and it is idle to plead matter of aggravation. If they were not the first among the lawful settlers, they have no right under their claims. This is the gist of the case.'

"It is unnecessary to discuss at length the purposes of the homestead law. They are too well known. For nearly thirty years, under the provisions of this act, thousands upon thousands of the best citizens of our land have established homes for themselves and their families on the public domain, have reclaimed and cultivated millions of acres, and the wealth and the power of the nation have been increased. The object of the law was to procure the settlement and development of the unappropriated agricultural lands of the country. For this reason, not only lands included within the limits of an incorporated town, but lands selected as the site of a city or town, were excluded from the operation of said law. It is true that in numerous instances the lands that were entered as homes for agricultural purposes have become the sites of large towns, but that did not change the fact that the lands were entered in good faith under the provisions of the law. The uniform practice of the land department has been to resist the efforts of those who have attempted, under said act, to obtain title to the public domain for other than agricultural purposes. In the case under consideration, we find that in the proclamation of the president of the United States issued March 23, 1889, one acre of the northwest quarter of section 9 had been reserved for government use and control, and by the order of the president, dated March 25, 1889, a land office was established at or near Guthrie, which was the railroad station located on section 8, adjoining the land in dispute. Every intelligent person is aware of the fact that for the last half century the establishment of a United States government land office was equivalent to the foundation of a town or city of greater or less magnitude. Wherever a spot was selected for a land office, that spot became the center of population — it became a town; and the land ceased to be in a condition where it could be used for agriculture, but it became valuable for townsite purposes. Of all the thousands of eager, active, intelligent men who had collected on the borders of Oklahoma prior to 12 o'clock, noon, on April 22, 1889, there was hardly one who was ignorant of the fact that a government land office had been established at Guthrie, and of the resulting fact that a town would be established there, and already predictions of its future greatness as the capital of the Territory had been indulged in. The waiting crowds knew all these facts, and they knew that the land in controversy must be used for the homes, the business, and the trade of the people who would compose the population of this coming town. It is true, there had been no reservation of the tract by the president for townsite purposes, but his official acts had given notice to the world of the fact that the lands would be used for purposes other than agricultural. Veeder B. Paine knew all these facts. The evidence shows that he was a man possessed of intelligence and energy. He planned ingeniously to reach this land before any one else who left the border at the hour designated to do so. Two of his friends left during the morning, for Guthrie, for the purpose of taking the train. The vehicle which carried them to this point also transported the camping outfit, provisions, an ax, and the coat of Paine. Another friend, who desired to go to Guthrie to take the train, started a little later, on horseback, over the road which would be traveled by Paine. It may be true that the departure of these men at this time was merely incidental — an accident of their ordinary business life. But, however this may be, their acts of kindness rendered assistance to their friend Paine. In the meantime Paine was on the border of the Territory, waiting for the moment to start. He was mounted on a fleet horse, possessed of great powers of endurance. When the signal was given, the waiting crowd, consisting of hundreds of people, started; and Paine, thus unencumbered by his camping outfit, provisions, coat, etc., so necessary to a person who was to make a settlement on the uninhabited plains, found that the confidence reposed in his horse had not been misplaced, for from the very start he took the lead, and was soon out of sight of all others. Soon after leaving the border, one of the saddle girths was broken, but the rider continued his rapid journey. He took no note of the many unappropriated tracts of agricultural lands over which he passed — tracts whereon he could have established a home as contemplated by the homestead law. He was only eager to reach the land in dispute. After riding about eight miles, he overtook the friend who had preceded him on horseback. He had dismounted, and his horse was standing by the roadside, eating grass. The friend saw the broken saddle girth, and suggested an exchange of horses, which suggestion was instantly accepted, and Paine pursued his journey to the desired tract, where one of his friends, who had preceded him on the wagon containing his effects, the ax, etc., was found; also, a piece of board, from which he made stakes with the ax, and drove them into the ground, marking thereon his name, and the fact that he claimed the same as his homestead. He blazed a tree situated on the land, and made a similar notation, and thus he made settlement on what he alleges was a tract he intended for his homestead under the provisions of the homestead law. It cannot be denied that the friends who entered the Territory prior to the hour fixed in the proclamation of the president rendered Paine valuable and material assistance. It is denied by both Paine and his friend that the exchange of horses was made in pursuance of any prior arrangement, but that it was only incidental, resulting from the breaking of the saddle girth; but no explanation is given why the friend was waiting by the roadside with a horse that had become at least partially rested, nor, if Paine's horse was still fresh, why horses were exchanged, instead of saddles. Whether previously intended or not, there was, in effect, a relay of horses; and this relay was made possible by one of his friends entering the Territory prior to the hour fixed by the proclamation. The assistance rendered by friends gave Paine an advantage over others, and this advantage was gained by unlawful means, inasmuch as the aid was rendered by parties who entered the Territory prior to 12 o'clock, noon. Taking the whole history of this case into consideration, I am unable to arrive at the conclusion that Paine, either in the conception or execution of his settlement on his land, acted in good faith, as a bona fide claimant under the homestead law; and, in the absence of good faith, no claim can be recognized. All the facts indicate that the claim was taken for speculative purposes only — to enable him to dispose of this land for townsite purposes — and that it was not taken for agricultural purposes, and for the purpose of a home, or at least for a home as contemplated by the homestead law. Paine asserts that he was aware on the morning of April 22, that the land office was to be placed on section 8; that is, a few hundred feet from the acre reserved in the president's proclamation for government use. But this incident in no way changed the fact as to the location of the townsite, and Paine, as an intelligent man, knew that such was the case.

"Counsel cite the decision of my predecessor in the case ofPlummer v. Jackman, 10 Copp. Landowner, 71, and quote the following remarks: 'The statute cannot be construed to mean that persons going to the frontiers, or along the lines of projected railways, and anticipating centers of population, shall not enjoy the benefits of their enterprise and foresight, though they believe that their claims would become of great value on account of their proximity to cities and villages, or that villages or cities would even be built upon such claims, and thereby enable them ultimately to realize large prices for such lands.' No rule could be more just, as applied in the case then under consideration, and in similar cases. But how different the facts in the case cited, and the one now under consideration! In the former the claimant had travelled for hundreds of miles across an uninhabited prairie, far in advance of settlements and civilization, and selected a tract of wild land for settlement and cultivation. He may have anticipated that at some future day a railroad might cross a great river in that vicinity, and that a town might be established there in the years to come, but it was all uncertainty. Even the building of the road was not an assured fact, and the selection of a point for the crossing of the river was an unsolved problem. On the other hand, in the present case the location of the town was an assured fact, of which Paine was aware long before he started on his rapid, but short journey to reach the designated tract. He found the people with him, actuated by the same impulse, rushing for the same point, for the express purpose of occupying it for trade, commerce, and the upbuilding of a city. There could have been no uncertainty in his mind as to its immediate occupation for these purposes. The claim of Paine must be rejected, on the theory that he seeks to make his entry for speculative purposes — makes it in order that he may sell it to townsite occupants, on account of its being occupied for purposes of trade and commerce. I cannot assent to the doctrine that one who, in the manner here indicated, reached this tract a few minutes in advance of his fellows, shall be permitted to hold the advantage he has thus gained, and speculate off, and enrich himself from their misfortune, in being less fleet than he; and especially so when I am firmly convinced that he had been planning and arranging for days how he might reach this townsite in advance of the people contemplating locating thereon, and enter it as a homestead, and then sell it to them at his own price. The land in controversy is now covered with lasting and valuable improvements, worth many thousands of dollars, and is occupied by an intelligent and thriving community, which located there, in part, within a few minutes after the arrival of Messrs. Paine and Fitzgerald; and, to my mind, it would be a very harsh, unjust and inequitable ruling, to hold that because they reached this townsite first, if they did, that they own it. They knew it was to be a townsite; they started for it as a townsite, with the intent to hold the land for that purpose, under the guise of a homestead; and now they must hold it, in common with the other inhabitants thereof, as a townsite, without levying tribute upon them for the lots which they do not own. Under all the facts and circumstances surrounding their going upon the land in controversy, they have no rights which are greater or more sacred, or which are entitled to other protection, than the rights of those who, in common with them, and with the same intent and purpose, started with them to settle upon these lands for townsite purposes. Holding these views, which the record forces me to entertain, I am unable to concur in your decision that either Paine or Fitzgerald made a bona fide settlement in good faith under the homestead law; and your decision, allowing their application to enter, is reversed."

It is contended by counsel for plaintiff in error that the question of the good faith of Paine, or as to whether he had taken the land for speculative purposes, was not in issue in the contest proceedings, and was not properly before the secretary, and that the secretary had no authority to pass upon and determine said question on the pleadings and evidence before him. The question of good faith is always involved in the initiation of a right to, or acquirement of title to, public lands, whether such right be initiated by settlement or by homestead entry. One who seeks to acquire a right to public lands under the homestead laws must initiate that right either by settlement upon the lands, or by making his entry at the land office. Either step must be taken in good faith for the purpose of acquiring title to the land for a home, and for agricultural purposes. His good faith is a proper subject for inquiry and for determination in each step required to be taken by him in perfecting his rights or acquiring title. It is always in issue. This evidence of good faith, which gives vitality and validity to the homestead entry or settlement, is to be determined from the acts of the entryman prior to, at the time, and subsequent to his settlement or entry. All the circumstances connected with the initiation of his right; the condition of the land at the time; its surroundings; its relation to other tracts used for agricultural or townsite purposes; its proximity to a townsite, or to those factors which would necessarily constitute the center of a settlement of those seeking to select lands for townsite purposes, and the probability of its being required for townsite purposes; his knowledge of the land and its surroundings prior to the initiation of his claim to the same; his manner of initiating his right; his prior preparation, and subsequent conduct; the fact of his having received or accepted aid or assistance from those who may have entered the Territory before the time prescribed in the proclamation; his use of the land, and conduct toward adverse claimants; the adaptability of the tract for agricultural purposes, as compared with other tracts that he may have passed over in reaching the same; its location, as relating to government reservations and the United States land office; its location with reference to railroads and railroad stations — are all proper matters to be considered in determining the purpose of the party in making his settlement, and in determining his good faith. The secretary had these questions before him, and, under the law, had the right to pass upon his bona fides, without having the same presented to him by formal pleadings.

