Holt v. Classen

Opinion of the court by Gillette, J.: In considering this case, based upon the facts above stated, we shall consider the same in the light only as presented by the brief of the plaintiff in error, and in such brief the plaintiff in error states: “There is but one question raised in this case: Did the application of Levi Holt to enter the land in controversy initiate a right to said land in favor of Levi Holt; which application was made, and received by the register and receiver of,the local land office, and the legal fees tendered on the 11th day of March, 1890, and suspended on the same day, to await the determination of White et al., on appeal, said application being made four days after the final judgment of the commissioner, and before an appeal was taken to the secretary ?” This presentation of the issue narrows the question for our *135 determination to tbe single proposition: Was the tendered entry of Holt, rightfully received and held suspended at the time it was tendered March 11, 1890, and while the homestead entry of Ewers White remained intact upon the land? It will be observed that Holt’s application was not in any sense an application to contest the validity of any existing entry of or right to the land, but was an application to enter the same and file thereon a soldier’s declaratory statement, which application was by the officials of the local land office received, but held suspended pending a complete determination of the then existing rights of White et al., under the entries ’ which segregated the tract from the public domain. If the land was in fact segregated from the public domain at the time Holt tendered such entry, the local land office had no jurisdiction to accept another original right or application to enter the land, which in and of itself would be an act of segregation. It is' true that one homesteader believing himself entitled to the land may enter a contest for the determination of such right against all existing entries or applications, but this is the extent of his right under such conditions. A tendered homestead entry or application to enter a tract of land already segregated from the public domain carries with it no legal right thereto. A homestead right to a tract of the public domain may be initiated in two ways: First, by an actual bona fide settlement upon the land; second, by a homestead entry thereof at the local land office. A valid initiatory right may be secured in either of these ways, and one is as effective as the other. The first of these inceptive rights that is exercised establishes an inchoate right to the land. If each of these rights is initiated at the same time by different persons, the land office will call a hearing to determine which, in point of time, was first, and award the land accordingly. If a tract of land already segregated from the public domain by an existing entry could have another valid right thereto attached, as an original homestead right, then such right might be initiated by set *136 tlement as well as by a tendered entry at the land office; but this proposition is squarely denied by the decision of the supreme court of the United States in McMichael v. Murphy, 197 U. S. 304, involving this same tract of land. In that case it appears that, while White’s homestead entry was still intact, of record, McMichael, on'June 3, 1889, attempted to initiate a homestead right thereto by establishing a residence thereon. He was ejected from the land, and the land having subsequently been patented to one Murphy, whose right thereto attached by a homestead entry allowed subsequently to the settlement right of McMichael, he (McMichael) brought suit against Murphy seeking thereby to have Murphy’s title to the land held a trust for his use and benefit. This court denied him that right (McMichael v. Murphy, 12 Okla. 155, 70 Pac. 189), and the supreme court of the United States, review-in this decision (197 U. S. 304), says: “Following the adjudicated eases, we hold that White’s original entry was prima facie valid, i. e., valid on the face of the record, and McMichael’s entry, having been made at a time while White’s entry remained uncancelled, or not relinquished, of record, conferred no right upon him, for the reason that White’s entry, so long as it remained undisturbed, of record, had the effect to segregate the lands from the public domain and make them not subject to entry. Upon White’s relinquishment they again became public lands, subject to the entry made by Murphy.” It will be observed that the supreme court uses the word “■entry” without distinguishing between a homestead entry at -the land office and the initiation of a homestead right by settlement, but holds that lands are segregated by a homestead entry, from the public domain, and no valid entry can thereafter be made upon the land until it is restored to the public domain by a cancellation of the entry that segregated it. Following this decision of the supreme court of the United States, the supreme court of this territory, in Holt v. Murphy, 15 Okla. 12, 79 Pac. 265, a case involving this same tract of land, and the rights thereto of these same parties, held: *137 “(1) A homestead entry, valid upon its face, constitutes such an appropriation and withdrawal of the land as to segregate it from the public domain, and, so long as it remains a .subsisting entry, precludes it from subsequent entry. (2) A homestead ■application to enter land already covered by a subsisting homestead entry can confer no right whatever upon the applicant. (3) Where an application to enter land already covered by a homestead entry is received by the local land office and rejected, and an appeal is taken from such action, it is not a pending application that will attach on the cancellation of the previous entry, since the appeal cannot operate to create, as matter of law, any right not secured by the application.” The rule thus laid down- by this court is in accord with the determination of the supreme court of the United States in Hodges v. Colcord, 193 U. S. 192, wherein said court uses the following language: “Gayman’s homestead entry was p'ima facie valid. There-was .nothing on the face of the record to show that he had entered the territory prior to the time fixed for -the opening thereof for settlement, or that he had in any manner violated the statute or the proclamation of the president. This prima facie valid entry removed the land, temporarily at least, out of the public domain, and beyond the reach of other homestead entries.” An examination of the case last cited shows that such an entry, although void, by reason of the disqualification of the entryman to make it, nevertheless operates to so segregate the tract involved from the public domain as to preclude the initiation of another homestead right to the same tract by entry, until the voidable entry has been canceled. The authorities here cited, we think, justify the conclusion that the .question presented in this case by the plaintiff in error should be determined in the negative. The - judgment of the court below is therefore affirmed. Irwin, Garber, and Hainer, J. J., absent; all the other Justices concurring.