CHAPTER XXI (cont.)
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SOONER AND PERJURY CASES
BY W. F. HARN

   In the fall of 1890 the secretary of the interior, Hon. John W. Noble, received a communication from the register and receiver of the United States land office at Oklahoma City stating that perjury was being committed so generally in contested cases in that district that it was next to impossible for those officers at that time to even as much as guess approximately which side in a trial was telling the truth. The letter appealed to the department for a special agent to make an investigation on the ground and to take such action as might be necessary in the premises.
   At the opening of Oklahoma Territory but two land offices were authorized, one at Guthrie and the other at Kingfisher. It soon became apparent that the lands close to Oklahoma City, being vastly superior to those of other sections of the new country, were being so vigorously contested for that a land office at that place was an absolute necessity. Hence in 1890, a year or so after the opening, a new land office was created at Oklahoma City, which at once became the busiest land office in the United States.
   The interior department was looking about, in the closing days of December, 1890, amongst its several hundred special agents, for a suitable person to under take the Oklahoma perjury investigations, when Senator John Sherman, of Ohio, suggested the name of W. F. Harn, of Mansfield, in that state, as a person capable of satisfactorily performing the delicate task.
   Mr. Harn was selected, and with the simple instructions to proceed to Oklahoma City and assist the local United States officers in an attempt to eradicate the crime of perjury and prosecute the offenders, arrived at his destination the first of January, 1891.
   In order to understand thoroughly the perjury situation in the territory, it is necessary that something be said about the conditions existing at the time of the opening of the country to settlement, as well as before and after.
   For many years prior to the legal opening of Oklahoma, ambitious and adventurous citizens of bordering states made repeated pilgrimages into the territory for the purpose of making homes therein, but invariably the United States government detailed bodies of the Ft. Reno and Ft. Sill soldiery to drive these would-be settlers out of the country. The reason given was that the rights of the Indian tribes had not yet been fully extinguished and under the various treaties the government was bound to keep the country free from white intruders.
   There was the additional reason, however, that the country was soon to be thrown open to homestead settlement and it was intended to give every qualified citizen, whether residing in Maine, Kansas or California, the same opportunity to get a home in the country whose fertility and agricultural possibilities were known to be equalled by few and surpassed by no other section in the American Union.
   It was, therefore, the most natural thing for Congress to include, in the act providing for the opening of the country to settlement, a provision having in view the clearing of the promised land of all intending settlers, so that every one could have a fair and even chance with every other to procure a home as a gift from the government.
   Oklahoma was composed of two sections of Indian lands, namely, those ceded by

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the Creeks, and those joining the latter on the south, ceded by the Seminoles. In the act of Congress of March 1, 1889, relating to the Creek cession, Congress provided that,
   "Any person who may enter upon any part of said lands in said agreement mentioned prior to the time that the same are opened to settlement by act of Congress shall not be permitted to occupy or to make entry of such lands or lay any claim thereto."
   In the act of Congress of March 2, 1889, in relation to the Seminole cession, providing for the opening of the Oklahoma country to settlement, the following language was also used: "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 rights thereto."
   On March 23, 1889, President Benjamin Harrison issued his proclamation naming 12 o'clock noon, April 22, 1889, as the time of the opening of Oklahoma to settlement and reiterated the warning of Congress that the lands, which were particularly described, "will at and after the hours of twelve o'clock, noon, of the twenty-second day of April next, and not before, be opened for settlement under the terms of and subject to all the conditions, limitations and restrictions contained in said act of Congress approved March second, eighteen hundred and eighty-nine, and the laws of the United States applicable thereto."
   The proclamation gave the further warning, "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., one thousand eight hundred and eighty-nine, hereinbefore fixed, will ever be permitted to enter any of said lands or acquire any rights thereto, and the officers of the United States will be required to strictly enforce the act of Congress to the above effect."
   Notwithstanding these repeated warnings, both by Congress and by the president of the United States, intending settlers swarmed into Oklahoma during the prohibited period and the soldiery had its hands full driving them from the country. As rapidly as they were expelled, the more venturesome, and they were in the vast majority, would recross the lines into the forbidden land. The attempt to enforce the prohibition, therefore, became a mere travesty, for Congress had not provided a penalty other than a disqualification to acquire any of the lands as a homestead.
   Hence, at 12 o'clock, noon, April 22, 1889, the hour set for the opening of the country to settlement, the great mass of people seeking homes in the new country had divided themselves into three distinct classes.
   One was the official class in the employ of the government or the Atchison, Topeka and Santa Fe Railroad, who were in the country by permission on account of their employment.
   The second comprised those who slipped into the country under cover of night. These selected the most desirable tracts of land that appeared to be unclaimed and put such improvements thereon as in law would be sufficient to furnish proof of prior legal settlement.
   In this second class was also a contingent who boldly or secretly, as the individual case seemed to require in order to evade Uncle Sam's bluecoats, before the hour of opening went upon land adjoining the tract

