A settlement or entry on public land already covered of record
by another entry, valid upon its face, does not give a second
entryman any right in the land, notwithstanding the first entry may
subsequently be relinquished or ascertained to be invalid by reason
of facts dehors
the record of such entry, and one first
entering after the relinquishment or cancellation has priority over
one attempting to enter prior to such relinquishment or
It is the duty of this Court, in the absence of cogent reasons
therefor, not to overrule the construction of a statute upon which
the Land Department has uniformly proceeded in its administration
of the public lands.
On April 23, April 24, and May 1, 1889, White, Blanchard, and
Cook, respectively and in the order named, applied at the United
States land office in Guthrie, Oklahoma Territory, to make a
homestead entry on certain lands, being part of the southwest 1/4
of section 27, township 12, north of range 3 west. The applications
of Blanchard and Cook were each rejected as being in conflict with
White's entry. On April the 27, 1889, Blanchard filed his affidavit
of contest, charging that White entered the territory prior to 12
o'clock noon of April the 22, 1889, in violation of the act of
Congress approved March 2, 1889, 25 Stat. 980, 1004, c. 412, and
the President's proclamation issued under that act. 26 Stat. 1544.
On May 1, 1889, Cook also filed an affidavit of contest against
White, alleging the latter's disqualification, as above stated, to
enter the land, and also that Blanchard was also disqualified upon
the same grounds as those alleged in reference to White.
The contest having been tried before the local land office, each
party charging that the other two had entered the territory
Page 197 U. S. 305
prior to noon of April 22, 1889, the register and receiver
recommended the cancellation of White's entry and dismissed the
contest of both Blanchard and Cook. From this decision, all parties
appealed to the Commissioner of the General Land Office, and on
March 7, 1890, the decision of the local office was affirmed. An
appeal was then taken to the Secretary of the Interior. While the
case was pending before that officer, namely, on November 29, 1890,
White relinquished of record his entry, and Murphy, the defendant,
on the same day, entered the land. The Secretary of the Interior,
July 21, 1891, affirmed the decision of the Commissioner of the
General Land Office. Blanchard v. White, 13 L.D. 66.
On or about June 3, 1889, White's homestead entry being still
intact of record, McMichael entered upon the land with a view of
establishing his residence thereon and initiating a homestead right
to it, and on July 21, 1889, he made application to the local
office to enter the land, tendering the required fees; but his
application was rejected by the local office as being in conflict
with White's entry. From that order no appeal was taken.
On August 31, 1889, McMichael again tendered his application to
the local office, with the required fees. That application was
received, but it was suspended pending the contest of White,
Blanchard and Cook. On the day last named, McMichael filed a
contest or protest, alleging that he had made settlement on the
land on June 3, 1889, had lived there in a tent with his family
until August 2, 1889, when, at the instance of White, he was
forcibly removed therefrom by the military authorities; that his
rights were superior to those of White, Blanchard, and Cook, all of
whom, he alleged, were disqualified by reason of having entered the
territory during the period prohibited by law; that his application
of June 3 was rejected because it conflicted with White's
interests, although he was the only qualified settler on the tract
entitled to make entry. The case, as between McMichael and Murphy,
having been heard on February 15, 1892, a decision was rendered in
Page 197 U. S. 306
of the latter. Thereupon McMichael appealed to the General Land
Office, which, on January 18, 1893, affirmed the decision of the
local office. He then appealed to the Secretary of the Interior,
and that officer, on February 25, 1895, affirmed the decision of
the Land Office. McMichael v. Murphy, 20 L.D. 147.
A patent was issued to Murphy for the land, whereupon the
present action was brought in the District Court of Oklahoma County
by McMichael against Murphy and his grantees, the relief asked
being a decree declaring the legal title to be held in trust for
the use and benefit of McMichael. Murphy demurred on the ground
that the petition did not state facts sufficient to constitute a
cause of action, McMichael's claim being that the Secretary of the
Interior had misconstrued and misapplied the law. The demurrer was
sustained, and, the plaintiff having elected to stand on his
petition, the court dismissed the case. From that decree the
plaintiff brings the case here for review.
After the cause was entered in the supreme court of the
territory, McMichael died, and the cause was revived in the name of
Page 197 U. S. 310
MR. JUSTICE HARLAN delivered the opinion of the Court.
The particular question involved in this case is whether a
settlement or entry on public land already covered of record by
another entry, valid upon its face, gives the second entryman any
right in the land, notwithstanding the first entry may subsequently
be relinquished or be ascertained to be invalid by reason of facts
the record of such entry.
