Robert Winebrenner v. Edward Forney

• Decision Date: 06 April 1903
• Docket Number: No. 409,409
• Citation: 23 S.Ct. 590,189 U.S. 148,47 L.Ed. 754
• Parties: ROBERT L. WINEBRENNER, Appt. , v. EDWARD C. FORNEY
• Court: U.S. Supreme Court

189 U.S. 148

23 S.Ct. 590

47 L.Ed. 754

ROBERT L. WINEBRENNER, Appt.,

v EDWARD C. FORNEY.

No. 409.

Argued March 6, 1903.

Decided April 6, 1903.

The appellee holds the government patent to the southwest quarter of section 19, township 26 north, range 1 east, of the Indian meridian in Kay county, Oklahoma territory. The appellant claimed an equitable right to the land, and brought this suit to have the defendant declared a trustee of the title for his benefit. A demurrer to a second amended petition was sustained by the trial court, and a decree entered dismissing the suit. This decree was affirmed by the supreme court of the territory (69 Pac. 879), and from that decision this appeal was taken. The tract is within that portion of the Cherokee Outlet opened to settlement by the President's proclamation of August 19, 1893, and the only question, as agreed by counsel on both sides, is whether appellee was disqualified by reason of being within prohibited limits on September 16, 1893, the day on which by the President's proclamation the land was opened for settlement.

Messrs. S. H. Harris and J. J. Darlington for appellant.

Messrs.A. G. C. Bierer and Frank Dale for appellee.

Mr. Justice Brewer delivered the opinion of the court:

The President's proclamation, after reciting that the Cherokee Nation of Indians had 'ceded, conveyed, transferred, relinquished, and surrendered all its title, claim, and interest of every kind and character in and to that part of the Indian territory bourded on the west by the one hundredth degree (100°) of west longitude; on the north by the state of Kansas; on the east by the ninety-sixth degree (96°) of west longitude; and on the south by the Creek Nation, the territory of Oklahoma and the Cheyenne and Arapahoe reservation created or defined by executive order dated August 10th, 1869' [28 Stat. at L. 1223]; and also that Congress had passed an act authorizing the President of the United States to open to settlement any or all lands included in such cession not allotted or reserved, declared that on September 16, 1893, the lands so acquired would be open to settlement, saving and excepting certain specified tracts and portions, including in the latter the Osage, the Kansas, the Ponca, the Otoe, and Missouri reservations. The diagram at the foot of page shows in a general way the land first above described as ceded and relinquished by the Cherokee Indians, the land opened to settlement, and the excepted reservations. The proclamation declared that the land should be opened to settlement 'under the terms of, and subject to all the conditions, limitations, reservations, and restrictions contained in, said agreements, the statutes above specified, the laws of the United States applicable thereto, and the conditions prescribed by this proclamation.' The act of 1893 (27 Stat. at L. 640, 643, chap. 209), which is one of the statutes referred to, contained this provision:

'No person shall be permitted to occupy or enter upon any of the lands herein referred to, except in the manner prescribed by the proclamation of the President opening the same to settlement; and any person otherwise occupying or entering upon any of said lands shall forfeit all right to acquire any of said lands. The Secretary of the Interior shall, under the direction of the President, prescribe rules and regulations not inconsistent with this act for the occupation and settlement of

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said lands, to be incorporated in the proclamation of the President, which shall be issued at least twenty days before the time fixed for the opening of said lands.'

And in the President's proclamation it was declared:

'Said lands, so to be opened as herein proclaimed, shall be entered upon and occupied only in the manner and under the provisions following, to wit:

'A strip of land, 100 feet in width, around and immediately within the outer boundaries of the entire tract of country to be opened to settlement under this proclamation, is hereby temporarily set apart for the following purposes and uses, viz.:

'Said strip, the inner boundary of which shall be 100 feet from the exterior boundary of the country known as the Cherokee Outlet, shall be open to occupancy in advance of the day and hour named for the opening of said country, by persons expecting and intending to make settlement pursuant to this proclamation. Such occupancy shall not be regarded as trespass, or in violation of this proclamation, or of the law under which it is made; nor shall any settlement rights be gained thereby.'

The defendant was on the day named, September 16, 1893, within the limits of the Ponca reservation, and from such reservation went into the territory opened to settlement, and made his homestead...