This question was settled in the case of Lee v. Johnson,116 U.S. 48, 6 Sup. Ct. 249, in which case it was said:

"The supreme court of Michigan held the decision of the secretary of the interior inconclusive, because it was not upon a point in issue between the contestants, stating that the question was that of abandonment, which only was inquired into by the register, or could be considered on appeal; that the jurisdiction of the secretary, if he disposed of the case finally on other grounds, was not appellate, but original, and that this had not been conferred; that the register, on the hearing, and the commissioner, on appeal, had decided that the plaintiff had not abandoned the land, and upon that ground there was no reversal of the decision. It therefore held that the plaintiff was entitled to the relief prayed. * * While there are no formal pleadings in such cases, it is undoubtedly true, as a general rule, that in contested matters before the land department, as in those before the courts, the decision should be confined to the questions raised by the allegations of the respective parties; but this rule has its exceptions. If in any case it appears from the evidence that the claim of the complaining or moving party is against public policy or the law, so that in no event could he recover a final judgment or decision, whatever be the nature or extent of the testimony upon the point at issue, the tribunal should not hesitate to dismiss the suit or the proceeding. * * So, in the present case, the secretary of the interior came to the conclusion, from the evidence returned by the register, that Johnson must be considered, not as a bona fide homestead claimant, acting in good faith, but as one seeking, by a seeming compliance with the forms of law, to obtain a tract of land for his son-in-law, who had previously exhausted his homestead privileges; observing that the element of good faith is the essential foundation of all valid claims under the homestead law. Under these circumstances, so far from having exceeded his jurisdiction, in directing a cancellation of the entry, he was exercising only that just supervision which the law vests in him over all proceedings instituted to acquire portions of the public lands. Upon the testimony, the question of abandonment could be of no consequence, as no right in Johnson's favor had been initiated. Upon an application for rehearing, the secretary reiterated his judgment; stating that he was unable, upon the testimony of Johnson himself, to arrive at the conclusion that he had complied with the provisions of the homestead law to an extent to entitle him to its benefits."

A similar question was before the supreme court of the United States in the case of Knight v. Association, 142 U.S. 161, 12 Sup. Ct. 258, wherein it was contended that the commissioner of the general land office having approved and confirmed a survey of the public lands, the power became exhausted, and that the secretary of the interior had no authority to set aside the order of the commissioner in view of the fact that no appeal was taken from such order, and that the same was not properly before the secretary. The court, after referring to the various statutes prescribing the duties of the commissioner of the general land office and of the secretary of the interior in relation to public lands, held that the secretary had the power to reverse and review or revise any of the findings of the commissioner of the general land office, or inferior officers, whether the same came to him by appeal or on review, or whether he took the matter upon his own motion; and the court said:

"It makes no difference whether the appeal is in regular form, according to the established rules of the department, or whether the secretary, on his own motion, knowing that injustice is about to be done by some action of the commissioner, takes up the case, and disposes of it in accordance with law and justice. The secretary is the guardian of the people of the United States over the public land. The obligations of his oath of office oblige him to see that the law is carried out, and that none of the public domain is wasted, or disposed of to a party not entitled to it. He represents the government, which is a party in interest in every case involving the surveying and disposal of the public lands."

The secretary of the interior, in 5 Land Dec. Dep. Int. 494, said: "The statutes, in placing the whole business of the department under the supervision of the secretary, invest him with authority to review, reverse, amend, annul, or affirm all proceedings in the department having for their ultimate object to secure the alienation of any portion of the public lands, or the adjustment of private claims to lands, with a just regard to the rights of the public and of private parties. Such supervision may be exercised by direct orders, or by review on appeal. The mode in which the supervision shall be exercised, in the absence of statutory direction, may be prescribed by such rules and regulations as the secretary may adopt. When proceedings affecting titles to lands are before the department the power of supervision may be exercised by the secretary, whether these proceedings are called to his attention by formal notice or appeal. It is sufficient that they are brought to his notice." This decision was quoted with approval in the case of Knight v. Association,supra.

It has long been the practice in the interior department, as is shown by the adjudicated cases, to determine the good faith of applicants for public lands, upon any evidence before the officers of the department, where such evidence disclosed a state of facts which would defeat the right of the claimant, although such question may not have been directly in issue in any contest proceeding. As we understand the decision of the secretary of the interior, as set forth in the exhibit to the complaint, he denies the right of Paine to make homestead entry for the tract in dispute, for the reason that he did not take the land in good faith for homestead purposes, but with the intention of holding the same under the guise of a homestead, knowing that it would be required for a townsite, and that he might speculate off of the townsite settlers. The conclusion is stated by the secretary of the interior, that he is convinced from the evidence that Paine did not take the tract in good faith for homestead purposes, as contemplated by the homestead law. If Paine did not take the land in good faith for homestead purposes, it was then immaterial for what purpose he did take it. Hence, the controlling question in this case is: Was Paine acting in good faith in initiating his settlement, and attempting to acquire title to the land in good faith for homestead purposes? The secretary found, as a matter of fact, that he did not take the same in good faith; and the complaint alleges that there is no testimony in the record, and there was no evidence or fact whatever before the secretary, upon which to base such conclusion, and that it was therefore error of law for him to so decide. In order to determine whether or not this allegation of the complaint is well taken, it is necessary for us to review all the evidence taken in the case before the land department, and which is made a part of the complaint by exhibit. If there is any evidence, however slight, tending to sustain this finding, then such conclusion becomes conclusive. The court cannot weigh the evidence, or encroach upon the judgment of the land officers in determining controverted matters of fact. The secretary had the right to find any facts to be proven which might reasonably and rationally be inferred from the facts and circumstances detailed in evidence; and if we find any facts or circumstances, appearing as evidence, or connected with the case, upon which such inference could be reasonably based, then such inference is conclusive and final. The finding of the secretary that Paine did not take the land in good faith for a homestead is an inference of fact; and, before we can ignore that inference, we must find that it is an unreasonable or irrational inference, and one which could in no event be properly drawn from, or based upon the testimony and circumstances disclosed in the record. From the mass of testimony accompanying the petition, it appears that there was testimony tending to show that, prior to the opening of the Oklahoma country, Paine was in Guthrie, a station on the Atchison, Topeka Santa Fe railroad, where the town of Guthrie is now located, and made a casual examination of the country and its surroundings; that he prepared a drawing or sketch of the lands in the vicinity of the depot, and particularly marked the quarter section in dispute on his plat or sketch; that the depot and railroad were located upon the east half of section 8, and on low or bottom lands, which were broken and traversed by a stream; that the tract in controversy lies less than one-half mile from the depot, and was mostly elevated prairie land, and better adapted for a townsite than the land in the immediate vicinity of the railroad and the station; that Paine had crossed the tract of land prior to the opening of the country for settlement, and was familiar with the surroundings; that, by an executive order, one acre of the tract in controversy had been reserved for government use, and a land office had been located on the tract west of the one in controversy, and but a short distance from it, which was known to Paine prior to the time that he started into the country to make his settlement; that the tract was well adapted for townsite purposes, and was not as eligible for agricultural purposes as some other lands in the vicinity; that Paine was employed at the stock ranch in the Iowa reservation, east of the Oklahoma country, for some time prior to the opening of the Oklahoma country to settlement; that immediately prior to the 22nd day of April, 1889, he, together with two other friends, neither of whom intended taking any lands in the Oklahoma country, went to the east line of the Oklahoma country, and camped there on the night prior to the 22nd; that on the morning of the 22nd, Paine located the meridian line, and prepared to make a ride into the Oklahoma country for the purpose of taking land; that he had a fleet saddle horse, upon which he expected to make the run; that on the morning of the 22nd, prior to the hour of noon, two of his friends, who had accompanied him to the line, drove into the Oklahoma country on a buckboard drawn by two horses, and carried with them Paine's bedding, his wagon sheet, his coat, some cooking utensils, and an ax; that shortly afterwards, and prior to the hour of noon, his other friend rode into the Oklahoma country, going to Guthrie, along the road that Payne expected to travel; that at the hour of noon Paine started for Guthrie, traveling at as rapid a rate as he could under the circumstances; that after traveling a short distance his saddle girth broke, and he was unable to fix it; that he traveled on ahead of the crowd who had started with him at the line, and, after traveling some eight miles, he saw in advance of him his friend by the roadside, dismounted, and his horse grazing; that he rode up to his friend, and his friend proposed to exchange horses, and he accepted the proposition, mounted his friend's horse, and rode on to the tract in dispute; that when he arrived there he found one of the friends who had preceded him, on the tract in dispute, with the buckboard and team and camping outfit, and he used the same for the purpose of making his settlement and establishing his residence on the land in controversy; that at the time he arrived on the land there were persons staking out town lots, and claiming the same for a town-site; that shortly after his arrival other persons arrived upon the tract, and began staking out town lots, and asserting claims to the same as townsite occupants and settlers; that persons continued to arrive and stake out lots, survey and plat the tract, and to make improvements thereon, until the entire tract, within a short time, became occupied for townsite purposes; that one of Paine's friends assisted him in making his marks of settlement, remained with him and slept with him for a few nights, and, during the time he remained, became one of the selected officers of the townsite claimants; that Paine had in view, at the time he left the line, the particular tract in controversy, and started to it with the intention of making his settlement upon said tract. It is true that some of this testimony is controverted, but we are not permitted to determine its weight, or to pass upon controverted questions. Under this evidence, and the facts which were a matter of common notoriety, and those matters which were a part of the common history of the times, and which were generally known to all, and upon the mass of testimony submitted to the secretary, he found that Paine had in fact used a relay of horses in going into the country; that by reason of his friends going in ahead of time, and carrying his bedding and luggage, he had been relieved from carrying with him on the road those articles which were necessary for him to use in making his settlement and establishing his residence, and that he had received aid and assistance from those who had gone into the country ahead of the designated hour; that he had knowledge of facts from which any intelligent person would know that a town of considerable proportions would be immediately established upon the lands adjacent to the land office which had been located in that district. And from these facts and circumstances the secretary inferred and found as a fact, that Paine was not acting in good faith, and had not in good faith taken said land for a homestead. We are unable to say that there is no basis for this conclusion. If we were passing upon the weight of the testimony, or were permitted to review the evidence for the purpose of determining the question of fact, we might, as was said by the supreme court of the United States in the case ofShepley v. Cowan, 91 U.S. 330, perhaps doubt as to the sufficiency of the proofs presented. Those facts were, however, considered sufficient by the secretary of the interior upon which to base his conclusion, and the question is not open for our consideration. We cannot say that the conclusion or inference is unreasonable, or that it is irrational. On the contrary, we are of the opinion, after a careful examination of all the testimony submitted, that there is some evidence upon which to base the secretary's conclusion, and that it is based upon facts and testimony submitted in the contest proceedings, and upon which he had a right to act, and having exercised his prerogative of passing upon said testimony, and having based his findings and decision upon some evidence, we are not permitted to interfere with such finding. Having come to the conclusion that there were facts and circumstances contained in the record upon which the conclusion and finding of the secretary might be based, it follows that the complaint did not state such facts as would justify a court of equity in interfering with the decision of the secretary.

