to make homestead entry on said tract un ed in his petition, and prior to his settleder the act of Congress, approved May 14, ment upon the said land, defendant filed with 1880, 21 St. 140, c. S9, and under the rules the Secretary of the Interior a copy of its and regulations and decisions of the Depart- articles of incorporation and due proofs of ment of the Interior of the United States; its organization under the same, and on or and that on the 31st day of July, 1902, Gil before the 6th day of February, 1902, located lies filed his relinquishment in the Land Of its line as afterwards constructed and operatfice at Lawton, in and for the district in i ed to, over, and across the said lands, and which said tract of land was located, and within 12 months after making said location, on the same day that plaintiff made his and on the 27th day of February, 1902, caushomestead entry for said tract.

ed to be filed with the register of the United The agreed statement of facts upon which States Land Office at Lawton. Okl. T., and the cause was submitted is as follows: of the land district in which said lands were

“It is hereby stipulated and agreed by and i situated, a map and profile of its said road between the parties hereto that the follow showing a section of 30 miles in length, runing statement of facts shall be taken and ning over and across the land herein describconsidered upon the trial by the court as ed, and constructed and operated through facts proven on the trial of the above-enti and across said tract; that said map and tled action, and the same are now hereby profile were afterwards approved by the honadmitted to be true by the parties hereto, orable Secretary of the Interior after July respectively, to wit: First. That on the 30 31, 1902; that said defendant commenced day of September, 1901, at the United States the construction of said road across the said Land Office at Lawton, Okl. T., William Gil land on the — day of February, 1902, and lies made homestead entry under the home completed the said road within one year aftstead laws of the United States, of the N. er the said location. W. 14 of section numbered 10, in township “It is further agreed between the parties numbered 2 s., of range numbered 11 W. of hereto that if the rights of the plaintiff in the Indian Meridian, in Comanche county, and to the lands hereinabove described were Okl. T., being the identical tract of land prior and superior to the rights of the said over which the right of way is in controversy defendant through, over, and across the in this action, and that from and after said same, the said plaintiff is by virtue of that September 3, 1901, said tract was so cover fact entitled to recover as the value of his ed by the valid and subsisting homestead interest in the lands taken, and as damages entry of said William Gillies up to the time as to that portion of the said lands not taken that he relinquished on July 31, 1902. Sec for right of way of the said railway company ond. That plaintiff, Kephart, made settle to the sum and amount of $575, and no ment and established his residence on said more. Anil that in the event of final decision land on or about February 10, 1902, and has , in favor of the said plaintiff, judgment shall resided on said land erer since. Tbird. That be entered for the said plaintiff for said plaintiff on March 1, 1902, filed a contest sum, provided, however, that nothing conagainst said homestead entry of William tained in this stipulation shall deprive either Gillies, charging speculation and abandon party of a right to do any act necessary to ment, which was the only valid pending con secure a review of the decision of the district test against said entry at the time of the court or any other court herein, on any quesfiling of Gillies' relinquishment. Fourth. tion of law by any other court having coniThat on July 31, 1902, relinquishment of petent jurisdiction. It is further stipulated said William Gillies for said claim was filed and agreed that this cause shall be deterin the United States Land Office at Lawton, mined by the district court of Comanche Okl., and immediately thereafter, and on the county. Okl. T., and a judgment rendered same day plaintiff, Kephart, made homestead therein upon the foregoing statement of facts entry for the said land under a preference without other or additional evidence. right as successful contestant, and has re "In addition to the facts stated in the sided thereon as homestead claimant erer above statement, it was agreed by the plainsince. Fifth. That plaintiff has never made tiff and defendant: That in the month of any conveyance or agreement for conveyance February, 1902, the defendant filed in the of any portion of said land to defendant, or office of the Secretary of the Interior a true for its use, and has never been paid or prof copy of the map and profile described in the fered payment for right of way over said said agreed statement, which map was certitract by defendant. Sixth. That defendant fied by the president and chief engineer of is a corporation, as alleged in plaintiff's peti the defendant, as follows: tion, and that it entered upon said tract of "State of Illinois. County of Cook-SS.: land and constructed over and across the W. E. Dauchy, being duly sworn, says that same a continuous line of railroad grade and he is the chief engineer of the Enid @ Inaroadbed, an:l occupied for said purposes a darko Railway Company; that the survey of strip of land 100 feet in width through and route of said road from a point on the line across said tract of land. Seventh. That on of the Chicago, Rock Islandl & Pacific Railthe oth day of February, 1902, and prior way, forty-six (46) feet cast and three hun to said plaintiff's homestead entry describ dred and thirty-eight (338) feet worth of the

