Woodruff v. Wallace

The opinion of the court was delivered by

Dale, O. J.:

This is a case upon appeal from the district court of Oklahoma county, and from the pleadings it appears that Willie A. Wallace, plaintiff below, filed in the district court, bis petition for an injunction, wherein he alleged, in substance, that he is the homestead entryman for the southeast quarter of section 34, .township 12, north of range 3 west, in Oklahoma county, having made homestead entry thereon February 13, 1895. That Luinan C. Woodruff, defendant below, formerly had a homestead entry on the tract of land, and that said Woodruff is continuing to reside upon, use and occupy the entire tract, to the exclusion of said Wallace; that the homestead entry of said Woodruff was, prior to the institution of suit, cancelled by the commissioner of the general land office, under the authority aud direction of the secretary of the interior, on the 9th day of February, 1895; that such cancellation was the result of a contest instituted by said Wallace against said Woodruff; that in the contest affidavit, filed as a basis for said contest, it was alleged that said Woodruff violated the act of congress, approved March 2, 1889, and the president’s proclamation of March 23, 1889, relative to the Oklahoma lands, of which the tract in question is a part, by entering upon said lands prior to noon of April 22, 1889. And it is further alleged that after the entry of Woodruff was cancelled, and the entry of Wallace was made upon the land, Woodruff refused to vacate the premises and refused to permit Wallace to use or occupy any portion of the land so filed upon by said Wallace. Wallace also alleged that he had no adequate remedy at law, whereby he could obtain possession of the tract of land in controversy, and further alleged that under the laws of congress it was incumbent upon him to reside upon and improve the tract of land in order to maintain the validity of his homestead entry. In the petition Wallace asked that a mandatory injunction be issued, compelling Wood-ruff to vacate the premises and restraining him from further trespassing upon the land in controversy.

Attached to the petition appear copies of the decisions of the commissioner of the general land office, and the secretary of the interior, which decisions fully state the issues tried in the contest proceeding before the land department, showing that the entry of Woodruff was cancelled by reason of the contest proceedings instituted by Wallace, and that Wallace had been awarded the preference right of entry to the tract of land. Also appears as an exhibit, a copy of the receiver’s duplicate receipt, showing that Wallace had filed his homestead entry in the Oklahoma City land office for the tract in question.

To such petition Woodruff first filed a demurrer. The record does not disclose what action was taken by the court upon the demurrer. The record further shows that Woodruff filed his answer wherein he denied that he entered upon and occupied a portion of Oklahoma lands prior to the hour of 12 o’clock, noon, of April 22, 1889, contrary to law, also denied that his entry was ever cancelled by any court of competent jurisdiction; also denied that the plaintiff had no adequate remedy at law, and asan additional and further defense alleged that he settled upon the land after noon of April 22, 1889, and on .the 25th day of April, 1889, filed in the United States land office his homestead entry for such tract of land and received the receiver’s duplicate receipt therefor; and further alleged that he had resided upon and improved the Tract of land from the time of his settlement until the date of the institution of this suit in the court below; that during such time he had broken a portion of said land and cultivated the same, erected a house and barn and other improvements thereon, and that the value of said improvements was of the sum of one thousand dollars, and that by reason of such filing, entry and improvements, he acquired an equitable title in the tract of land, and under color of such title, alleged that he was entitled to the benefit of the occupying claimants act, and also alleged that the cancellation of his entry was procured by fraud and perjury, and that such cancellation was illegal and void, and that he is in no manner divested of his rights and equities in the said tract of land by reason of the pretended and fraudulent cancellation of his entry, and that he is entitled to be reimbursed by the plaintiff for the money expended by him in placing a house and making the improvements upon the land aforesaid.

A demurrer was filed to the answer of the defendant and was by the court below sustained, and the injunc-tional order issued restraining the defendant below from trespassing upon or interfering with Wallace in the use or occupancy of any portion of the tract of land, and requiring Woodruff to remove entirely from the tract of land within sixty days from the date of the order, and permitting Woodruff, within said sixty days, to remove from the land all of his buildings, fences and portable personal property. Prom such order the defendant below appealed to this court, and, by his assignments of error, and under the pleadings in this case, there is fairly raised for our consideration three propositions:

1. It is contended that the legal title to the land, being in the United States, the court below had no jurisdiction over the subject matter.

