Cook v. McCord

Opinion of the court by McAteb, J.: To justify the conclusion reached by the trial court, it must have found that Cook had abandoned the lot in litigation. The finding of facts, however, passes conclusively, not only in the original finding of facts made by the commissioner of the general land office, but by the second finding of facts made by him, as well as the finding of facts made by the secretary of the interior. In each and all of these findings respectively, the fact that Cook had first occupied the lot, settled upon and improved it; had in good faith .endeavored to occupy it for business purposes; had never either relinquished or surrendered it; had been a continuous occupant of it, but for the interference of Bennett, and the forcible methods of the so-called “arbitration board,” which set itself up- with an assertion and exercise of power at that time; that he had always retained the intention after being warned and forced off, of returning to and occupying the lot; and that of all these things he had given constant notice to all the parties interested and interfering with his peaceable and rightful possession, until Bennett, by his *208 forcible intervention, backed up by tbe so-called police officers of that time, and the warning conveyed in the municipal ordinance No. 44, together with-the unfair and pretended hearing .of the case before the so-called “board of arbitration,” if we had any right to pass upon the question here, we would be compelled to find that he had never abandoned the lot. In the case of Betts v. Townley, 20 L. D. 425, which went up to the secretary of the interior from Oklahoma City, the facts were, for all practical purposes, exactly like those in the present ease: “It is in evidence that immediately after the opening up of the Territory, a provisional government was formed for the government of Oklahoma City, and a citizen’s committee of fourteen members was appointed to adjust matters between conflicting lot claimants. While this committee heard proof, and was not altogether arbitrary in its decisions, it was the outgrowth of the emergency of the hour, and was without any express warrant of law. It is clear, however, that while the board had no legal authority to determine these controversies, it had the actual power behind it, supported by public sentiment, to enforce its decisions. * * It is in evidence that in other cases, where defeated claimants refused to abide the decision of the committee, that force was used, and it is a reasonable presumption that Betts and Harrah would have been forcibly ejected from the Hot, 'and perhaps arrested for violation of a city ordinance, if they had attempted to remain thereon.” One of the claimants in that case contented himself with publishing a notice to all persons that he was the first occu *209 pant of the lot, and intended to set up a claim for it before the town-site commissioners. Under the circumstance® this was held to be a sufficient assertion of right, and it was- held in the case, that: “A town lot claimant who vacates a lot in obedience to an award made- by a citizen’s committee, can not be held by such action to have voluntarily abandoned his claim to said lot.” In matters passed upon by the land office, and which are open for review by the courts, it has been repeatedly decided by the supreme court of the United States, that the findings of fact made in the land department are final, and will not be reviewed in the courts, in the absence of fraud or imposition or mistake. (Johnson v. Towsley, 13 Wall 84, 20 Coop. Ed. 487.) And it was said in Shepley v. Cowan, 91 U. S. (Co-op. Ed. vol. 23, p. 438,) that: “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, with a view to secure the rights of pre-emption. If they err in the construction of the law, 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 *210 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.” And it was said in Vance v. Burbank, 101 U. S. 514, (25 Co-op. Ed. 930,) that:' “The question in dispute is one of fact; that is to say, whether Scott, when he demanded his patent certificate, as against the other contesting claimants, had resided on and cultivated the lands 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, after 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.” And it was expressly held in Lee v. Johnson, 116 U. S. 48, (Co-op. Ed. vol. 29, p. 571,) that abandonment is a question of fact, and that the findings of the secretary of the interior, in the absence of fraud and imposition, are final; in which the language of the court is, that: “It is clear that their attention was drawn to- it by the character of the settlement of Johnson, and that they considered whether his entry was maderto acquire a home *211 for himself or for Ms son-in-law; whether his residence had been sufficiently personal and continhouS to save and perfect any right, if in fact he had ever initiated any, and whether or not hie had abandoned the land.”' And it was said in Marquez v. Frisbie, 101 U. S. 473; (Co-op. Ed. vol. 25, p. 800,) that even where there is a mixed question of law and fact, and the court cannot so-sepa rate it 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. The question, therefore, having been tried in the court' below upon whether or not Cook had abandoned the lot,, and the findings of fact in the successive stages of investigation iii the department having been uniformly to the effect that he had not abandoned, but had been forced from it, that finding's conclusive here. " But the findings of fact in the interior department also contained the statement that there appeared in evidence to be no deed of conveyance from McKay to his wife; no evidence whatever that Euth A. McKay had ever resided in the Territory or occupied or seen the lot, and that, on the contrary, the deed from Bennett and Pitts to D. S. McKay appeared to have been interlined by the insertion of the word “Mrs.” before the words “D. S' McKay,” and that there appeared to be an erasure of the word “Ag’t” after the words “D. S. McKay,” the apparent and perhaps the necessary inference being that the deed from Bennett and Pitts to McKay was so altered after execution and delivery, so as to make the original deed to McKay to appear in lieu of a conveyance from D. S. McKay to her, which would have been nee- *212 ess-ary to perfect her right to set up any claim to the Tot, and that she had never, therefore, received any conveyance of the interest of the preceding occupants, nor had any right whatever to set up the claim upon which this action is founded. ■ • The judgment is reversed, and remanded to the dis.trict court with directions to proceed in accor- lance with this opinion. All of the Justices concurring.