southwest corner of section thirty-two (32), existing rights and adverse claims. Thos. township two (2) north, range eleven (11) Ryan, Acting Secretary.' west of the Indian Meridian, and ending at a It is also agreed that the railway line point one hundred fifty-five (155) feet east, through, over, and across the described land and fifteen hundred eighty (1,580) feet north was constructed under contract by a conof the southwest corner of section six (6), tractor from the said company, who in turn township three (3) south, range ten (10) west employed subcontractors to grade the same, of the Indian Meridian, in the territory of and they in doing such grading placed some Oklahoma, a distance of twenty (20) miles, earth excavated on said line more than 50 was inade under his direction as chief en feet from the center line of said railway as gineer of the company and under its authori located and constructed. That previous to ty, commencing on the 1st day of September | July 31, 1903, defendant, through its agent, 1901, and ending on the fifteenth day of De had conversation and negotiations with cenaber, 1901; and that such survey is ac plaintiff as contestant on said land, and with curately represented on this map. W. E.

his attorney, for the purpose of right of way Dauchy, Chief Engineer.

through said land, but that defendant hesi“ 'Sworn and subscribed to before me this

tated to make purchase and payment, and 14th day of Jan., 1902. Frank Stewart, No

declined to do so, because of the unsettled tary Public. [Seal.] My commission expires

condition of the title; there being several Sept. 22, 1902.

contests and adverse claims to said land." “'I, M. A. Low, do hereby certify that I M. A. Low, Blake, Blake & Low, and W. am the president of the Enid & Anadarko C. Stevens, for plaintiff in error. Black & Railway Company; that W. E. Dauchy, Trosper, for defendant in error. who subscribed the foregoing affidavit, is the chief engineer of the said company; that the GARBER, J. (after stating the facts as survey of line of route of the company's above).

above). From the agreed statement of facts (road), as accurately represented on the ac in this case it appears that one William Gilcompanying map, was made under authority | lies, on the 3d day of September, 1901, made of the company; that the said line of route

a valid homestead entry on the N. W. 14 of so surveyed and as represented on the said section 10, in township 2 S., of range 11' w. map was adopted by the company by resolu I. M., in Comanche county, Okl. T., being the tion of its board of directors on the thirty tract of land in controversy in this action; first day of December, 1901, as the definite that from and after said date said tract of location of its road from a point on the line land was covered by the homestead entry of the Chicago, Rock Island & Pacific Rail up to, and including, the 31st day of July, way, forty-six (46) feet east, and three hun 1902; that the plaintiff, Kephart, made acdred thirty-eight (338) feet north of the tual settlement and established his residence southeast corner of section thirty-two (32), on said land on the 10th day of February, township two (2) north, range eleven (11) 1902, and has since resided thereon; that west of the Indian Meridian, and ending at on March 4, 1902, he filed a contest against a point one hundred fifty-five (155) feet east, the homestead entry of Gillies, which conand fifteen hundred eighty (1580) feet north test was pending in the United States Land of the southwest corner of section six (6), Office on the 31st day of July, 1902; that township three (3) south, range ten (10) west on that date, the said Gillies, as the result of of the Indian Meridian, in the territory of said contest, relinquished his homestead enOklahoma, a distance of twenty (20) miles; try, and thereupon the plaintiff, Kephart, that the map has been prepared to be filed immediately made his homestead filing therefor the approval of the Secretary of the In on under a preference right as successful terior, in order that the company may obtain contestant; that the plaintiff, Kephart, never the benefits of the act of Congress approved made any conveyance to, or any agreement March 2, 1899, entitled “An act to provide for a conveyance of any portion of said land for the acquiring of rights of way by rail to, the defendant company, and has never road companies through Indian reserva been paid for the right of way over the tions, Indian lands, and Indian allotments, same; that the defendant company entered and for other purposes.” I further certify upon said land and constructed its grade and that the said railroad is to be operated as a roadbed, and has occupied the same for the common carrier of passengers and freight. purposes of its railroad on a strip 100 feet M. A. Low, President of the Enid & Anad in width through and across said tract; arko Railway Company. Attest: F. C. Mar that it filed with the Secretary of the Inshall, Secretary. [Seal.]'