2. That the plaintiff below had an adequate remedy at law, and the mandatory injunction ought not to have been issued.

3. That the Act of Congress of June 1, 1871, put into effect the territorial occupying claimants law, and the court below had no power to dispossess the plaintiff in error until the value of his improvements had been determined and paid for.

The first contention raised by plaintiff in error has heretofore been passed upon by this court in Sproat v. Durland, 2 Okla. Rep. 24; 35 Pac. 682, and in Peckham v. Fought, 2 Okla. Rep. 173; 37 Pac. 1085, wherein it was held that “the courts of this territory have jurisdiction in matters relating to the possession of lands covered by homestead entries when the title to the same remains in the United States. That it is the duty of the courts to inquire into the status of parties claiming the right to reside upon public lands far enough to determine whether or not such parties are there in pursuance of some law of congress giving such-right; and if it be found that, under the laws of congress relating to the disposition or public lands, there are parties upon lands, claiming adversely, one of whom may have the right of occupancy and possession, and the other have no such right, then it is the plain duty of the courts to award possession and occupancy to the one whom congress intended should have such right.’’ We thought we were sufficiently explicit in laying; down the rule within which a court may act, but inasmuch as the question is still in dispute, we will again discuss the matter.

In the case under consideration it appears that Woodruff, on April 22, 1889, settled upon the tract of land in controversy, and on the 25th of said month filed his homestead entry therefor. That Wallace instituted a contest against the entry-of Woodruff, alleging that said Woodruff was disqualified to enter the land by reason of having- entered upon and occupied the land described in the act of congress approved March 2, 1889, and opened by the proclamation of the president, dated March 23 following, prior to 12 o’clock noon of April 22, 1889, and that such entry was contrary to law and the terms and provisions of the president’s proclamation aforesaid. The contest proceeding so instituted resulted favorably to Wallace, and the entry of Woodruff was by the land department cancelled, and Wallace filed his homestead entry therefor, and at the time these proceedings were begun in the court below, all matters, so far as affecting the status of the parties in the land department of the United States, were res adjudicata. We presume it will not be questioned that congress, at the time it passed the law opening these lands to settlement, had the right to prescribe the rules and regulations under which the same might be lawfully entered by homestead claimants. That question has been finally put at rest by the decision of the United States supreme court in the case of Smith v. Townsend, 148 U. S. 490, and if, as alleged in the contest affidavit of Wallace, Woodruff violated the act of congress opening these lands to settlement, then the decision of the land department cancelling his entry was a proper decision and entirely within the jurisdiction vested in the land department by congress.

Congress has also provided the manner of determining the rights of persons where more than one party claims the same tract, and such determination is had by contest proceedings, instituted in the local land office, with the right of appeal from such tribunal, first, to the commissioner of the general land office, and. from such officer to the secretary of the interior. The facts as ascertained by the laud department are binding upon the courts everywhere. (Johnson v. Townsley, 13 Wall. 78; Marquez v. Frisbie, 101 U. S. 473; Lee v. Johnson, 116 U. S. 48, and the numerous cases cited in such decisions.)

The land department, therefore, having held that Woodruff has no rights in the land in dispute, by reason of the disqualification of said Woodruff to acquire any right or title in said land, it then becomes the duty of the courts to give effect to such decision, unless the land department has misapplied the law.

Let us see if we may not be able, with some degree of accuracy, to determine the relative rights to the possession of the tract of land in dispute between Wallace and Woodruff. Now what right, by virtue of his homestead filing, had Wallace? It has been repeatedly held that a homestead entry segregates the land, and, such being true, it must follow that the government parted with something at the time of the entry. If, before the entry, the land was public domain, after the entry, it ceases to have that character. To what extent did the government part with its interest? Before entry, the entire title, both in the land aiid in the possession, was in the United States; after the entry, one of the elements of title, to-wit: possession, had been parted with, so long as such entry remains of record. Did the government reserve to itself any part of the possession? Clearly not; because, upon the filing of the homestead entry, a contract was entered into, binding upon the government to the effect that, presuming the entryman was one of the parties designated as qualified to homestead land, the government agreed to convey, by patent, if the party filing should, for a period of five years, i'eside upon and cultivate the land. Thus, it must appear as an irresistible conclusion, that, conceding the qualification of a homestead entryman, all right of possession pa-sses from the government when the filing is made, and that such right does not again inhere until, by reason of fraud in making the filing, or the establishment of a superior right in another, the entry is cancelled.

