City of Guthrie v. Beamer

• Decision Date: 07 September 1895
• Parties: THE CITY OF GUTHRIE v. H. C. BEAMER.
• Court: Oklahoma Supreme Court

1895 OK 65

41 P. 647

3 Okla. 652

THE CITY OF GUTHRIE v. H. C. BEAMER.

Supreme Court of Oklahoma

Decided: September 7, 1895

Error from the District Court of Logan County.

Syllabus

¶0 1. TOWNSITE LAWS--Act of Congress--Construction. By the terms of the act of congress approved May 14, 1890, for entry of townsites in Oklahoma by three trustees, to be appointed by the secretary of the interior, the secretary of the interior may, under rules and regulations promulgated by him, cause the lands occupied for townsite purposes to be surveyed and platted into lots, blocks, streets and alleys, or he may, through the trustees, adopt any survey and plat which had previously been made by the inhabitants of the townsites. And when a survey and plat had been made and adopted by the inhabitants prior to the passage of this act, and afterwards the secretary of the interior adopted and approved such survey and plat, the act of congress and the action of the secretary of the interior thereunder was in effect a dedication to the public uses of all such portions of the townsite as were designated on such plat as streets and alleys, and had the effect to divest any individual claim by settlement or occupancy to such portions.

2. PUBLIC DOMAIN--Congress Has Exclusive Power Over. Congress has exclusive power over the disposition of the public domain, and may, by appropriate legislation, divest any interest acquired by settlement or occupancy at any time prior to an entry of the land.

3. SAME--Vested Interest Not Acquired Until Entry Is Made. One claiming public lands as a homestead pre-emption or townsite settler acquires no vested interest as against the United States until an entry is made at the proper land office.

4. CITY OF GUTHRIE--Provisional Government--Survey--Dedication of Streets. The lands upon which the city of Guthrie is located were settled upon and occupied for townsite purposes on April 22, 1889, before any survey had been made for the townsite and without any reference to the necessity for streets, blocks and lots, every portion of the tract being occupied by claimants. Within a short time the inhabitants organized a provisional government for their own protection and guidance, and through such government adopted a survey and plat of the townsite on which was designated streets, alleys, blocks and lots, and the same were generally accepted and the settlers conformed themselves to said survey. Prior to the act of congress approved May 14, 1890, there was no law in Oklahoma under which townsites could be entered. After the adoption of this act the secretary of the interior caused said townsite to be entered by three trustees appointed by him, and adopted and approved the survey and plat formerly made by the inhabitants of the townsite and conveyance was made of the lots according to said plat. Beamer claimed, as an occupant, a parcel of ground situated in one of the designated streets. No entry of the townsite had been made prior to the approval of the act of May 14, 1890. Held, That the adoption and approval of such plat was a dedication by the United States of the lands designated on such plats as streets, and that the interest of Beamer as an occupant was divested by such action and he has no claim against the city or against the trustees for a conveyance.

5. VESTED RIGHT--When Not Acquired. No vested right as against the United States is acquired until all the prerequisites for the acquisition of the title have been complied with. (Ard v. Brandon, 157 U.S. 537.)

Keaton & Cotteral and B. T. Hainer, for plaintiff in error.

Harper S. Cunningham, for defendant in error.

BURFORD, J.:

¶1 This was an action brought in the district court of Logan county by the defendant in error, Henry C. Beamer, against the board of townsite trustees, appointed by the secretary of the interior and assigned to the city of Guthrie, under the act of congress approved May 14, 1890, and the city of Guthrie, defendants, to compel a conveyance to him by said trustees of a parcel of ground embraced within the townsite of Guthrie, and located on a portion of the tract laid out and used for a public street in said city. Issues were formed, trial had to the court upon an agreed statement of facts, and a finding had and decree entered in favor of Beamer, by which the parcel of land claimed by him was awarded to him in fee and a conveyance directed to be made to him of said parcel or lot. From this judgment the city of Guthrie comes to this court by petition in error, praying for a reversal of said judgment.