terior a copy of its articles of incorporation “That said map and profile were approved on the 6th day of February, 1902; that on by the said secretary through Thomas Ryan, that date had located its line as afterwards acting secretary, in the following language constructed over and across said land, and indorsed thereon on the date borne by the on the 27th day of February, 1902, caused to same, to wit: 'Dept. of the Interior, Febru be filed with the register of the United States a ry 6, 1902. Approved, subject to the provi Land Office at Lawton, Okl. T., the same sions of the act of March 2, 1899 (30 Stat. being the land district in which said tract 990), and subject also to any prior, valid, is situate, a map and profile of its said road

running over and across the land described And it is held that the construction of the therein; that the said map and profile were company's roadbed is sufficient notice, to approved by the Secretary of the Interior those who take subsequently, that the comon February 6, 1902, and the defendant com pany has taken its right of way under the menced the construction of its road across act. The act of 1875 grants the right of way said land some time during the month of to railroad companies only through the pubFebruary, 1902, and completed the same lic lands of the United States. Was the tract within one year thereafter. In this case we in question public land at the time of the do not hesitate to approve the reasoning and approval of the company's profile plat by the conclusion expressed in the written opinion Secretary of the Interior, viz., February 6, of the learned trial judge as a conclusive 1902? The authorities without conflict deterexposition and a correct statement of the

mine that question in the negative. The law in the case, and which in our judgment | homestead entry made by Gillies on Septemremains wholly unanswered by the exhaust ber 3, 1901, segregated the tract from the ive briefs of counsel for plaintiff in error. public domain, and the company obtained no

Plaintiff in error relies upon Act March 3. right under the act by filing its profile plat, 1875, 18 Stat. 482, c. 152 [U. S. Comp. St. or by its occupancy, for the reason that it 1901, p. 1368), which provides :

was not public land at the time; and for the "That the right of way through the public same reason the plaintiff, Kephart, secured lands of the United States is hereby granted no right to the tract by his settlement. In to any railroad company duly organized un fact, both were mere trespassers upon the der the laws of any state or territory, ex land, and remained such until the cancellacept the District of Columbia, or by the Con tion of the homestead entry of Gillies on gress of the United States, which shall have July 31, 1902. filed with the Secretary of the Interior a It is insisted by counsel for the plaintiff in copy of its articles of incorporation, and due error that, since the plaintiff alleges that he proofs of its organization under the same, contested Gillies on the ground of abandonto the extent of one hundred feet on each ment and speculation, the court should take side of the central line of said road. Also

judicial notice of the fact that plaintiff could the right to take from the public lạnds ad only contest Gillies by filing an affidavit jacent to the line of said road material, showing that he had abandoned the land, earth and stone, and timber necessary for and if, as a matter of fact, the land had the construction of such

such railroad; also been abandoned by Gillies, he had no claim ground adjacent to such right of way for upon the railroad company, and the land had, station buildings, depots, machine shops, by such abandonment become subjected to the side tracks, turnouts, and water stations, not company's rights without compensation to to exceed in amount twenty acres for each him. That a homestead entry, valid upon its station to the extent of each station for face, constitutes such an appropriation and each ten miles of its road."

