Winebrenner v. Forney

• Decision Date: 16 July 1902
• Citation: 69 P. 879,11 Okla. 565,1902 OK 27
• Parties: ROBERT L. WINEBRENNER v. EDWARD C. FORNEY.
• Court: Oklahoma Supreme Court

1902 OK 27

69 P. 879

11 Okla. 565

ROBERT L. WINEBRENNER v. EDWARD C. FORNEY.

Supreme Court of Oklahoma

Decided: July 16, 1902

Appeal from the District Court of Kay County; before Bayard T. Hainer, Trial Judge.

Syllabus

¶0 PUBLIC LANDS--Who not Disqualified to enter. 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.

S. H. Harris, for appellant.

Dale & Bierer, for appellee.

BURWELL, J.:

¶1 This case involves the question as to whether one who made the race into the Cherokee outlet, on September 16, 1893, from the west line of the Ponca Indian reservation is a "sooner," and therefore disqualified to make homestead entry of any of the lands thrown open to settlement by the president's proclamation dated August 19, 1893. Edward C. Forney made the run into the Cherokee outlet on the day of the opening and made homestead entry on the land in controversy, which is the southwest quarter of section nineteen, township twenty-six north, of range one east of the Indian meridian, in Kay county.

¶2 Robert L. Winebrenner filed a contest against Forney on the grounds of prior settlement and "soonerism." The contest was tried in the local land office, then appealed to the commissioner of the general land office and then to the secretary of the interior, who found in favor of Forney on both questions. Patent was issued to Forney and Winebrenner began this suit to declare a resulting trust. In the district court a demurrer to the petition was sustained, and plaintiff refusing to plead further, judgment for defendant for costs and dismissal of the action was rendered, and the plaintiff appealed to this court. We are inclined to the opinion that this case might be disposed of on technical grounds but as counsel on both sides have seen fit to waive every question except the one of disqualification of Forney, we will, because of the many other cases in the lower courts involving the same question, decide that point so that these parties, as well as other persons interested in similar cases, may know their respective rights without further delay.

¶3 By section 14 of the act of congress of March 2, 1889 it is provided:

"The president is hereby authorized to appoint three commissioners, not more than two of whom shall be members of the same political party, to negotiate with the Cherokee Indians and with all other Indians owning or claiming lands lying west of the ninety-sixth degree of longitude in the Indian Territory for the cession to the United States of all their title, claim, or interest of every kind or character in and to said lands, and any and all agreements resulting from such negotiation shall be reported to the president and by him to congress at its next session and to the council or councils of the nation or nations, tribe or tribes, agreeing to the same for ratification, and for this purpose the sum of twenty-five thousand dollars, or as much thereof as may be necessary, is hereby appropriated, to be immediately available: Provided, That said commission is further authorized to submit to the Cherokee nation the proposition that said nation shall cede to the United States in the manner and with the effect aforesaid, all the rights of said nation in said lands upon the same terms as to payment as is provided in the agreement made with the Creek Indians of date January nineteenth, eighteen hundred and eighty-nine, and ratified by the present congress; and if said Cherokee nation shall accept, and by act of its legislative authority duly pass and ratify the same, the said lands shall thereupon become a part of the public domain for the purpose of such disposition as is herein provided, and the president is authorized as soon thereafter as he may deem advisable, by proclamation, to open said lands to settlement in the same manner and to the same effect, as in this act provided concerning the lands acquired from said Creek Indians, but until said lands are opened for settlement by proclamation of the president, no person shall be permitted to enter upon and occupy the same, and no person violating this provision shall be permitted to enter any of said lands or acquire any right thereto."

¶4 Counsel for appellant contends that by the terms of this act all persons were prohibited from entering upon and occupying any of the lands west of the ninety-sixth degree of longitude, no matter whether it was lands claimed by the Cherokee or other Indians; that the Ponca reservation is west of the ninety-sixth degree of longitude and therefore no one could go upon it until thrown open to settlement, which has not yet been done. It is true that the section just quoted provides that no person shall be permitted to enter upon and occupy any of the lands referred to and that no person violating the provisions thereof shall be permitted to enter any of the lands described or acquire any right thereto, and it is also true that this section includes the Ponca Indian reservation, but this act must be considered in the light of subsequent acts of congress and the president's proclamation opening the Cherokee lands to settlement; and in order that a more complete understanding of the facts may be had we here give a map of these different reservations and lands.

¶5 We will now notice the provisions of section ten of the act of congress of March 3, 1893:

"The president of the United States is hereby authorized, at any time within six months after the approval of this act and the acceptance of the same by the Cherokee nation as herein provided, by proclamation, to open to settlement any or all of the lands not allotted or reserved, in the manner provided in section thirteen of the act of congress approved March the second, eighteen hundred and eighty-nine, entitled 'An Act making appropriations for the current and contingent expenses of the Indian

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