We think, perhaps, much of the uncertainty and doubt which surrounds this question grows out of the inaccurate use of terms. We are wont to speak of the United States as holding the title, and of the settler being in the attitude of having an inchoate title, equitable interest, or possessory title or right in the land. It may aid us some to notice this subject more closely and determine, if we can, the degree of title which a homestead filing confer-s. Blackstone, 2d Book, ch. 13, in defining title, says:

“It is the means whereby the owner of lands hath the just possession of his property. ”

And, following, in an analysis of title, which seems to have been universally accepted as correct, further states:

“There are several stages or degrees requisite to form a complete title to lands and tenements. 1. The lowest and most imperfect degree of title consists in mere naked possession, or actual occupation of the estate, without any apparent right or any shadow or pretence of right, to hold and continue such possession. * * * And until some act be done by the rightful owner to divest this possession and assert his title, such actual possession is prima facie evidence of legal title, in the possessor. 2. The next step to a good and perfect title is the right of possession, which may x'eside in one man, while the actual possession is not in himself but in another. 3. The mere right of property, the jus proprietatas, without either possession or even the right of possession. * * * 4. A complete title to lands, for it is an ancient maxim of law that no title is completely good unless the right of possession be joined with the right of property. * * * And when to this double right, the actual possession is also united * * then and then only is the title completely legal.”

Under these definitions, may we not accurately determine the title with which a person holds a tract of land where it is covered by his homestead entry? The United States retains the mere right of property, the jus proprietatas, without possession, or the right of posession. This must be true, as the United States could not, if the homestead entryman be qualified, dis-posses such entryman, as he is in no sense a trespasser, and under the provisions of the homestead law, the United States has stipulated with him that he may maintain bis possession, and if he shall so maintain it for five years, it is further stipulated that he shall receive a patent. It seems clear, then, that a person holding an uncancelled homestead entry upon land has a good and legal title in the possession, and a contingent title in the patent.

The next question which we naturally come to in a discussion of this feature of the case, is, bow may a person holding a homestead entry lose this right of possession? This question is easily determined. At the time a claimant presents his application to enter a tract of land, he is required to accompany the same with an affidavit wherein he undertakes to the United States, to the effect, that he has certain qualifications, and which qualifications must exist as a condition precedent, before he can, under the laws of congress, acquire, as a homestead, any of the public domain. If he is possessed of these qualifications, he is permitted to file his entry upon any land which appears upon the records of the local land office to be unappropriated. As before shown, this filing carries with it, as against the United States and against all persons, prima facie, the right of possession, and the contingent right to patent. But these conditions may be overcome by either fraud in making the entry, or by the showing of an adverse party claiming under the settlement act of May 14, 1880. Under the charge of fraud, the government or a private individual may allege that the entryman did not possess the prerequisite qualifications to enter the land, and if such fact be established, the entry is cancelled. Under the settlement act, a party may allege a right to the land, which existed prior to the time of the filing of the entry, and if such fact be proved, the entry is can-celled. The result of the cancellation upon either charge is the same. The contract with the government is at an end. The moment the entry is can-celled, the land reverts to the government as completely as if no entry had ever been made. No more rights remain in the individual whose entry has been cancelled than would exist if his entry had never been made; he stands in the same relation towards the land as he would in any other matter wherein he had contracted, and such contract had been revoked, or completely rescinded.

In this case Woodruff lost, not only his possessory right to the land, but his contingent interest in the patent, at the time his entry was cancelled. As we have sought to show, a valid homestead entry carries with it the right of possession as against other individual claimants, and as ag-ainst the government. .It must follow, then, that the courts have jurisdiction to the extent to which the g-overnment has parted with its title. For if the homestead entryman, having- a valid entry, shall comply with the law relative to residence and cultivation for the prescribed period, and the government should refuse to execute to him its patent, the courts would, upon application, make the contingent title which he holds under his filing-absolute, by compelling the government to comply with its contract entered into at the time of filing the homestead entry. Thus it is seen that what the government parts with, that is, the possession and contingent interest in the patent, the courts at once acquire jurisdiction over.