withdrawal of the land as to segregate it "Sec. 4. That any railroad company de from the public domain, and preclude it from siring to secure the benefits of this act shall, subsequent homestead entry or settlement, or within twelve months after the location of right of way, until the original entry is canany section of twenty miles of its road, if celed or declared forfeited, is supported by the same be upon surveyed lands, and if up all the authorities, and may now be regarded on unsurveyed lands within twelve months as one of the fundamental principles underlyafter the survey thereof by the United

ing the land system of this country. Chotard States, file with the register of the Land v. Pope, 12 Wheat. (U. S.) 586, 6 L. Ed. 737; Office for the district where such land is lo Wilcox v. McConnell, 13 Pet. (U. S.) 498, 10 cated, a profile of its road, and upon ap L. Ed. 264; Carroll v. Stafford, 3 How. (U. S.) proval thereof by the Secretary of the In

441, 11 L. Ed. 671; Witherspoon v. Duncan, 4 terior, the same shall be noted upon the Wall. (U. S.) 210, 18 L. Ed. 339; Pacific R. plats in said office, and thereafter all such R. Co. v. Dunmeyer, 113 U. S. 629, 5 Sup. lands over which right of way shall pass Ct. 566, 28 L. Ed. 1122; Hastings & Dakota shall be disposed of subject to such right R. R. Co. v. Whitney. 132 U. S. 357, 10 Sup. of way, provided that if any section of said Ct. 112, 33 L. Ed. 303; Sturr v. Beck, 133 road shall not be completed within five years U. S. 541, 10 Sup. Ct. 3.30, 33 L. Ed. 761; after the location of said section, the rights Sioux City & Iowa Falls v. Griffey, 143 U, S. herein granted shall be forfeited as to any 40, 12 Sup. Ct. 362, 36 L. Ed. 61: Whitney such completed section of said road.”

v. Taylor, 158 U. S. 85, 15 Sup. Ct. 796, 39 The line of definite location of the railroad L. Ed. 906; McMichael v. Murphy, 12 Okl. which determines the rights of the company 155, 70 Pac. 189; Hodges v. Colcord, 12 to the right of way under the above act is Okl. 313. 70 Pac. 383; Holt v. Murphy, 15 definitely fixed within the meaning of the act Okl. 12, 79 Pac. 263. The Land Department by the filing of a profile map showing its lo has repeatedly held that an entry segrestes cation, with the Secretary of the Interior, the land covered thereby, and so long as such and upon his approval the public lands over entry exists it precludes any other disposiwhich such right of way shall pass shall be tion of the land. Whitney y. Maxwell, 2 Land disposed of subject to such right of way. Dec. Dep. Int. 98; Schrotberger v. Arnold, 6

Land Dec. Dep. Int. 425; Allen v. Curtius, the company paid neither Gillies nor Kephart. ī Land Dec. Dep. Int. 444; Faulkner v. Mil It is also admitted that, had the inceptive ler, 16 Land Dec. Dep. Int. 130.

