MCMICHAEL v. MURPHY

MCMICHAEL v. MURPHY
1902 OK 70
70 P. 193
12 Okla. 167
Decided: 09/02/1902
Supreme Court of Oklahoma

LAURA F. MCMICHAEL, WALTER S. MCMICHAEL, LILLIAN M. MCMICHAEL, adults, AND LULA F. MCMICHAEL, JAMES W. MCMICHAEL, EFFIE L. MCMICHAEL, WILLIAM F. MCMICHAEL, MAUD MCMICHAEL AND BERTHA MCMICHAEL, Minors, by their next friend, LAURA F. MCMICHAEL, heirs at law of William T. McMichael Deceased,
v.
SAMUEL MURPHY et al.

Error from the District Court of Oklahoma County; before B. F. Burwell, Trial Judge.

Syllabus

¶0 1. HOMESTEAD ENTRY--Law Governing. A homestead entry, valid upon its face, constitutes such an appropriation and withdrawal of the land as to segregate it from the public domain, and precludes it from subsequent homestead entry or settlement until the original entry is canceled or declared forfeited; in which case the land reverts to the government as a part of the public domain, and becomes again subject to entry under the land laws of the United States.
2. TRESPASS ON LAND COVERED BY HOMESTEAD ENTRY--What Constitutes. One who makes settlement on a tract of land while it is covered by the homestead entry of another is a mere intruder, a naked, unlawful trespasser; and no right, either in law or equity can be founded thereon.

Clark & Bryan, for plaintiffs in error.
J. H. Everest, for defendants in error.

HAINER, J.:

¶1 This was an action brought in the district court of Oklahoma county by Samuel Murphy, one of the defendants in error, against William T. McMichael, to recover the possession of the southwest quarter of section twenty-seven, township twelve, north of range three west of the Indian Meridian. The defendant, William T. McMichael, filed an answer to this petition, in which he set forth the same facts that were alleged in his petition in the case of William T. McMichael v. Samuel Murphy et al, No. 1164, reported in this volume. The precise questions are involved in this case as were involved in number 1164. And upon the authority of that decision the judgment of the district court of Oklahoma county is affirmed.

¶2 Burwell, J., having presided in the court below, not sitting; Beauchamp, J., absent; all the other Justices concurring.