The distinction we here make is not entirely new and wholly without authority. One of the leading cases cited as against this doctrine is Marquez v. Frisbie, 101 U. S. 178. In that case the right of title only was involved. All the cases theretofore decided by the supreme court of the United States, relating to the right of a court of equity to deal with the question of title to public land, prior to the time the United States had parted with its title, were considered, and a conclusion reached tftat, in a suit to declare a person who has been awarded the right to enter land, a trustee for the benefit of one claiming by a superior equitable title therein, the court will not act, unless the legal title has passed from the government. This is the language of the court in that case:

“ It plainly appears from this, first, that defendant has not legal title; second, that it was in the United States, and third, that the matter was still in fieri, and under control of the land officers. ' * * We have repeatedly held, that 'the courts will not interfere with the officers of the government in their duties in disposing of the public lands, either by injunction or mandamus.”

Speaking further, the same opinion says that it would be equally objectionable to permit a state court to so act. The opinion here quoted from and others of like import are cited and relied upon to support the view of appellant. A careful reading of each case will show that the question of the right of possession was not considered, but only the subject matter of the title. And if any further evidence of that fact was needed, the case of Marquez v. Frisbie, supra, furnishes the proof. After citing authorities supporting the principle announced in that case, we find the following language used:

“We did not deny the right of the courts to deal with the possession of The land prior to the issue of the patent, or to enforce contracts between the parties concerning the land. But it is impossible thus to transfer a title which is yet in the United States.”

Clearly this opinion, so largely relied upon, cannot be treated as supporting the doctrine contended for. In the very nature of things, the courts must have the power to deal with the question of possession as between homestead claimants. Congress has in no way reserved such question, and all matters of dispute or litigation must abide in some court having the power to deal wife the subject.

It has been repeatedly held that where one enters by force upon the possession of another, claiming under either a homestead or pre-emption filing', the courts will, upon application, restrain such party from such interference. This was the rule laid down in Atherton v. Fowler, 96 U. S. 515.

And, as bearing upon the question of the duty of the courts to take jurisdiction as to the question of possession, between claimants on public lands, we calL attention to, U. S. v. Cleveland & Colorado Cattle Co., 33 Fed. 322; U. S. v. Brighton Ranch Co., 25 Fed. 465, and 26 Fed. 218; Webster v. Cooke, 23 Kan. 637; Downing v. Reeves, 24 Kan. 167; French v. Cresswell, 11 Pac. 62 (Oregon); Lyman v. Todd, 22 Pac. 103 (Kansas ); S. W. R. Co. v. Johnson, 16 Pac. 125 (Kansas); Barden v. N. P. R. R. Co., 145 U. S. 535.

The second assignment of error brings into discussion the question as to whether or not an adequate remedy at law is provided whereby the relief may be had. The order of injunction issued in this case is in its nature prohibitory, as well as mandatory.