right of Gillies continued, the defendant coniIt is conceded by plaintiff in error that the rany would have had no right to the land, not location and construction of its road did not even a germ of right that could possibly at the time of said location and construction ripen into tangible fruition, without the recreate a right in the company which would linquishment of the rights of Gillies; that it pirerent Gillies from securing just compensa was a trespasser without legal excuse, and tion for the appropriation of his land for the would have had to pay Gillies for its right right of was had his inceptive right continu of way; but, notwithstanding these admised; but it is insisted that the land had al sions, it is insisted by the company, without ways been a part of the public domain, sub blush or embarrassment, that it was upon the ject, however, to the homestead rights of land in a receptive attitude, and when the Gillies which had attached; that the cancel rights of Gillies were terminated by the conlation of Gillies' entry was not needed to re test proceedings of Kephart, it received the store it to the public domain, but terminated benefits of the act of 1873 eo instante autothe claim of Gillies, and at the time of relin matically, before Kephart could legally seize quishment the company had filed with the the fruits of his own efforts. It might be as Secretary of the Interior due proofs of the consistently argued that Kephart was also location of its line across the tract. together upon the land in a receptive attitude. lle with a map and profile of the same, which was there before the company was, but the map and profile were on file in the United receptivity of the respective parties was imStates Land Office at Lawton, the same be potent to create a right in either. Something ing in the land district in which the said had to be done to change the legal status of tract was located; that it had commenced things; legal proceedings to be brought rethe construction of its road, and, in short, quiring aggressive action as well as the ashad complied with all the provisions of the sumption of the attitude of legal receptivity. act to entitle it to take its right of way The railroad company did nothing. Kephart thereunder prior to the time that Kephart assumed the aggressive. He acted; he infiled his contest, viz., March 4, 19902, and stituted the only legal proceedings authorizprior to the relinquishment of Gillies; and ed by law to secure the cancellation of the that by reason thereof the right of the com homestead entry of Gillies. The fourth pany to the right of way attached prior to clause of the agreed statement of facts reads: the rights of Kephart. The law of the case "That on July 31, 1902, relinquishment of will not warrant the conclusion. The land said William Gillies for said claim was filed was not a part of the public domain at the in the United States Land Office at Lawton, time the company filed its profile map with Okl., and immediately thereafter, and on the the Secretary of the Interior and took posses same day, plaintiff, Kephart, made homestead sion of the land. That the company recog entry for the said land under a preference nized this, and that it could not take its right right as successful contestant, and has residof way under the act of 1873, is shown in ed thereon as homestead claimant ever since." the certificate of the president of the com In the case of Hodyes v. Colcord, 12 Okl. 313, pany, written upon the maps themselves, set 70 Pac. 383, the Supreme Court of this territing forth the purposes and object of their

tory, said:

"The filing of Gayman, being filing, and designating the act under which it regular and valid upon its face until canceled sought to obtain benefits. The latter part of in a proper proceeding and by the proper authe certificate, stating the object and act un thority, segregated the land from the public der which the company proceeled, reads: domain. Therefore the settlement of Ilodges “This map has been prepared to be filed for could avail him nothing until the filing by the approval of the Secretary of the Interior Gayman was canceled, and the only way to in order that the company may obtain the cancel Gayman's entry was by proper and benefits of the act of Congress approved authorized proceedings." Act May 14, 1880, March 2, 18.99, entitled 'An act to provide C. 89. $ 2, 21 Stat. 141 [U. S. Comp. St. 1.901, for the acquiring of rights of way by rail p. 1392), entitled "An act for the relief of road companies through Indian reservations, settlers on public lands," and under which Indian lands and Indian allotments, and the plaintiff claims his right to recover in for other purposes.'” The approval of the this action, reads: "In all cases where any acting Secretary was made subject to the pro person has contested. paid the Land Office visions of the act of 1899, and is as follows: fees, and procured the cancellation of any “Department of the Interior, February 6, pre-emption, homestead, or timber culture (*111902. Approved subject to the provisions of try, he shall be notified by the register of the the act of March 2, 1899 (30 Stat. 990, c. Land Office of the district in which such land 374 [C. S. Comp. St. 1901, p. 10391]), and sub is situatell, of such cancellation, and shall be ject, also, to any prior valid existing right allowed 30 days from date of such notice to and adverse claims. Thomas Ryan, Acting enter said lands." Kephart began the proper Serretary." The act of 1999, referred to, re and authorized proceedings, which resulte! quireil condemnation proceedings and par in the termination of the rights of Gillies and ment for right of way, and it is admitted that a preference right to himself as a successful

contestant. Should he now be required to lute. The pre-emptor had similar duties to surrender his preference right which the law perform in regard to cultivation, residence, gives him, or any portion of it, to the rail etc., for a shorter period, and then payment road company? Why should the rights of of the price of the land. It is not conceivable the company be superior to those of Kephart? that Congress intended to place these parties It represented to the Land Department and as contestants for the land with the right in the public that it would pay for the land un each to require proof from the other of comder the provisions of the act of 1899, and aft-plete performance of its obligation. Least of er occupancy and possession, and the success all is it to be supposed that it was intended ful contest of Kephart, it now claims a por