It is next contended by counsel for plaintiff in error that the demurrer should have been overruled for the reason that the complaint alleges that the secretary of the interior was imposed upon by Horace Speed, who was then United States attorney for the Territory of Oklahoma, and who submitted a brief in said case on behalf of the townsite claimants, of the filing of which brief they received no notice, and which misled the secretary, and caused him to make findings of fact which were not justified by the evidence in the case. There might be some weight in this contention, were it not for the further fact that the complaint contains the further allegation that the plaintiff in error filed a motion for review before the secretary of the interior, which motion was by the secretary considered and overruled. The imposition referred to in the authorities, which authorizes a court of equity to interfere, imports deceit or fraud. It means that an officer has been misled, and the opposite party injuriously affected, by some deceitful or fraudulent conduct on the part of the party practicing the imposition. The only contention in the complaint is that the secretary was misled by reason of the fact that the brief was filed without any notice to the adverse party. All the questions involved in the opinion of the secretary, and necessarily the effect of Mr. Speed's brief, were passed upon in the motion for review; and, if it could be consistently claimed that the secretary was misled in the first instance by such brief, there could be no basis for such claim after plaintiff had ample opportunity to meet the same in his application for review. In order to furnish a sufficient basis for a court of equity to interfere with a judgment of a court, or a decision of an executive officer, when acting within the scope of his authority, upon the ground of imposition, it must be clearly apparent from the allegations of the complaint that the court or officer was actually misled by the conduct of the party practicing the imposition, and that a decision or judgment was rendered different from what it would have been in the absence of such imposition. And where fraud, imposition, and misrepresentations are relied upon as grounds for interference by the court, they should be stated with such fullness and particularity as to show beyond question that they must necessarily have affected the action of the officers of the department. The allegations must be so certain, and the frauds or misrepresentations alleged of such a character, as to make it apparent to the court that they did, actually and in fact, mislead the officer. General allegations of fraud, misrepresentations, or imposition are not sufficient. All reasonable presumptions are in favor of the regularity of the decision, and that the officers were not misled or influenced by any conduct of the prevailing party. It cannot be presumed that any fraud, misrepresentation, or imposition would control the action of the secretary of the interior in determining the rights of adverse parties to public lands, when such alleged fraud and imposition were brought to his knowledge prior to a final decision of the case. SeeQuinby v. Conlan, 104 U.S. 420; U.S. v. Atherton, 102 U.S. 372.

Another cause set forth in the demurrer to the complaint is that there is a defect of parties defendant. In our judgment, this objection is well taken, and the demurrer was properly sustained. It is apparent from the complaint in this case: That the contest over this land was by certain homestead claimants, upon one side, and claimants for townsite purposes, on the other. The secretary of the interior finally decided said contest in favor of the townsite claimants, and appointed the defendants in this case a board of townsite trustees, under the provisions of the act of congress of May 14, 1890, to make entry of said tract, together with other lands, for the use and benefit of the several occupants thereof, for purposes of trade and business. That said trustees did enter said tract. And that the patent from the United States, conveying said tract to them for such purpose, has been issued and delivered. By the provisions of the law under which they held the fee to said land, they have no interest therein. They are not vested with the power to dispose of said lands, except in the manner prescribed by law, and for the purpose of the trust created by statute. They are officers appointed under the act of congress for the purpose of more conveniently determining who are the beneficiaries of said trust, and of passing the title from the United States to such beneficiaries. They might make default in a case of this character, and thus destroy the rights of the real parties in interest.

In McDaid v. Oklahoma, 14 Sup. Ct. 59, Mr. Chief Justice Fuller, speaking for the supreme court of the United States, said: "As a matter of convenience, the trustees were the instrumentality for the transmission of title in respect of lands disposed of to actual holders, while the secretary, notwithstanding the patent, was the medium as to surplus lands, which he could not be if the legal title had immediately passed to the trustees by the patent for the whole site." The effect of the decision in the above cited case was that the issuance of a patent to the townsite trustees appointed under the act of May 14, 1890, (26 Stat. 109,) was not a final disposal of the government's title and control, but a conveyance in trust, to be carried out by the trustees under the control of the secretary, and that, while the title was held in trust for the occupying claimants, it was also held in trust, sub modo, for the government, until the rightful claimants, and the undisposed of or surplus lands, were ascertained; and, until the trustees had conveyed, the title did not pass beyond the control of the executive department.

It is a well-settled rule in pleading that the real party in interest must always be made a party to the action. The decision of the secretary of the interior, which is attacked in this proceeding, and sought to be vacated, is not a decision in favor of the defendants in this case, but in favor of the opposite parties, claiming the lands for townsite purposes; and a court of equity should not attempt to determine their rights, or vacate a finding in their favor, until they shall have had an opportunity to be heard. The rule as to parties in equity pleadings is properly stated in Story, Eq. Pl. sec. 72:

"It is the constant aim of the courts of equity to do complete justice, by deciding upon and settling the rights of all persons interested in the subject-matter of the suit, so that the performance of the decree of the court may be perfectly safe to those who are compelled to obey it, and also that future litigation may be prevented. Hence the common expression, that 'courts of equity delight to do justice, and not by halves;' and, hence, also it is a general rule in equity that all persons materially interested, either legally, or beneficially, in the subject-matter of a suit, are to be made parties to it, either as plaintiffs or defendants, however numerous they may be, so that there may be a complete decree, which should bind them all."

And in section 149, speaking in relation to trustees, it is said:

"If trustees have not the power of absolute disposal, as in cases of trustees to convey to certain uses, the persons claiming the benefit of the trust must be made parties."

In this case the trustees have no power of absolute disposal, but are required to convey to certain persons, and to certain uses. Hence this case comes squarely within the rule prescribed by Story. The plaintiff having failed to make the occupants of the townsite on the tract of land in controversy parties to this proceeding, the demurrer for defect of parties defendant was properly sustained. I have examined the entire record with a considerable degree of care, owing to the valuable interests involved, and the importance of the case, both to the plaintiff and to those adversely interested; and I find no error in the action of the district court.

VEEDER B. PAINE v. JOHN FOSTER et al. (Filed November 7, 1899.) On petition for rehearing. Former opinion of Feb. 13, 1896, by Burford, J., adopted as modified.

Opinion of the court by

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Dissenting Opinion

While differing from the majority of the court in my views of the law which direct the final determination of this case, I yet agree with an exception with my associates upon the legal propositions laid down in eight of the ten heads comprising the syllabus of the opinion which has been adopted, in part, as the opinion of this court. The exception referred to is upon the proposition, that conclusions and inferences from facts, made by the secretary of the interior, are final and binding upon courts. The question of parties as treated in the original opinion was not passed upon by the court, and will be noticed briefly herein.

As has been suggested, the majority of the judges sitting at the first hearing did not control the opinion, by reason of the clause in the act of congress, which requires that three judges must concur to reverse the lower court. Having twice listened to a full presentation of the case by oral argument, carefully studied the briefs, examined the record evidence, and analyzed the cases cited by both parties as authorities, I am convinced that my view of the law which should and does govern the case, is in harmony with the decisions of the supreme court of the United States upon the principle involved, and I am forced to conclude that in passing upon this case, the real question at issue has been overlooked. The voluminous records, the long delays, the several changes in the personnel of the court, the multiplicity of questions raised, by counsel, may have tended to divert attention from the propositions of law which I regard as the essence of the case, and those upon which it should have been determined.