By virtue of the authority vested in him by acts of Congress,
particularly by the Indian Appropriation Act of March 2, 1889, 25
Stat. 1004, c. 412, the President, by proclamation dated March 23,
1889, declared that certain lands theretofore obtained from Indians
(among which were those in dispute) would,
"at and after the hour of twelve o'clock noon, of the
twenty-second day of April, next, and not before, be open for
settlement, under the terms of, and subject to, all the conditions,
limitations, and restrictions"
contained in the above act and in the laws of the United States
applicable thereto. 26
Page 197 U. S. 311
Stat. 1544. That proclamation contains the following clause:
"Warning is hereby again expressly given, that no person
entering upon and occupying said lands before said hour of twelve
o'clock, noon, of the twenty-second day of April, A.D. eighteen
hundred and eighty-nine, hereinbefore fixed, will ever be permitted
to enter any of said lands or acquire any rights thereto, and that
the officers of the United States will be required to strictly
enforce the provision of the act of Congress to the above
26 Stat. 1544, 1546.
It may be assumed for the purpose of this case that White
entered the territory and occupied the land before noon of April
22, 1889, in violation of the act of Congress and the proclamation
of the President. But his entry did not, on its face or in the
papers connected therewith, disclose the fact of his personal
disqualification to make a valid entry. While the entry remained
uncancelled of record by any direct action of the Land Office or by
relinquishment, could another person, by making an entry, acquire a
right in the land upon which a patent could be based? If not, then
McMichael acquired no right by his entry or application to
The supreme court of the territory held that White's homestead
entry was prima facie
valid, and that, so long as White's
entry remained uncancelled of record, it segregated the tract of
land from the mass of the public domain, and precluded McMichael
from acquiring an inceptive right thereto by virtue of his alleged
We are of opinion that there was no error in this ruling. It is
supported by the adjudged cases. Kansas Pacific Ry. Co. v.
Dunmeyer, 113 U. S. 629
Hastings &c. R. Co. v. Whitney, 132 U.
, 132 U. S.
-362; Sioux City &c. Land Company v.
Griffey, 143 U. S. 32
143 U. S. 38
Whitney v. Taylor, 158 U. S. 85
158 U. S. 91
Northern Pacific Railroad Company v. Sanders, 166 U.
, 166 U. S.
-632; Northern Pacific Railroad Co. v. De
Lacey, 174 U. S. 622
174 U. S.
-635, and Hodges v. Colcord, 193 U.
, 193 U. S.
In the last-named case, the question now before us was directly
presented and decided. It was there alleged that one
Page 197 U. S. 312
Gayman, who had made a homestead entry, was disqualified by
reason of his having entered the Territory of Oklahoma in violation
of the above act of Congress and the proclamation of the President.
The Court said:
"Gayman's homestead entry was prima facie
was nothing on the face of the record to show that he had entered
the territory prior to the time fixed for the opening thereof for
settlement, or that he had in any manner violated the statute or
the proclamation of the President. This prima facie
entry removed the land, temporarily at least, out of the public
domain and beyond the reach of other homestead entries. . . .
Generally, a homestead entry, while it remains uncancelled,
withdraws the land from subsequent entry. Such has been the ruling
of the Land Department. . . . The entry of Gayman, though
ineffectual to vest any rights in him, and therefore void as to
him, was such an entry as prevented the acquisition of homestead
rights by another until it had been set aside."
Following the adjudged cases, we hold that White's original
entry was prima facie
valid -- that is, valid on the face
of the record -- and McMichael's entry, having been made at a time
when White's entry remained uncancelled, or not relinquished, of
record, conferred no right upon him, for the reason that White's
entry, so long as it remained undisturbed of record, had the effect
to segregate the lands from the public domain and make them not
subject to entry. Upon White's relinquishment, they again became
public lands, subject to the entry made by Murphy.
In addition, it may be observed that the action of the Land
Department under the statutes relating to the public lands has been
in line with the above views. This appears from the decision in
Hodges v. Colcord,
and from the opinion of the Secretary
of the Interior in McMichael v. Murphy, 20 L.D. 147. It is our duty
not to overrule the construction of a statute upon which the Land
Department has uniformly proceeded in its administration of the
public lands, except for cogent reasons. United States v.
Johnston, 124 U. S. 236
Page 197 U. S. 313
States v. Alabama G. S. R. Co., 142 U.
; United States v. Philbrick,
120 U. S. 52
United States v. Healey, 160 U. S. 138
160 U. S.
The judgment is