to raise up, in antagonism to all the actual tion of the fruits of Kephart's victory under

settlers on the soil whom it had invited to its the act of 1873. It was a trespasser and Occupation, this great corporation, with an inwrongdoer ab initio, and shall it now be per terest to defeat their claims, and to come bemitted to profit by its own wrong, and reap tween them and the government as to the perwhere it has not sown? Of what value to forinance of their obligations. The reasonKephart is the preference right of making avle purpose of the government undoubtedly his homestead filing upon the land, if by is that which is expressed, namely, while we reason of his successful contest he finds the are giving liberally to the railroad company, land, or a valuable interest therein, has pass We do not give aus lands we have already ed ipso facto to the railroad company? sold, or to which, according to our laws, we Should he not be permitted to enjoy the fruits have permitted a pre-emption or homestead of his victory?

right to attach. So right to such land passes This whole subject has been very care by this grant. No interest in the railroad fully considered and appropriately discussed company attaches to this land, or is to be by Mr. Justice Miller in his opinion in the founded on this statute." If, as is said by (ase of Kansas Pacitic Railway Company Justice Miller, "no right to such land passes v. Dunmeyer, 113 U. S. 620, 5 Sup. Ct. 566, by this grant," how can it be claimed that 28 L. Ed. 1122, wherein he says: "It is argu a right of way stands upon any higher or ed by the company that, although Miller's better ground? It is true that was a land homestead entry bad attached to the land, grant case, but, if the grant of the whole of within the meaning of the excepting clause the land did not give the railroad company of the grant, before the line of definite loca any right to the land, under like condition, tion was filed by it, yet when Miller abandon why should the grant of merely the right of ed his claim, so that it no longer existed, the way inure to the benefit of the company to exception no longer operated, and the land

any greater extent? reverted to the company—that the grant by In the case of Hodges v. Colcord et al., 12 its inherent force reasserted itself and ex Okl. 313, 70 Pac. 383, it was held: "Where tended to or covered the land as though it A. has a homestead filing upon a tract of govhad never been within the exception. We are ernment land that is subject to homestead unable to perceive the force of this proposi entry, and B., while said homestead filing is tion. When the line was fixed, which we intact, enters thereon and makes settlement,

and one day after the settlement of B., C. map of definite location, then the criterion files a contest, in the local land office, chargwas established by which the lands to which ing that A. is disqualified to hold the land the road had a right were to be determined. covered by his filing and from obtaining title Xo attempt has ever been made to include thereto under the homestead laws by reason lands reserved to the United States, which of having entered the territory during the reservation afterwards ceased to exist, with prohibited period, and claims a preference in the grant, though this road and others right, and, subsequently, and while said conwith grants in similar language have more test is pending. A. relinquishes his filing to than once passed through military reserva the government, and the Land Department tions for forts and other purposes, which holds the relinquishment to be the result of had been given up or abandoned as such res the contest of C., hell, that the preference ervations, and were of great value. Nor is it right of C. is not defeated or impaired by understood that, in any case where lands had the adverse settlement claim of B. acquired been otherwise disposed of, their reversion subsequent to the entry of A.” If a private to the government brought them within the citizen cannot by his prior occupancy defeat grant. Why should a different construction the preference claim and right of the sucapply to lands to which a homestead or pre cessful contestant, how can it be said that a emption right had attached? Did Congress railroad company should be permitted to do intend to say that the right of the company so? also attaches, and whichever proved to be The case of Jamestown & Northern Railthe better right should obtain the land? The road Company v. Jones, 177 U. S. 12), 20 company had no absolute right until the road Sup. (t. 508, 4 L. Ex. 698, cited and relied was built, or to that part of it which came upon by defendant, determines only that the through the land in question. The homestead construction of the railroad is equivalent to man had five years of residence and cultiva the filing of its map and profile with the Section to perform before his right became abso retary of the Interior, so far as notice to set

have already said was by the act of filing the

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