It operates to restrain appellant from a further interference with appellee in the use and possession of the land, and also directs him to remove from the land and surrender possession, only permitting him to go upon the tract for the purpose of removing such improvements as might be taken off the land without injury thereto. It is contended that the order was improvidently issued, because the party seeking the same had an adequate remedy at law by the forcible entry and detainer act. And, second, that no authority in law exists for a mandatory injunction in this character of proceedings. It will at once appear that the contention that an action by forcible entry and detainer will lie, is inconsistent with the argument that the courts have no jurisdiction in this case. The right to proceed by forcible entry and detainer is predicated wholly upon the theory that the question of possession is one with which the courts of the territory may deal. The law was passed by the territorial legislature and is based upon the assumption that the jurisdictional power is in our local courts. But however that may be, conceding that an action under the forcible entry and detainer act will lie, is such a remedy adequate to afford proper relief? Under the 'homestead law Wallace was granted the immediate right to the exclusive possession of the land from the time his filing was placed of record in the local land office. As we have before stated such right inhered in him by virtue' of his filing. In order to comply with the requirements of the homestead law, it became necessary to reside upon and cultivate the land. A failure so to do would forfeit his right, secured by his filing, and might result in a loss, to him, of the land. A suit instituted under the forcible entry and detainer act must be instituted before a justice of the peace, and a judgment favorable in such tribunal may be appealed from, and a defendant in such action, upon giving bond, may still retain exclusive possession until the matter can be heard in the district court. And a judgment granted in the district court may also be stayed pending an appeal to the supreme court. And during all this time a party who, under the laws of congress, is clearly entitled to possession, is kept from exercising such right by a person who, under such laws, and as disclosed by the pleadings, has no right whatever in the land. Possibly the bonds given to stay the judgments of the justice of the peace and the district court may compensate him pecuniarily, but even then it would require numerous suits, and would be a very slow remedy to obtain a right which cannot be seriously disputed. But if we concede that he may obtain possession of the land as suggested by counsel for appellant, there yet remains, a serious objection against resorting *to such remedy in this character of a case. Under the law of congress, §2297, R. S. U. S., every person who files a homestead entry is compelled to begin a residence upon and cultivation of the land within six months from the date of his filing. A failure in this respect subjects the filing to a contest. In this territory, by the orders of the supreme court, but two terms of court are held in each county in each year, and but two sessions of the supreme court are' held in the same length of time. To say that an adequate remedy at law exists under such conditions as will afford proper relief in this character of a case is absurd. Injunction is the only process that will afford relief, and even such remedy is not entirely adequate because, under our statute, an appeal will lie from an interlocutory order. But it is the best and speediest remedy which may be had, and because it may not afford all the relief a party seeking its aid may be entitled to, is no reason for withholding the remedy. All authorities hold to the view that courts should in all cases grant relief by injunction, where the remedy at law is either insufficient or is not speedy enough to afford proper protection. (High on Injunction, §§ 12 and 30; Tiedeman on Eq. Jur. §§ 478, 479, 480, 483; Spelling on Extraordinary Relief, § 13; Walker v. Armstrong, 2 Kan. 198; Webster v. Cooke, 23 Kan. 637; Downing v. Reeves, 24 Kan. 167; Long v. Kasebeer, 28 Kan. 226.)

It is also earnestly contended that in no event will a mandatory injunction lie in a case of this character. In Sproat v. Durland, supra, this court discussed, to some extent, the question of a mandatory injunction, and held to -the view that injunction, being a proper remedy, the remedy should extend as far as the necessities of the case demanded. The authorities since examined confirm the doctrine then announced. High on Injunction, § 360, lays down this rule. And in a note to such section will be found the following by Hason, chancellor:

“An injunction for possession is not a new thing in a court of equity. It has long been used in England; it is directed in certain cases by the aforesaid act of assembly, and it would disgrace our laws and administration of justice if, after title to land has been established by the adjudication of a court, there could be no way of obtaining possession but after obtaining judgment in ejectment.”

And speaking further in the note, the following authority is cited:

“And it is said by an eminent jurist that: ‘Courts of equity also interfere and effectuate their own decrees in many cases by injunctions, in the nature of a judicial writ or execution, for the possession of the proxaerty in controversy; as, for example, by injunctions to yield up, deliver, quiet or continue the possession. Indeed, they have been distinctly traced back to the reign of Elizabeth, and Edward the Sixth, and even to Henry the Eighth. In some respects they bear an analogy to sequestrations. ” * * * (2 Story’s Eq., § 959. j

In U. S. v. Brighton Ranch Co., supra, the United States sought to compel parties to remove a fence which enclosed public lands and 'which also included within their boundary lines lands covered by homestead, pre-emptions, and timber culture entries. Mr. Justice Miller awarded a mandatory injunction and compelled a removal of the fences and prohibited the building of fences in the future. The same conclusion was reached by Mr. Justice Brewer in a case involving the same parties and subject matter. (26 Fed. 218. supra.) Again, in Wilson v. Rockwell, supra, Mr. Justice Brewer announces as a correct principle that “a party showing an equitable title to i*ealty will be protected by injunction against trespassers, though the legal title has not been finally determined.” And, in Jackson v. Jackson, 19 Pac. 847, the supreme court of Oregon held that “injunction will lie to give a person holding a pre-emption declaratory statement possession as against a trespasser.”

It may, we think, be safely asserted that a court should in all instances, where no adequate remedy at law exists, afford relief by injunction. It is a remedy which will readily adapt itself to meet any exingency which may arise between parties who are in litigation. The only inquiry which a court need make is, has the court jurisdiction of the parties and subject matter of litigation, and is there a speedy and adequate remedy at law? If the jurisdiction obtains and the law has not provided a proper remedy, the court should unhesitatingly act, by injunction, to the full extent necessary for the protection of the parties.