¶2 The agreed statement of facts contains all that is necessary for a proper understanding of the case. Said stipulation is as follows:

"Be it remembered, that on this 28th day of November, 1893, for the purpose of saving expense in said cause, it is hereby agreed and stipulated by and between the above named parties, plaintiff and defendant, that the facts in said cause are as follows, viz:

"That F. A. Morrison settled upon the piece of land described in the complaint on the 22d day of April, 1889, for the purpose of trade and business, and was in the actual and peaceable and undisputed possession of the same; that on the 23d day of April the plaintiff purchased the possession of the said Morrison and all his right, title, interest and claim thereto and paid him for the same the sum of one hundred dollars, and entered into the actual, peaceable and undisputed possession thereof, and settled upon, occupied and claimed the same for the purpose of trade and business and residence under the provisions of §§ 2387 and 2388, Revised Statutes of United States; that he at once began the improvement of the same by constructing on the east and west sides thereof and south end a fence, and built upon the north end a house 14 x 16 feet in size with lumber, and established his residence and place of business therein; that he remained in the peaceable and undisputed possession of said piece of land at all times from the 23d day of April until the 20th day of May, 1889, on which date he was thrown off of said piece of land by J. A. Acklin, B. F. Daniels and W. W. Angel, acting under the direction of Hendrick D. Baker, who acted as city marshal of the provisional city of Guthrie pursuant to the orders of the said city government; that he protested against said action.

"That about June 10, 1889, he went upon said tract again and built the foundation for a building 16 x 20 feet in size; that he was again evicted by persons acting in behalf of the said city of Guthrie and thrown off of the land by force of arms.

"That on the 10th day of August, 1889, he again entered upon said land, hauling several loads of building material upon the same for the purpose of erecting permanent improvements thereon, and he was again evicted by force of arms and prevented from occupying said lot by the said city government.

"That upon the 2d day of August, 1890, after the alleged provisional city government had ceased to claim to exist, and its officers had ceased to act, he fenced said land and placed a building 8 x 10 feet in size (constructed of lumber) thereon and occupied the same as a place of business, and that on the 6th day of August, 1890, he was again evicted and dispossessed, and his building and other property thrown from said premises by one E. P. Kelly, who acted by orders of one W. S. Spencer, who was the mayor of the village of Guthrie, which upon said date had been organized under and by virtue of the laws of Nebraska, which were then in force in said territory; both said Kelly and Spencer acted without process of law, and by virtue of their claimed authority as municipal officers of the then village of Guthrie.

That on the 20th day of August, 1890, he again reduced said premises to actual possession and fenced the same, and had begun the erection of a stone house thereon 20x40 feet in size, by grading a foundation and hauling four cords of stone; that the said city officers above named threatened and were about to again evict this plaintiff from these premises when he procured from the district court of Logan county a temporary order of injunction restraining them from in any way interfering with his possession or improvements on said premises until the further orders of said court; that said injunction has remained in force until the present time, and is now in force, and his possession of said premises has continued undisturbed until the present time.

"That he was the first and prior settler on said lands; that he never consented or acquiesced in the use of any portion of said lands by the public of the city of Guthrie for a street or alley or highway or any other purpose.

"That since the 22d day of April, 1889, he has been an actual bona fide resident of the city of Guthrie, and was duly qualified under the law to take a lot and acquire property under the laws of the United States governing townsites in Oklahoma.

"That on the 2d day of August, 1890, the above named Daniel J. McDaid, William H. Merriweather and John H. Shanklin, who had been before that time appointed as townsite trustees and assigned to duty at Guthrie under the provisions of the act of May 14, 1890, made proof and acquired title to the east half of section 8, township 16, north of range 2, west of the Indian meridian, for the use and benefit of the occupants thereof, and gave notice by publication that they were ready to consider the claims of all occupants; that pursuant to said notice plaintiff duly made and filed his application for said piece of land with said board, and thereby asked them to make, execute and deliver to him a good and sufficient deed therefor; that no other person whatsoever made or filed any application for said piece of land; that the plaintiff has at all times been willing to prove by competent testimony the facts herein and in said application set forth, but that said townsite board refused to allow a hearing on said application and without notice to plain

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