They may be briefly stated, as follows:

First. The conclusions and inferences made by a secretary of the interior from the facts found in a contested claim to a tract of public land, do not preclude a court of equity from reviewing and correcting the same, when in the opinion of the court, there has been a misapplication of the law to the facts which results in giving to one man the land which upon the undisputed facts should go, under the law, to another.

Second. Where all the facts found by the land department of the interior are, in a proper action, presented to a court of equity, it may take the facts so found, and apply the law to the facts, in its own way.

It was said in Johnson v. Towsley, 13 Wall. 64, that: "We are not prepared to conclude that when in the application of the facts as found by them, they, by misconstruction of the law, take from a party that to which he has acquired a legal right under the sanction of the laws, the courts are without power to give any relief."

And it was said in Shepley v. Cowan, 91 U.S. 330: "The officers of the land department are specially designated by law to pass upon proofs presented with respect to settlement upon the public lands. If they err in the construction of the law applicable to any case, their rulings may be reviewed and corrected by the courts when a controversy arises between parties, founded upon their decisions."

And in Moore v. Robbins, 96 U.S. 530, that: "As to facts upon which their decision is based, that decision is conclusive, even in courts of justice, when the title afterwards comes in question, but that, in this class of cases, as in all others, there exists in courts of equity the jurisdiction to correct mistakes, to relieve against frauds and impositions, and, in cases where it is clear that those officers have by a mistake of the law, given to one man the land which upon the undisputed facts belonged to another, to give appropriate relief."

And in Marquiz v. Frisbie, 101 U.S. 473, that: "If it can be made entirely plain to a court of equity that upon facts about which there is no dispute, or no reasonable doubt, those officers have by a mistake of the law, deprived a man of his rights, it will give relief."

And in Baldwin v. Stark, 107 U.S. 463: "Where the latter (the officers) have clearly mistaken the law of the case as applicable to the facts, equity may give relief."

And in Bohall v. Dillo, 114 U.S. 47, that: "In consequence of erroneous rulings of the officers of the land department upon the law applicable to the facts found, the right of the settler was denied him."

The case of Lee v. Johnson, 116 U.S. 48, was a case where the settlement was admitted to have been made for the benefit of another, contrary to the statutes, and upon this question as to whether residence had been sufficiently personal and continuous to preserve his right, if in fact, he had initiated any, and whether or not he had abandoned the land: "The finding of the secretary upon any of these matters of fact cognizable by it, has been expressly affirmed. * * If, however, these officers mistake the law applicable to the facts, or misconstrue statutes, and issue a patent to one not entitled to it, the party wronged can resort to a court of equity to correct the mistake, and compel the transfer of the legal title to him as the true owner."

In the opinions handed down in this case, no mention is made of this power of the court, and the argument, reasoning and citations have been made solely with a view to uphold the conclusiveness of findings of fact made by the secretary of the interior, and I find that in each case the facts in dispute were upon the questions of the settlement and improvement, and the facts about which cluster the only legitimate test of good faith. And this proposition has been made prominent in the opinions, to the exclusion of any consideration of the main and only contention of the plaintiff in error.

In his petition it is alleged that the conclusions and inferences made by the secretary of the interior are warranted neither by the evidence nor by the facts found; that some findings are unsupported by any evidence; and that, admitting all the facts as found to be the facts proven, they do not, under the law properly applied, support the conclusion reached by the secretary, nor warrant the "theory" upon which it is based.

In Quinby v. Conlan, 104 U.S. 420, it is said, that: "The laws of the United States prescribe with particularity the manner in which portions of the public do-may be acquired by settlers. * * They require personal settlement upon the lands desired, and their inhabitation and improvement, and a declaration of the settler's acts and purposes to be made at the proper office in the district within a limited time. * * By them a land department has been created to supervise all the various steps. They are required to receive, consider and pass upon proofs furnished as to the alleged settlements upon the land and their improvement. For mere errors of judgment, as to the weight of evidence on these subjects, the only remedy is by appeal to the superior of the department. It is only when those officers have misconstrued the law applicable to the case as established before the department, that the courts can, in a proper proceeding, interfere and refuse to give effect to the action."

Applying this rule to the case under consideration, it is to be observed that, after weighing the evidence on these subjects, as well as upon the subjects pertaining to homesteads in Oklahoma, the "superior of the department" found as a fact, that all the requirements mentioned in Quinby v. Conlan, supra, were complied with by plaintiff in error in settling on the land claimed by him, and this court should have decided this question: Do the facts, as established before the department, entitle plaintiff to the relief he seeks?

"A finding of fact by the land department that a homestead entryman has complied with the requirements of the law as to settlement and improvement is conclusive upon the courts." (N. Pac. R. Co. v. McCormick, 89 Fed. 689.)

It is, then, the law that the findings of fact upon the weight of disputed evidence are final. What facts were found in the present case? The record before the court shows the facts found by the commissioner of the general land office, in these words: "Veeder B. Paine, (the plaintiff in error,) was a qualified entryman and entered Oklahoma in a proper manner; made his selection in advance of the townsite claimants; performed all the acts of settlement possible under the circumstances; erected a home as soon as he could; improved and cultivated the land as far as practicable; offered his filing at the proper land office within the prescribed time, and has continued to live on his claim;" and concludes that: "His good faith is placed beyond controversy."

Since the "superior of the department" accepted these facts, did not reverse or change any of them, they are the undisputed facts, and the facts found to which the law must be applied.

Ignoring these facts, which compel a conclusion of good faith, the secretary proceeds to make inferences not in evidence, in the following manner:

"Every intelligent person is aware of the fact that for the last half century the establishment of a United States government land office was equivalent to the foundation of a town of greater or less magnitude; wherever a spot was selected for a land office that spot became the center of population, it became a town, and the land ceased to be in a condition where it could be used for purposes of agriculture. Of all the thousands of eager, active and intelligent men who had collected on the borders of Oklahoma prior to 12 o'clock, noon, on April 22, 1889, there was hardly one who was ignorant of the fact that a government land office had been established at Guthrie, and of the resulting fact that a town would be established there, and already predictions of its future greatness as the capital of the Territory, had been indulged in. The waiting crowds knew all the facts, and they knew that the land in controversy must be used for the homes, the business and the trade of the people who would compose the population of this coming town. * * Taking the whole history of this case into consideration, I am unable to arrive at the conclusion that Paine, either in the conception or execution of his settlement on this land, acted in good faith, as a bonafide claimant under the homestead law, and in the absence of good faith no claim can be recognized. All the facts indicate that the claim was taken for speculative purposes only, to enable him to dispose of this land for townsite purposes, and that it was not taken for agricultural purposes, and for the purpose of a home, or at least for a home as contemplated by the homestead law."

And concludes: "The claim of Paine must be rejected on the theory that he seeks to make this entry for speculative purposes, makes it in order that he may sell it to townsite occupants on account of its being occupied for purposes of trade and commerce."

At the hearing in the land office, it was sought to disqualify the homestead claimant on account of a supposed relay of horses placed along the route, and this, if established as a fact, would have disposed of the case. The undisputed evidence and the several decisions in the land department show that after riding about eight miles and when nearing the land in dispute, and well in advance of all those who left the line with him, none of whom were townsite seekers, he overtook a friend, one Jerome, of Michigan, who was on his way to take the south bound train at Guthrie station, which he did that same day. Upon riding up to him, Jerome noticed that the saddle girth was broken, and suggested to Paine that he ride his horse the short distance remaining. Paine did so, and Jerome, after fixing the saddle, rode into the station and over the claim in controversy, before any townsite settlers had come upon the land in dispute; the trail from the east to Guthrie station passing across this land. Concerning this incident, resulting from an unforeseen accident, the secretary does not find any prearrangement, and holds against the homestead claimant on the adjoining quarter section, who met with no accident on his ride over the same route, as follows:

"The remarks applicable to Paine, apply with equal force to Fitzgerald in the consideration of his claim to the northwest quarter of section 8. While the incidents connected with the trip of Paine did not take place in the trip of Fitzgerald, yet he possessed the same knowledge that the tract claimed by him would be used at once for townsite purposes."

The secretary also ruled that Paine, notwithstanding this incident, and others of which he speaks, might have lawfully settled upon the other lands over which he passed, and that he might successfully have held parcels of the quarter section in dispute "in common with other lot claimants." This he might not do if in any manner disqualified, by disobedience of the law and the proclamation of the president.

The commissioner having held Paine qualified to take the entire quarter section as a homestead, and the secretary having agreed that he might lawfully lay claim to a part, it appears that the theory of speculation attaches to this transaction only because of the fact, that soon after the homestead settler's rights attached, a considerable number of persons determined to go upon it, and divide it into lots and blocks. To other tracts adjoining the 320 acres, known as Guthrie proper, on the north and south, where no persistent townsite settlements were made, the theory of speculation did not attach, and homestead entry was permitted, although, if the secretary's reasoning is sound, and his conclusions are valid, these lands, being equally near to the government land office, equally "in the eyes of every intelligent person, became the center of population, it became a town, and the land ceased to be in a condition where it could be used for purposes of agriculture."

It cannot be denied that the secretary misapplied the law to facts in holding, as he did, that "the official acts of the president had given notice to all the world of the fact, that the lands, (referring to the half section adjoining Guthrie proper on the east,) would be used for purposes other than agriculture," "that Paine knew this," "that he started for this townsite." It was only by treating this land as a townsite, and not open to homestead settlement, that the prior homestead settler could be cut off, and to this ruling, that it was reserved by the acts of the president for townsite purposes, was attached the speculative theory. This was error of law, subject to review, and should have been reviewed and reversed by this court.