The last question for consideration in this case grows out of the contention of plaintiff that the court below erred in attempting to divest appellant of the land in controversy without giving to him the benefit of a trial under the occujjying claimants act. It is urged that the Act of Congress of June 1, 1874, operates to give to a person who has made improvements upon land covered by his homestead entry the status of an occupying claimant, under the laws of the territory. The act of congress referred to is as follows:

“That when an-occupant of land, having color of title, in good faith, has made valuable improvements thereon, and is, in the proper action, found not to be the righful owner thereof, such occupant shall be entitled in the federal courts to all the rights and remedies, and, upon instituting the proper proceedings, such relief as may be given or secured to him by the statutes of the state or territory where the land lies, although the title of the plaintiff in the action may have been granted by the United States after said improvements were so made.”

The statutes of this territory have an occupying claimants act (see Statutes of Oklahoma, p. 865,) which, in effect, provides for an adjudication of the right to comp'ensation for improvements made by an occupying claimant. The first section of the act is sufficient to show its purpose, and reads as follows:

“(4498) Sec. 620. In all cases, any occupying' claimant, being in quiet possession of any lands or tenements for which such person can show a plain and connected title, in law or equity, derived from the records of some public office, or being in quiet possession of and holding the same by deed, devise, descent, contract, bond or agreement from and under any person claiming title as aforesaid, derived from the records of some public office, or by deed, duly authenticated and recorded, or being in quiet possession of, and holding the same, under sale on execution or order of sale against airy person claiming title as aforesaid, derived from the records of some public office, or by deed, duly authenticated and recorded, or being in possession of and holding any land under any sale for taxes authorized by the laws of this territory, or any person or persons who have made a bmaftde settlement and improvement, which he, she or they still occupy, upon any of the Indian lands lying in this terrritory, or any lands held in trust for the benefit of any Indian tribe at the date of such settlement, or which may have heretofore been Indian lands, and which were vacant and unoccupied at the date of such settlement, and where the records of the county-show no title or claim of any person or persons to said lands at the time of such settlement; or any person in quiet possession of any land, claiming title thereto and holding the same under a sale or conveyance made by executors, administrators or guardians, or by any other person or persons', in pursuance of any order of court or decree in chancery, where lands are or have been directed to be sold, and the purchasers thereof have obtained title to and possession of the same without any fraud or collusion on his, her or their part, shall not be evicted or thrown out ’of possession by any person or persons who shall set up and prove an adverse and better title to said lands, until said occupying claimant, his, her or their heirs, shall be paid the full value of all lasting and valuable improvements made on said lands by such occupying claimant, or by the person or persons under whom he, she or they may hold the same previous to receiving actual notice, by the commencement of suit, on such adverse claim by which eviction may be effected.”

Subsequent sections provide for the calling of a jui-y to 'assess separately, the value of the land and improvements, the damages by reason of waste, and the value of the rents and profits which the occupying claimant may have received, and further provide for the payment of the award to the occupying claimant, or in case that the true owner of the land does not desire to pay the sum so awarded, he may tender a deed to the land and the occcupying claimant may pay to such owner the sum assessed as the value of the land without the improvements, and thereby obtain title to the land. No eviction is allowed as against an occupying claimant until he has been paid for his improvements, provided he makes his application for such pay, until a 11 the provisions of the act have been complied with.

It will appear at once that an attempt to enforce the occupying claimants act of this territory will meet with the very objection that has been so strenuously

