Saylor v. Frantz

Opinion of the court by Irwin, J.: It is conceded by counsel for plaintiff in error that the questions here involved are substantially the same questions presented in, the case of Winebrenner v. Forney, 11 Okla. 565, 189 U. S. 148; and also in the latter case of McCalla v. Acker, 78 Pac. 223. .This decision has been delayed for some time by the writer of this opinion, at the request of counsel for plaintiff in error, awaiting the decision of the United States supreme court in the case of McCalla v. Acker. That case having been affirmed by a de *39 cisión of the supreme court of the United States on January 8th, 1906, reported in 200 U. S. at page 613, no reason remains for delajdng this decision. In the case of Winebrenner v. Forney, 189 U. S. 148, the supreme court of the United States say, in the syllabus: “The strip of land referred to in the President’s proclamation of August 19, 1893, ‘one hundred feet in width around and immediately within the outer boundaries of the entire tract of country to be opened to settlement’ ran around and immediately within the outer boundaries of the body of lands opened for settlement, and not around the outer boundaries, of the entire tract specified in the cession and relinquishment of the Cherokee Indians.” In the same case, the supreme court of this territory, in the 11th Oklahoma, page 565, say: “One who was within the Ponca Indian reservation before the hour of 12 o’clock noon (Central standard time) of September 16, 1893, and made the race from said reservation into that part of the Cherokee Outlet which was opened to settlement on that day, is not, by reason thereof, disqualified from settling upon and filing a homestead entry upon a quarter section of land within the country then declared open to settlement.” And, in the case of McCalla v. Acker, 78 Pac. 223, this court says: “One who was within the Chilocco reservation before the hour of 12 o’clock, central standard time, of September 16, 1893, and made the race from such reservation into that part of the Cherokee Outlet which was opened to settlement on that day, is not, by reason thereof, disqualified from settling upon and filing a homestead entry upon a portion of said land.” *40 Affirmed by the supreme court of the United States, in 200 U. S. 613. On the authority of these cases, the judgment of the district court is hereby affirmed, at the costs of the plaintitf in- error. Hainer, J., who presided in the court below, not sitting; ail the other Justices concurring.