"Whether lands are within the limits, or subject to a grant for public improvements, is not a question of fact, within the rule that the judgment of the land department is final on the facts." (U.S. v. Coos Bay Wagon Co., 89 Fed. 151.)

Whether the land involved in this case was or was not within the limits reserved for townsite purposes, is then, a question of law. This land was not a townsite. The president had given no such notice by any official act or otherwise. On the contrary, it could not be used legally as a townsite, and the president and the acts of congress invited settlement thereon. The 320-acre limitation to townsites, should have controlled the disposition of this case in the interior department, and, failing there, this court should not have neglected to pass upon this vitally fundamental proposition which, although urged in brief and oral argument, has thus far not been treated of or met in the opinion of the court.

Under the act of congress of March 2, 1889, it is very clear that no more than 320 acres of land could be entered for townsite purposes at any one place. The interpretation of the act by the interior department, as promulgated by circular letter of instructions sent to registers and receivers before the opening, printed in 8 Lans. Ch. D. page 336, is as follows:

"Only 320 acres, one-half section of land, can be taken at one point, no matter what the number of inhabitants."

The petition alleges, the record shows and the demurrer admits, that Guthrie, the east half of section 8, was the 320 acres first selected and occupied as a townsite. By its selection and occupation, the maximum legal area limit was exhausted at this point, and all the rest of the public lands included in the proclamation of the president, including the quarter sections of land adjoining the 320 acres reserved for townsite purposes and including the quarter section claimed by the plaintiff [were open to homestead entry]. Immediately adjoining the townsite of Guthrie was the west half of section 9, which had been segregated from the public domain by acts of settlement, personal occupation and presence of qualified homesteaders, before any townsite seekers went upon it in pursuance of a plan to evade and circumvent the law of congress, by establishing so-called separate towns. That those who took forcible possession of the two homestead claims on the west half of section 9 were promoters of an unlawful scheme, by unlawful means and force, is shown by the record, and by the finding of fact by the secretary, as follows:

"The application filed April 26, 1889, by T. H. Soward, mayor, et al., to enter the west half of section 9, as the townsite of East Guthrie, having been made in the interest of men, many of whom entered the Territory prior to the time fixed by the proclamation of the president, in violation of the act opening the same, it must be rejected."

By reason of the filing of the application referred to, which was prior to the application of the homestead claimant only because it was taken into the land office through the mail, while the settler was forced to stand in line awaiting his turn, the homestead claimant's application to enter was rejected, and wrongfully rejected by the local land office, the townsite application having been received in violation of the instructions of the secretary.

The questions which were ordered to be inquired into at the hearing before the register and receiver, under the limitation clause of the act of congress, were (1) priority of settlement, (2) the qualifications of the homestead claimants to take land in Oklahoma, and (3) the status of the Guthrie townsite applications.

In his letter ordering the hearing, the commissioner of the land office said, that:

"I am inclined to believe that these applications include different portions of one and the same town. You will issue notice in accordance herewith, and require it to be served upon the adverse claimants to these two sections of land, the burden of proof being upon the former to show the alleged facts reserving the lands from disposal as homesteads."

As to the land claimed by plaintiff in error, such reservation was not shown. The only reservation is found in the erroneous conclusion of the secretary, that the acts of the president had "reserved" it for a townsite, by locating a government land office in the next section. It is my belief that every quarter section of land adjoining the half section which was alone "reserved" for townsite purposes, and the whole of the remainder of the public lands then opened, were, by the act of congress, open to settlement by homesteaders, and for homestead purposes only. Other acts provide for changing a homestead entry to a townsite entry, by the claimant, when found necessary or advisable, upon the payment to the government of $10 per acre. There was, therefore, no need for the effort to appropriate land dedicated to homestead entry alone, for settlement and appropriation as a townsite, without authority of law. Congress invited homeseekers to settle upon these lands lying adjacent to the half sections reserved for townsites. In accepting this invitation, they had a right to presume that the law would protect them in such settlement, and would prevent townsite claimants from encroaching upon their homesteads. I do not believe the proposition will ultimately be upheld, which attributes to the acceptance of such an offer a bad motive, or an unlawful or fraudulent intent; and, when as in this case, the theoretical conclusions and improper inferences from proper facts inflict a penalty in the nature of a confiscation of property rights, for doing an act which the law invites, a court of equity ought not to permit such a conclusion to stand.

It is found as a fact by the secretary, and conceded in the opinion of this court, that the homestead claimant, plaintiff in error, settled upon the land in controversy before any settlement was made thereon by townsite settlers. His taking the land solely for his own use and benefit; his continuous residence; his application to enter within the time prescribed; his declaration, made under oath, of his intent to take the land as a homestead; his qualifications to take land in Oklahoma, under the provision of the homestead law applicable thereto; his right to have applied to his acts of settlement, and to his subsequent acts of residence and improvement, the same tests of good faith common to other homestead claimants; all these are conceded. No pretense is made that any person other than himself was interested in the land, nor that any contract existed whereby any person might afterward lay claim to an interest therein, nor of any offer to sell or trade or dispose in any manner of any portion of the land to any person, yet, in support of his theory, the secretary says, without a particle of evidence to support it, in his opinion, 12 Lans. Ch. D. 658, that:

"All the facts indicate that the claim was taken for speculative purposes only, to enable him to dispose of this land for townsite purposes, and that it was not taken for agricultural purposes, and for the purpose of a home, or, at least, for a home as contemplated by the homestead law. The claim of Paine must be rejected on the theory that he seeks to make this entry for speculative purposes." * *

The departmental record evidence, with the different decisions in the case, having been properly presented to this court, we are possessed of all the evidence, and all the facts found, and after a careful study of these, I am constrained to say that I discover no facts, found by the secretary of the interior, which indicate bad faith, or any speculative or fraudulent intent on the part of the homestead claimant, the plaintiff in error, nor any fact or finding of fact which, with the law properly applied thereto, do not compel the conclusion that the land was "taken for the purpose of a home, such as is contemplated by the homestead law." I quite agree with the majority of this court in their ruling: "That if there is no dispute, or no reasonable doubt, as to the allegations in plaintiff's complaint, that there was no testimony whatever, or any evidence from which it could be reasonably inferred, that Paine did not, as found by the secretary of the interior, take the land for homestead purposes, but for speculative purposes, a court of equity could and should grant him relief." But, in the recital of the evidence indulged in by the court, which follows closely the secretary's language, there develops no evidence, "however slight," tending to show a fraudulent intent, or any unlawful purpose; nor any fact from which any legitimate inference can be made, or any reasonable doubt raised, or that gives rise to a suspicion that the claim was taken for any other purpose than is set forth in the settler's application to enter the land.

Failing to discover any evidence tending to a legitimate support of the theory of the secretary, or tending to cast a suspicion upon the intent, and much less leading to a necessary or legitimate inference of fraud, this court should, upon its declared view of the law, hold in accordance with its own convictions of the law applicable to the facts, and in harmony with the equities of the case. It was plainly a misconstruction of the law to hold that this land was reserved in effect from homestead settlement, for any reason. It was an erroneous conclusion, and one not to be followed, that the west half of section 9 "was a townsite," for which any one "could start," before any townsite settlers had even set up a claim thereto. Into this last mistake the secretary may have been led, by misapplying the law of May 14, 1890, to conditions arising under the act of March 2, 1889, this case being still under consideration in the department when the act of May 14, 1890, became the law. These errors under which this case was disposed of in the land office, should not be adopted or perpetuated as a part of the law of the land.

We are asked to apply the law to the facts. A court of equity has this power. It is conceded by my associates that, from the evidence, they would have reached a different conclusion, and there is no room for doubt, that to the facts found a different application of the law ought to have been made in the interior department.

It has been suggested that this case seems to be without a parallel, and I hold that it is one which calls for the exercise of that high prerogative of equity, so jealously preserved by the supreme court of the United States, in cases involving the acts of the interior department in the disposition of the public lands.

In Johnson v. Towsey, it was held, that:

"There has always existed in courts of equity, the power, in certain classes of cases, to inquire into and correct injustice and wrong in both judicial and executive action, * * no reason is perceived why the action of the land office should constitute an exception to this practice. * * And so, if for any reason, recognized by courts of equity as a ground for interference in such cases, the legal title has passed from the United States to one party, when in equity and good conscience, and by the laws which congress has made on the subject, it ought to have gone to another, a court of equity will convert him into a trustee of the true owner and compel him to convey the legal title."

I agree with the view, that when the entire record made in the land department is made a part of the complaint, the court may examine the evidence for the purpose of determining whether there is evidence to support the material findings of fact, but I see no reason for such examination if we decline to exercise the power to draw our own conclusions and inferences from the evidence, and thus determine judicially whether there was any testimony or any evidence from which "it could reasonably be inferred that Paine did not take the land as an actual bonafide homestead settler, and for a home as contemplated by the homestead law."

In Smelting Co. v. Kemp, 104 U.S. 636, it is held, that: "If in issuing a patent, its officers took mistaken views of the law, or drew erroneous conclusions from the evidence, or acted from imperfect views of his duty, or even from corrupt motives, a court of law can afford no remedy to the party alleging that he is hereby aggrieved. He must resort to a court of equity for relief."

And in Irwin v. Marshall, 20 How. 567, it is said, that: "Of the practice or the opinion of the officers of the land department, no evidence is exhibited upon this record. But, supposing this to be in accordance with the above suggestion, they could by no means, control the action or the opinion of this court in expounding the law with reference to the rights of litigants before them; and this they must do in accordance with their own convictions, uninfluenced by the opinions of any and every other department of the government."