urged by appellant to the effect that the courts have no power to dispose of, or molest the title to the land, so long as the same remains in the United States. The occupying claimants act of this territory is predicated upon the fact of title to the land being in one of the parties to the litigation. The supreme court of the United States has held repeatedly that a. homestead filing does not convey title, but only passes an interest in the land which may ultimately ripen into one. To say that the courts of a state or territory may proceed to sell or dispose of land belonging to the United States, is to state a proposition which cannot be maintained. Neither can land acquired under the provisions of the homestead act, be liable to the satisfaction of any debt contracted prior to the issuing of the patent therefor. (Sec. 2296, R. S. U. S.) In short, it was the intention of congress to give to any qualified person a homestead free of all incum-brances, of any kind whatever, and which could not be sold for any debt which existed prior to the time of the issuance of the patent. Neither state nor territorial legislatures are permitted to pass laws interfering with the primary disposal of the soil. That right has remained in the congress of the United States. Did congress intend to change the rule in this respect by the passage of the law of June 1, 1874, siqrra? When we examine closely that act, it clearly appears that such was not the intention. The language used, “that an occupant of land, having color of title, in good faitb, ” etc., does not change the rule relating to the disposition of land under the homestead law. The party claiming the right to invoke the benefits of the occupying claimants act, must have as a condition precedent, “color of title.” By color of title is not meant a homestead filing, because such filing does not rise to the dignity of color of title. It is a certificate which, upon its face, does not purport to give title, but is an instrument given to designate the person who has claimed, and who is granted the right to the use and occupancy of a tract of public land. The government merely parts with the possession of the land, and not the title. This instrument does not convey color of title, and was not so intended. One of the best definitions of the phrase “color of title,” is found in Brooks v. Bruyn, 35 Ill. 392, and as defined by that court is :

“Any instrument having a grantor and grantee and containing a -description of the lands intended to-be conveyed, and apt woi'ds for their conveyance, gives color of title to the lands descifibed. Such an instrument purpox'ts to be a coixveyance of title, and because it does not, for some reason, have the effect, it passes only color, or the semblance of title. It makes no differexice whether the instrument fails to pass air absolute title, because the grantor had none to convey, or had no authority in law or in fact to convey one, or whether such want of authority appears on the face of the instrument or aliunde. The instrument fails to pass an absolute title for the reason that the grantor was not possessed of some one or more of these requisites and therefox-e gives the semblance or color only of what its effect would be if they were not wanting.”

And in Wright v. Mattison, 18 How. 56, the supreme court of the United States says:

“The courts have concurred, it is believed without an exception, in defining color of title to be that which in appearance is title, but which in reality is no title.”

It is useless to quote further upon this subject as all the cases and text books seem to coincide upon the question that no person having a deed or instrument from a grantor can claim color of title except he has what purports, upon its face, to be an instrument conveying title. Measured by this rule it is readily seeix that a homestead filing does not give color of title. Again, it will be seen upoxx an examixxation of our territorial act relating to occupying claimants, supra, that it nowhere provides for an adjudication of rights between claimants occupying land, the title to which is still in the United States. Had our legislature attempted so to do, it would have contravened the express inhibition contained in our Organic Act, found in § 6, which reads as follows:

“That the legislative power of the territory shall extend to all rightful subjects of legislation, not inconsistent with the constitution and laws of the United States; but no law shall be passed interfering with the primary disposal of the soil.'-’

Counsel for appellant cite, in support of their con-' tention, Deffenback v. Hawke, 115 U. S. 392; Sturr v. Beck, 133 U. S. 541, and Kraus v. Means, 12 Kan. 26. These cases do not support the claim of counsel. In Deffenback v. Haiuke, it appears that one of the parties was a settler and occupant of a townsite at Deadwood, Dak.; that, subsequent to his settlement, an entry as a mineral claim was sought to be made for a portion of such townsite. The probate judge for the county wherein the townsite was situated attempted to enter the land for townsite purposes. A contest was instituted and the land department found that the land was a mineral bearing tract of a character which could not be entered under the townsite laws, and awarded to the party claiming for mineral purposes the land located by him. Afterwards, suit was instituted in the courts to eject the party claiming as an occupant under the townsite laws. As a defense it was claimed that the land department had misconstrued the law, and the court was asked to declare the plaintiff a trustee for the benefit of defendant. As an additional defense it was asserted that the person claiming under the town-site act had made improvements upon the land of the value of §1,200, and that, outside of the improvements, the land was worth but §100, and relief was asked under the occupying claimants act of Dakota, in the event the court found that the decision of the land department was correct, in giving a patent to the adverse party. This suit was instituted after the act o.f congress of June 1, 187-1,supra., and the opinion of the court was delivered by Mr. Justice Field, and upon that feature of the case the learned justice said:

“It is asserted under a statute of the territory which provides that ‘in an action for the recovery of real property, upon which permanent improvements have been made by a defendant, or those under whom he claims, holding color of title, adversely to the claim of the plaintiff, in good faith, the value of such improvements must be allowed as a counter-claim by such defendant.’ The case presented by the plaintiff is not covered by the provision of tliis law. There can be no color of title in an occupant who does not hold under any instrument, proceeding, or law purporting to transfer to him the title or to give to him the right of possession. And there can be no such thing as good faith in an adverse holding where the party knows that he has no title, and that, under the law, which he is presumed to know, he can acquire none by his occupation. ”

In Sturr v. Beck, supra, the case turned upon the proposition that a homestead filing, which ultimately ripened into a patent, carried with it, from its inception, the entire use and occupancy of the land, and excluded the right to divert water, which right was sought to be initiated subsequent to the filing and prior to final proof.