However desirous the courts may be to sustain the interior department when the ends of justice may thus be served, they have ever carefully preserved the right to inquire into the proceedings of special tribunals, making no exception of the land department.

Thus, while it is true that congress has clothed the secretary of the interior with vast authority in the administration of the public business, yet his power is not absolute, nor above the law, and may not be exercised unjustly or arbitrarily. It is not needed to review the evidence in this case. The decision of the secretary, with its findings and conclusions, shows within itself that, to say the least, he acted upon inferences, instead of upon facts, and, as heretofore stated, the opinion of the court conceded that: "From the record, it seems clear that Paine settled on the land in controversy before any settlement was made by the townsite settlers, and, if this case were submitted to us on the evidence introduced before the land department, our conclusion as to the facts would probably be different from the findings of fact of the secretary of the interior."

And I entertain no doubt that they, with myself, are unable to understand why the conclusion was adverse to Paine, and that they are satisfied that an injustice has been done him, and that, in all equity and good conscience, he was entitled to patent to the land in question.

The failure in this case to distinguish between findings of act and inferences from the facts, has resulted in confusion. A court should not accept a "theory," or an inference made from the facts, by any special tribunal, in lieu of facts themselves, and the language of the secretary that: "All the facts indicate;" "I am unable to arrive at a conclusion;" "the claim must be rejected on the theory;" "I cannot assent to the doctrine," are not findings of fact, but are mere argumentative inferences, and are a mistaken application of the spirit and letter of the homestead law to the facts, and that they should be treated as such, I am supported by the ruling of the court in its definition of the thirty-first finding in the case of The Brittania,153 U.S. 141, in which the supreme court of the United States, by Mr. Justice Shiras, said:

"It cannot be reasonably held that the thirty-first finding was a finding obligatory on the court. It is in these words: 'The conduct of those in charge of the Beaconsfield, as specifically set forth in the foregoing finding, does not warrant the inference that there was on their part negligence contributory to produce the collision.' Of course if this were a finding of fact, within the meaning of the rule, it would be conclusive of the case, and all the other findings would be mere surplusage. But it is evident that the learned judge did not intend it to be so regarded. It was plainly meant as additional conclusion in law. He speaks of it as an 'inference from the foregoing findings.' Nor can we assent to the proposition that it is competent for the judge, who is to find the facts for this court, to shut us off from a consideration of the legal effect of the other facts found, by a conclusive finding that, in his opinion, a particular inference is or is not warranted by the facts so found. Regarding, therefore, this finding as merely expressive of the learned judge's view of the legal conclusion that arose upon the facts as found, and, giving reasonable effect to his findings of fact, we are unable to concur in his conclusion."

It is my opinion that the conclusion reached by the secretary, in effect that the conduct of Paine as specifically set forth in the foregoing findings of fact, warranted the inference that: "There was on his part a fraudulent intent to take land under the guise of a homestead and then sell it out to lot claimants at his own price," is not a finding of fact within the meaning of the rule, but is an inference from the facts, and does not shut us off from a consideration of the legal effect of the facts found.

The theory of speculation, complained of by plaintiff in error, seems to have been associated in this case, both by the, secretary of the interior and by the court, with the terms "bad faith," so often mentioned in the decisions of the land department; whereas, the desire to better his condition, which prompts every homeseeker to settle upon the tract of land in his judgment most desirable, and most likely to become valuable, is not akin to the question of good or bad faith.

Actual settlement, continuous residence, cultivation and non-alienation, — these facts were found in his favor, and the necessary conclusion, under the land law, was good faith. The principle is well stated in an early land decision by Lamar, secretary of the interior, afterwards on the supreme bench, in the case of Maria Good, reported in 5 Lans. Ch. D., that:

"The original homestead act of May 20, 1862, was entitled, 'An Act to Secure Homesteads to Actual Settlers on the Public Domain.' That act which is substantially embodied in the Revised Statutes, sec. 2289, et seq., prescribed certain pre-requisite qualifications which must exist in settlers under the law. If found to exist, then what? Actual continuous residence and cultivation must follow, and proof may be made that no part has been alienated. * * From the foregoing it seems clear that when once legal qualification to make homestead entry is established, and the land applied for is subject to such entry, then the only remaining questions for the land department to consider are those relative to residence, cultivation and alienation. * * It only remained for her to show compliance with positive requirements of the homestead law, which are conditions subsequent, in order to entitle her to a full legal title by patent."

The same secretary, reversing the commissioner, in 4 Lans. Ch. D. 287, said that: "It further appears from said proof that his residence and occupancy had been continuous, and that his family was with him on the land. On these facts he claims that he is entitled to a patent, under the law, and that your decision to the contrary is error. * * We have already seen that when appellant applied to commute, he proved an actual residence for six months — no bad faith can, therefore, be imputed."

The only test of good faith, as contemplated by the act of congress, was established by Secretary Teller, in Higgins v.Wells, 3 Lans. Ch. D. 22:

"The homestead law is a practical law, and is so devised that it may have a practical enforcement. The law itself provides its own evidences of good faith, in improvements, cultivation and residence; if these exist as facts, the law is satisfied. If the things done on the land are sufficient to warrant good faith, we must infer good faith; and we may not go off the land and find a fact elsewhere from which we may infer bad faith."

It is apparent that this rule was not followed in the present case; and that the secretary of the interior, in this case, went "off the land," and found a fact elsewhere from which he inferred bad faith and built a conclusion upon "theory" and inference.

By the term, "bona fide settler," is meant an actual settler. Upon this question of good faith, the rule, as said down by Teller and Lamar, supra, is the rule by which the good faith and intent of plaintiff in error must be tested. Its misapplication produced a result as unjust, and so manifestly against what the settler's acts and his oath show that he intended, as to force a conviction that there was a miscarriage of the law.

In Germania Iron Co. v. James, 89 Fed. 871, it is held, that:

"An application to enter land gives a vested right thereto. It is essential to the just and impartial exercise of the powers conferred upon the land department in disposing of the public lands, that it should adopt and steadily maintain rules and regulations governing the practice of making entries, and such rules when promulgated become a law of property, and cannot be ignored by the department to the subversion of rights acquired in accordance with their requirements."

In support of this view, I rely with confidence upon the opinion of the court as stated by Mr .Justice Brewer in Ard v.Brandon, 156 U.S. 537, that:

"In all such cases, the first in time in the commencement of proceedings for the acquirement of the title, when the same is regularly followed up, is deemed to be the first in right, within the authority of that case, citing Shepley v. Cowan,91 U.S. 330. We think the defendant has shown an equity prior to all the claims of the railroad company; he pursued the course of procedure prescribed by the statute; he made a formal application for the entry, and tendered the requisite fees, and the application and the fees were rejected by the officer charged with the duty of receiving them, and wrongfully rejected by him. Such wrongful rejection did not operate to deprive the defendant of his equitable rights, — the law deals tenderly with one who in good faith goes upon the public land with a View of making a home thereon. If he does all that the statute prescribes as the condition of acquiring rights, the law protects him in those rights. There can be no question of the good faith of the defendant. He went upon the land with a view of making it his home. He has occupied it ever since. He did all that was in his power in the first instance to secure the land as his homestead. That he failed was not his fault."

In Duluth Iron Range R. R. Co. v. Roy, 173 U.S. 587, the case of Ard v. Brandon, supra, is cited and approved.

The theory adopted in the present case, upon which the settler was deprived of his rights, is a theory of fraudulent intent to secure a parcel of government land with some unlawful design to, in some manner not pointed out, defraud the United States to its injury, in that, in parting with this quarter section of land, it should confer title to a homestead claimant, instead of disposing thereof at the same price per acre, if commuted, to a townsite claimant. The process of reasoning this plan to dispose of the homestead claimant was reaced by "theory" and inference, alone. There being no evidence, nor any fact or circumstance tending to contradict the affidavit required to be made by a homestead claimant, the rule applies to this case as laid down in Morris v. Talcott, 96 N.Y. 100: "Where there is no evidence legitimately tending to establish such a conclusion, and the natural inference to be drawn from the facts proved do not necessarily lead to the presumption of a fraudulent intent, a question of law is presented for the judgment of the court."

Fraudulent intent has been presumed, not from anything the plaintiff is claimed to have done, but for something the secretary thought he might do, and owing to a secret purpose, imagined by the secretary to have a lodgement in the mind of this homestead settler, whereby he might, after, if he should acquire a right to do so, dispose of the land to a considerable pecuniary advantage, in excess of the value of some other lands upon which he might have settled between the point from which he started and the spot where he located.

In Bump on Fraudulent Conveyances, page 189, it is said: "The law can take no cognizance of feelings and intentions which are not manifested by external conduct. It cannot assign a bad motive to an act which is not wrong either in itself or in its necessary consequences. When the act is right, no secret feeling can change its character. In contemplation of the law, the motive which results in proper action is not a bad one." (Citing Bunn v. Ahl, 21 Penn. 387.)

The record shows that the land in dispute lies on a fine creek, has considerable bottom land, is all tillable, well adapted to crop raising, and above the average quarter section of land in Oklahoma.

In Cooper v. Harris, Copp's Land Laws 730, it is said: "As a pre-emptor he has an unqualified right to make the location of the claim with reference to the probable development of the country, and if that resulted in securing a tract adjoining a town, it would in no matter reflect upon his good faith toward the government, so long as he complied with the letter and spirit of the pre-emption law. When Harris went upon the land, it was entirely vacant and unoccupied."

In Plummer v. Jackson, Ibid: "A pre-emptor is not forbidden to settle upon lands that are likely to become centers of population, or near a town or village, * * even though he believes that his claim would become of great value on account of the proximity of villages, or cities, or that villages or cities would even be built upon such claim, and thereby enable him ultimately to realize large prices for such land. That is not the kind of speculation the statute was intended to prevent."

In Bennett v. Cravens, 12 Lans. Ch. D. 651, the rule is laid down as follows: "A settler's right to public land cannot be denied on suspicion; * * as an intelligent man he could not fail to be convinced that land immediately adjoining a growing town would soon become valuable, and there is nothing more reasonable than that he should strive to secure that land for his own benefit."

These cases state the law which should have been applied to the facts in this case, and they leave the theory of speculation in the nature of a reductio ad absurdum.

In the case of the United States v. The Brig Burdette, 9 Pet. 682, the rule is stated as follows: "And if a fair construction of the acts and declarations of an individual do not convict him of an offense; if the facts may all be admitted as proved, and the accused be innocent, should he be held guilty of an act which subjects him to a forfeiture of the property on mere presumption? He may be guilty, but he may be innocent. * * No individual should be punished for a violation of law which inflicts a forfeiture of property, unless the offense shall be established beyond a reasonable doubt. This is the rule which governs a jury in all criminal prosecutions, and the rule is no less proper for the government of the court when exercising a maritime jurisdiction."

The rule here repeatedly reiterated applies to this case.

In Pollock v. Pollock, 71 N.Y. 137, it is held, and correctly, as I believe, that: "It is error of law to find a material fact with no evidence to support it."

It must be conceded that there is no evidence to be found in this record; no circumstances noted by this court, nor any fact found by the secretary, tending to show, except upon "theory" and inference, any degree of fraud, and it is my belief that in this case, such a question of law is presented, that we may, and should, take such facts found as are sustained by evidence, and apply the law to these facts, independently of the conclusions and inferences made from the same facts in the interior department.

Homesteaders and towsite settlers are equal before the law."Qui prior est tempore, potior est jure," has long been the established rule of the land department in determining individual rights to public lands, and it is wisely left to govern in the settlement of Oklahoma. Settlement upon the public land under this law, segregated it "eo instanter" from the public domain, and the settler, either homestead or townsite, who followed the subsequent steps required by law, acquired by such settlement rights which would finally ripen into fee simple title.

Since, in my opinion, the quarter section of land on which the government had reserved an acre for land office purposes, was open to any homestead claimant until segregated under the law, by townsite settlement, I am at a loss to understand how any acts of the president had withdrawn from homestead settlement land in an adjoining section, or why settlement thereon for homestead purposes should be denied to the prior settler, because, as is stated, "it was a townsite."

In adopting his theory, which I am confident is without precedent, the secretary of the interior may unconsciously have permitted his decision to be influenced by appeals similar to those urged in this court.

The secretary says: "The land in controversy is now covered with lasting and valuable improvements, worth many thousands of dollars, and is occupied by an intelligent and thriving community, which located there in part within a few minutes after the arrival of Messrs. Paine and Fitzgerald; and to my mind, it would be a very harsh, unjust and inequitable ruling to hold that because they reached this townsite first, if they did, that they own it," thus taking the land away from the first settler, a homestead claimant, and giving it to townsite settlers who came upon the land later, and in disregard of the notice of the homesteader's claim and against his protest, and in furtherance of a pre-arranged plan to evade the provisions of the statute.

It has been well said that: "Courts are sometimes led into absurdities be elevating a mere incident into the place of its principal," and in this case, we should not sanction the substitution of the incidental reaching out of a townsite scheme in the direction of this land, for the main and principal facts which control the rights of the parties.

Upon the questions raised in the pleadings relating to the jurisdiction of the court over the subject matter, and upon the defect of parties, the opinion of my associates is left in doubt, since, in adopting as the opinion of the court the views of Mr. Justice Burford, as they are expressed in Paine v.Foster, this volume, p. 213, they make an exception of his ruling upon the question of parties, and without passing upon it.

I feel called upon to state briefly my personal views, since, if this court has had no jurisdiction and the right parties are not in court, I see no occasion for having assumed jurisdiction and holding for so many years this case, and finally passing upon its merits.

The demurrer to the complaint filed by the plaintiff in the district court, states five separate grounds. First, that the court has no jurisdiction of the defendants; second, no jurisdiction of the subject matter; third, defect of parties; fourth, that complaint does not state facts sufficient to constitute a cause of action; fifth, that several causes of action are improperly joined.

This suit was begun after patent issued to the townsite trustees, and before title to any lot had been conveyed by deed from the trustees. A proper notice lis pendens was filed with the suit.

It seems to me that the rules of practice in suits against the trustees of an express trust, to defeat the trust, should apply here. At the time this suit was brought, the beneficiaries of the trust were unknown. The trustees alone had the power to identify them, and they had not done so. It was not possible to name them individually as defendants, and it was not necessary. They could, at any time after they received title from the trustees, have asked to be made parties, and have in fact been at all times represented by counsel, and have directed the course of the defense.

This case is within the exception to the rule, that: "In suits of equity in reference to a trust estate, the trustee and the cestui que trust are both to be joined."

The rule and the exception are laid down in Vetterlein v.Barnes, 124 U.S. 169, where it is said, that: "But the rule is different where the claim of plaintiff antedates the creation of the trust and the suit is brought, not in recognition or furtherance of the trust, but in hostility to it."

The Statutes of Oklahoma, section 3767, also provides: "Except as herein otherwise provided, every express trust in real property, valid as such at its creation, vests the whole estate in the trustee subject only to the execution of the trust, and the beneficiaries take no estate or interest in the property but may enforce the trust."

There was, then, no defect of parties here.

In discussing the question of jurisdiction of the subject matter, such jurisdiction by this court is strenuously denied by defendants in error on the authority, principally, of the ruling of the supreme court of the United States inMcDaid v. The Territory, 150 U.S. 209. In that case the court used this language:

"By the scheme of this act, the title is held in trust for the occupying claimants it is true, but also in trust sub modo for the government until the rightful claimants and the undisposed of, or surplus lands are ascertained. The act did not contemplate that the allowance of the entry and the issue of the patent should operate to devolve the final determination of conflicting claims to lots upon these government appointees, and, until the trustees conveyed, the title did not pass beyond the control of the executive department in that regard."

I do not believe that, by this language, the court intends that the legal patent had not passed the legal title to the trustees. The meaning is clear. The title in its transmission passed out of the government, and into the hands of the trustees, where it remained until the claimants to lots, thecestui que trust, had been identified. Until such determination was complete, the direction of the title as between conflicting claimants to lots was under the control of the secretary of the interior, acting with appellate and supervisory powers. When no conflict arose over a lot or lots, the trustees conveyed an absolute title, without the knowledge or consent of the secretary. The conveyance made to the trustees is by patent in the usual form, to their successors or assigns, and payment of purchase price is acknowledged, with no reservations or restrictions. The patent was recorded, both in the land office at Washington, and in the office of the register of deeds for the county in which the land is located.

A part of section 6 of the act, supra, is as follows:

"And when final entry is made, the title of the United States to the land covered by such entry shall be conveyed to the trustees for the uses and purposes heretofore cited."

To this land "final entry" was made, "the title of the United States" was conveyed to the trustees, charged with a trust, but thenceforth all inquiries by the department into the merits of an adverse claim to the tract as a whole, were impossible.

In the conveyance of title by the trustees, they are the grantors. They do not convey a title held, or purporting to be held, in any manner by the government, but a title resting in themselves. It cannot be doubted that after a deed issues to a lot claimant by the trustees, he holds the legal title. But how can the trustees convey a legal title if they do not hold it?

The paragraph immediately following the one quoted from the McDaid case, above, begins by the speaking of "the regulation of the execution of the trust by the secretary," and this accurately defines his functions toward the townsite. He was no longer taking steps looking to the disposition of a parcel of the public land. All these powers and functions were exhausted as to this tract when he permitted entry and passed the land to patent. The conclusion is irresistible that the supervisory power which rests in the secretary of the interior, over townsite trustees, arises from the subordinate regulations of such trustees to himself, and not from his general duties in relation to the public lands. When patent issued, then, for the first time, accrued the rights of a defeated homestead claimant to call in the aid of a court of equity.

The case of United States v. Schurz, 102 U.S. 378, describes in detail the process by which the United States becomes totally and finally devested of its title to land. It is there said, that:

"It was within the province of these officers to sell the land, and to decide to whom and at what price it should be sold; and when, in accordance with their decision, it was sold, the money paid for it, and the grant carried into effect by a duly executed patent, that instrument carried with it the title of the United States to the land — from the very nature of the functions performed by those officers, and from the fact that a transfer of the title from the United States to another follows their favorable action, it must result that at some stage of the proceedings their authority in the matter ceases. It is equally clear that this period is, at the latest, precisely when the last act essential to the transfer of the title has been performed. Whenever this takes place the land has ceased to be the land of the government; or, to speak technically, the legal title has passed from the government, and the power of these officers to deal with it has also passed away. What is the final act which closes the transaction? The act of congress provides for the record of all patents for land in an office, and in books, kept for that purpose. An officer called the recorder is appointed to make and keep these records. He is required to record every patent before it is issued, and to counter-sign the instrument before it is delivered to the grantee. This, then, is the final record transaction; the legally prescribed act which completes what Blackstone calls 'title by record,' and when this is done, the grantee is invested with the title."