In Kraus v. Means, supra, we will give the language of Mr. Justice Brewer, who wrote the opinion, relative of the character of the action:

“The title to this land passed from the government to Julia Goodell. She conveyed by a deed, regular in form and apparently valid, and from her grantee Kraus obtained his title. The defect in the title does not appear on the records or conveyances, but arises from a disability to convey in Mrs. Goodell. It seems to us this is a plain and connected title derived from the records of some public office, and therefore brings Kraus within the first clause of the statute. Of course the words, “plain and connected title,” as used here do not import a perfect title; for he who holds by such has no need of the occupying claimants act. It implies a defective title, and refers only to the appearance of the record. It applies to a case like the one at bar, when, though there be a regular succession of conveyances, there is a disability in some grantor which prevents the title from actually passing.”

It afterwards transpired that Mrs. Goodell had no power to convey under the treaty which assigned to' her the land, and that, after the disability was removed, she again conveyed the land to one Means, who instituted suit in ejectment, and as against Means, the court very properly held that Kraus was entitled to the benefits of the occupying claimants act, Mrs. Goodell having parted with her entire interest. The state courts having jurisdiction, the laws of the state relative to occupying claimants would attach. But counsel for Means strongly contended that to allow Kraus the benefits of the occupying claimants act would, in effect, defeat the act of congress, which conveyed to Mrs. Goodell. And in speaking to that question, the learned justice said:

“It may be conceded that neither the title nor possession of the Indian owner, secured by treaty with the United States government, can be disturbed by state legislation; and if Mrs. Goodell were plaintiff in the action, seeking to recover possession, it is probable she would be entitled to both land and improvements (though as that question is not before us we do not decide it.”)

The language is significant as showing that whatever disposition the government seeks to make of its ■lands, the courts must uphold. And that, too, no matter what the conditions of the grant may be. But there is another feature of this case, which in our judgment effectually disposes of the claim of defendant. Under the act of congress opening these lands to settlement, approved March 2, 1889, there is a provision which reads as follows:

“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 ever be permitted to enter any of said lands or acquire any right thereto.” (See St. of Okla. p. 32, § 58.)

This act has received judicial construction in this territory (1 Okla. 117,) and by the supreme court of the United States (Smith v. Townsend, 148 U. S. 490,) and it is now well settled that persons within the boundaries of this territory at the time the same was opened to settlement can acquire no rights whateverin land from theUnited States. As exhibits, attached to the petition filed in the case in the court below, and now part of the record before us, we find that in the contest proceedings instituted by plaintiff below, in the local land office, that appellant was charged with being disqualified to enter lands in Oklahoma, by reason of the fact that he entered and occupied the land prior to the time fixed in the proclamation of the president for the settlement of these lands. We also note that the land department has found such charge to be true, and upon such finding cancelled appellant’s homestead filing. Such a finding is binding upon the courts. (Johnson v. Townsley, 13 Wall. 72; Marquez v. Frisbie, supra.)

We are, in the face of this fact so found, precluded from holding that the appellant, in good faith, made improvements upon this land. And how pertinent to this case is the language of Mr. Justice Field, in Deffeback v. Hawke, supra, in speaking of a person claiming to have, in good faith, made improvements upon public land:

“And there can be no such thing as good faith, in an adverse holding, where the party knows that he has no title, and that, under the law, which he is presumed to know, he can acquire none by his occupation.”

It seems unnecessary to carry this discussion any further. We are of the opinion that the appellant cannot obtain the benefits of the occupying claimants act, and that the court below committed no error in this case.

The judgment of the court below is affirmed.

Scott, J., having presided at the trial below, not sitting.

Burford, J.: I concur in all the conclusions reached in this case, but some of the reasonings do not meet my entire approval.

Bierer, J., and McAtee, J., dissenting.