The McDaid case is not in conflict with this view of the law. The only question before the court in that case was whether the decision of the townsite trustees, in a controversy between adverse claimants to the same lot, was final, or whether the secretary of the interior had the power, under the act of May 14, 1890, supra, to provide for appeal from such decisions to the department. The court held simply that he had such power, reversing the Oklahoma court, which had failed to make the distinction between the completion of title by record, and the supervisory power of the secretary in regulating the execution of the trust.

To give the ruling in the McDaid case the effect and meaning that the legal title to the land here in controversy was still in the government, after the purchase price had been paid into the treasury; after patent issued in the usual form; after record and delivery to the grantee; after, in short, the final transaction which completes "title by record," would conflict with a rule long established and still in force, the rule as stated in United States v. Schurz, having been considered and affirmed since the McDaid case was decided. In re Emblen,161 U.S. 56. If, in this case, the district court sustained the demurrer to the complaint on the first, second, third and fifth grounds, it was reversible error.

Upon the fourth count, that the complaint does not state facts sufficient to constitute a cause of action, it is equally clear that the demurrer should have been overruled.

After reciting in detail the language of the secretary's decision, and following the same line of argument, this court without mention of the admitted and undisputed facts, the fact which entitles plaintiff in error to this land, assumes that, from his statements made upon other matters incident to the opening of Oklahoma to settlement, the secretary of the interior might evolve his theory of speculation.

The homestead law is here on trial. In this tribunal the door is closed to the consideration of extraneous matters. With the correct and usual application of the law to the facts found, was the plaintiff in error entitled to the land claimed by him as a homestead? and from the undisputed facts, the facts found by the secretary; the facts contemplated by law, the facts alleged in the complaint, admitted by the demurrer and conceded by the court, was it not error in the district court to sustain the demurrer? These are the questions to be decided.

In the opinion, to which I must dissent, it is said:

"All the circumstances connected with the initiation of his right; the condition of the land at the time; its surroundings; its relation to other tracts used for agricultural or townsite purposes; its proximity to a townsite, or to those factors which would necessarily constitute the center of a settlement of those seeking to select lands for townsite purposes, and the probability of its being required for townsite purposes; his knowledge of the land and its surroundings prior to the initiation of his claim to the same; his manner of initiating his right; his prior preparation and subsequent conduct; the fact of his having received or accepted aid or assistance from those who may have entered the Territory before the time prescribed in the proclamation; his use of the land and conduct towards adverse claimants; the adaptability of the tract for agricultural purposes as compared with other tracts that he may have passed over in reaching the same; its location, as relating to government reservations and the United States land office; its location with reference to railroads and railroad stations, are all proper matters to be considered in determining the purpose of the party in making his settlement, and in determining his good faith."

With my views of the law, I do not understand that a single one of the matters recited, except the use of the land, are proper to consider in determining the good faith called for under the established rule.

"His use of the land" is conceded to be in conformity with law. "His prior preparation" was legitimate, and was suggested to all home-seekers in Oklahoma by the thirty days' notice issued by the president. The "assistance he may have received from his friends," can be considered only with reference to his qualification, and as to whether or not he intentionally violated the law, and he was not disqualified, and the incident cannot affect the bona fides of the settlement.

It is further said: "As we understand the decision of the secretary of the interior, as set forth in the exhibit to the complaint, he denies the right of Paine to make homestead entry to the tract in dispute, for the reason that he did not take the land in good faith for homestead purposes, but with the intention of holding the same under the guise of a homestead, knowing that it would be required for a townsite, and that he might speculate off of the townsite settlers. The conclusion is stated by the secretary of the interior that he is convinced from the evidence, that Paine did not take the land in good faith for homestead purposes, as contemplated by the homestead law. If Paine did not take the land in good faith for homestead purposes, it was then immaterial for what purpose he did take it."

The lack of good faith is based solely upon the untenable theory of speculation.

The secretary did not find as a fact that Paine did speculate. He only assumes to know what Paine would do with the land after he had acquired title. Until he did acquire title, which he could only do by virtue of his prior right as a settler and subsequent compliance with law, he could do nothing in the way of speculation. After the land was his, he might, as any other homestead settler may do, dispose of it as he saw fit. The theory of speculation, with its imputation of bad faith, is not worthy of serious consideration. To give it judicial sanction is to unsettle the established rule, and, "When the law is uncertain, there is no law."

The court also says: "These facts were, however, considered sufficient by the secretary of the interior upon which to base his conclusion, and the question is not open for our consideration. Having come to the conclusion that there were facts and circumstances contained in the record upon which the conclusion and finding of the secretary might be based, it follows that the complaint did not state such facts as would justify a court in interfering with the decision of the secretary."

The complaint alleges facts agreed to by this court; admitted by the demurrer, and which, it is not to be denied, are the actual and undisputed facts. To recapitulate: The land was agricultural land, subject to homestead entry. Plaintiff was the first settler. He intended the land for his own use and benefit. He established a residence with his family and resides there still. These are facts sufficient to constitute a cause of action. They are the facts which force a conclusion of good faith.

The acts of congress and the regulations of the land department treat the good faith of a homestead settler, not as a fact, but as expressing a legal conclusion necessarily arising from the existence of certain facts. The conditions and requirements are named which only must exist as facts to warrant the conclusion.

I hold with my associates that the findings of fact made by the secretary of the interior upon the weight of disputed evidence on the certain subjects made by the law material to the issue in contested land cases, are final; but that, accepting the findings of fact made on these certain subjects, as the facts in this case, then the conclusions and inferences made by the secretary are against equity and good conscience; contrary to usage in the land department; not in harmony with the letter and spirit of the homestead law, and have resulted in denying to a homestead claimant a right to which under the laws of congress he is clearly entitled. This court had the power to say, and I think should have said: "The findings of fact made by the secretary of the interior upon controverted evidence are final, but we find that he mingled with the facts which supported the claim of the plaintiff, inferences and theories, and drew therefrom an erroneous conclusion; misapplied the law to the facts; misconstrued the law applicable to the case as established in the land department; and has denied the homestead claimant a right which, under a correct construction, would have been conceded to him; and will, in this action, restore to him the land, which in equity and good conscience and by the laws which congress has made on the subject, is justly his."

It is said in the opinion adopted by this court, that: "Equity delights to do justice, and not by halves." I see no effort here to do any fractional part of equity, nor any application of those principles which underlie the foundation of equity.

I do not believe that the opinion of a secretary of the interior stated as an ultimate conclusion is, beyond review by courts of equity; nor that a homestead right may be denied on a "theory," or upon inference; nor that bad faith may be imputed on suspicion; nor that location or value, present or prospective, affects the right of any settler to select any land open to homestead settlement; nor that bad faith may be imputed to the effort of a homestead settler to secure for his home the land adjoining a 320-acre townsite in Oklahoma; nor that a subsequent townsite settlement, without authority of law, can be permitted to outweigh and override the vested rights of a prior settler, though a homestead claimant; and, until a court of last resort in a proper case makes such a ruling, I will not do so.

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Addendum

This action involves 160 acres of land in the city of Guthrie, and was commenced in the district court of Logan county by Veeder B. Paine, the plaintiff herein, who claims to be the prior settler, against Foster et al., the townsite trustees, to declare a resulting trust. The plaintiff attached to and made a part of his petition all of the evidence taken before the local land office on the trial of his contest case. A demurrer was filed to the petition and upon the hearing thereon it was sustained. From the judgment of the district court sustaining the defendants' demurrer to the petition, the plaintiff appealed to this court. On the hearing in this court, only three judges were qualified to sit in the cause, and they were unable to agree upon a decision, because two of them were in favor of a reversal of the judgment of the lower court, and Justice Burford was in favor of affirming the same. Inasmuch as this condition operated as an affirmance of the judgment, Justice Burford handed down an opinion sustaining the judgment of the trial court; (this volume, p. 213.) Subsequently a rehearing was granted, and the case reargued, and submitted to the present court.

The record in this case is very voluminous, containing several hundred pages of closely written matter, much of which has no bearing at all upon the issue presented in this cause; but we have carefully read and considered the entire record, together with all of the briefs filed by each of the parties, to the end that we might reach a correct conclusion. A number of questions are presented by the briefs filed on the rehearing which were not argued in the original case, but we entertain no doubt but that the opinion heretofore filed by Justice Burford correctly states the law as to the propositions discussed therein, except as to the question of defect of parties. Upon this point we will not now express any opinion. If this is true, then, even though the questions raised on the rehearing were decided in favor of the appellant, they would not change the judgment of the lower court.

This opinion, written by Justice Burford, we now adopt as the opinion of the court, except that part referring to defect of parties. From this record, however, it seems clear that Paine settled on the land in controversy before any settlement was made by the townsite settlers; and, if this cause were submitted to us on the evidence introduced before the land department, our conclusions as to the facts would probably be different from the findings of fact of the secretary of the interior; but, inasmuch as there is some evidence which tends to support the findings of the secretary of the interior, we are precluded from weighing the same. The rule that the courts are bound by the findings of fact of the secretary of the interior, if there is any evidence to support them, in some cases seems harsh; but this rule is laid down by the highest court of the land, and, so far as we have been able to find, has been universally followed. Therefore we feel bound to adhere thereto.

After due consideration, we must say that we find no error in the judgment of the court below. It will therefore be affirmed.

Burford, C. J., and Irwin, J., concurring; Hainer, J., having been of counsel, not sitting; McAtee, J., withholding an expression of opinion at this time.

VEEDER B. PAINE v. JOHN FOSTER et al. (Filed February 13, 1896.) Dissenting opinion by