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he wished to claim and immediately after the hour of 12 o'clock, noon, April 22, 1889, stepped upon the tract selected as his homestead.
   The third class comprised the great body of homeseekers, who believed the law meant what it said, and therefore remained on the line till the time named in the president's proclamation as the time of the opening.
   When the latter class invaded the coveted lands afoot, on horseback, in wagons, in buggies and in every imaginable means of conveyance, behind horses, mules and even oxen, at breakneck speed, there is little wonder that every valuable piece of land in the valleys and every tract of land close to the promising larger townsites were entered upon and occupied by settlers who seem to have sprung from the ground or dropped from the skies.
   Many of the premature settlers had tents up, shacks and dugouts underway, and even gardens made with the vegetable plants glistening bright and green in the brilliant sunlight of an Oklahoma April day, thus apparently surpassing the magic of the Oriental jugglers who will grown a beautiful rose bush in full bloom while one looks on in wonderment and admiration.
   After one had ridden like mad for many miles, almost killing his horse, through black jacks, over sand hills and prairie, and across streams and ravines, only to find that some one had beaten him afoot, there was but one thing to do for him who remained on the line in obedience to the law, and that was to squat on the land evidently settled upon unlawfully by the man he found in occupancy. This was done by thousands and nearly all the valuable tracts from one end of the territory to the other were claimed by two or more settlers, while some of the more valuable pieces of land in the vicinity of Oklahoma City were claimed by as high as ten or a dozen persons.
   In the land department of the United States government, a judicial system had been evolved whereby settlers on public lands could have their respective rights inquired into after the manner much similar to that prevailing in a court of law without a jury. This suit is called a contest, and is initiated by the aggrieved person filing in the land office and affidavit setting out the cause of the contest stated concisely and corroborated by two witnesses in writing under oath deposing to the facts stated in the affidavit of contest from personal knowledge and observation. On the allegations contained in the affidavit of contest a "hearing" is ordered and the trial proceeds in the usual manner, except that the testimony of the witnesses is taken by a stenographer and the typewritten testimony is signed by the witness.
   Here, then, is where perjury began to assert itself. Willfully testifying falsely to a material question in these land contests, knowing the statements to be false or not believing them to be true, was declared by the United States courts to be perjury just as much as if the testimony had been given in court. It was also held that a false oath to any affidavit filed in the United States land office for use in any matter involving, legally, a contest is perjury, if all the other elements of perjury were present.
   If the man who came legally from the line after 12 o'clock, noon, April 22, 1889, succeeded in getting the homestead entry, that is, if he got to the local land office first and his application for the homestead accompanied by the necessary affidavits was accepted first and a receipt issued, the other claimant would file a contest for prior settlement, in the trial of which the issue of

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the violation of the act of March 2nd, 1889, and of the president's proclamation was raised.
   If the man who was in the country before the hour of opening got his homestead entry of record in the local land office first, it became necessary for his opponent to file a contest with the proper corroboration, if he desired to further assert his claim to the land. In the latter case the contestant usually alleged that the entryman had entered upon and occupied the land contrary to law and the president's proclamation, specifying, if he could, the circumstances of the disqualification, and offering to pay the costs of such contest.
   Thus was created a new word in the vocabulary of the English language. The man who violated the acts of Congress and the president's proclamation opening Oklahoma to settlement came to be known as a "sooner." He who was lawfully in the country during the prohibited period because of his employment as deputy United States marshal, soldier, clerk, railroad employe [employee] and the like received the distinctive title of "legal sooner," while the one who, illegally in the country, admitted his presence therein, but claimed a right to be there as long as he did not "enter upon and occupy" a particular tract till after 12 o'clock, noon, April 22, 1889, never acquired any appellation than that of a plain, ordinary, every-day "sooner."
   The latter and the so-called "legal sooner," however, deserve considerable commendation for the force of character displayed amidst the most seductive temptations. These, being on the grounds at the hour of opening, settled upon tracts of land of great possible future value, some of which, adjoining Oklahoma City, literally became worth millions of dollars, and yet, with a rugged honesty worthy of the highest praise, these men stood upon the facts and their interpretation of the law and refused to commit perjury, when perjury meant to them, perhaps, a competency for life and in some instances wealth beyond the most fantastic dreams of avarice.
   While the sooner lines were pretty well defined from the beginning, contestants and contestees were somewhat at sea as to what would be the final interpretation of the "sooner" clause, until on October 1, 1890, Secretary of the Interior John W. Noble handed down a decision in the case of the Townsite of Kingfisher vs. John H. Wood and William D. Fossett, in which the following language was used:

   "The evident intention of Congress was to give to all persons desiring homes in Oklahoma an equal chance to obtain them. The territory was opened for homestead settlement to any qualified homesteader, but under the same conditions. No partiality was intended to be shown to any individual or class of individuals. Those who had been endeavoring for years to enter upon and occupy Oklahoma were confronted by the authority of government. The statute meant to lay a heavy hand on any one who persisted in the unlawful purpose of entering upon and occupying this territory for settlement. The law was meant to be superior to the spirit of aggression so long prevalent—the spirit that had gathered those bands about this Indian reservation, whose avowed purpose was to enter upon and occupy it, not under the land laws of the United States, nor by any law, but that of the armed hand, and to conform to no statute or treaty until future necessity might compel. The evil was apparent. The law was meant to end it. It condemned the purpose, and intended to render it fruitless.

* * * * * * * * * * * * *

   "The language of the law was broad as it could be made, prohibiting any one from entering upon the lands for the purpose of settling the same. * * * * The evident purpose of the law was to prohibit one or

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another entering the territory before the proclaimed hour, with a view and purpose of settlement of any part thereof. No one could be there, legally with such purpose, in whole or in part. Whether there before the time by some permit or without it, the one who then entertained the intention of making a settlement and to use the advantage which his presence gave, to the exclusion of others, was violating the spirit of the law, and it destroyed his claim when attempted. If he had declared it before, he should have been expelled; if he exhibited such preconceived purpose by his subsequent act, he not only could not lawfully claim any particular tract, but forfeited all right to future acquisition.

* * * * * * * * *

   "To hold that the few with permits, or especially engaged within the limits of these lands any more than those there without license, could pick out their claims in advance of the hour of opening, and pounce upon them at the very moment the signal was given to the others to start on their long race, would be to support pretension and favoritism and punish honorable obedience to authority. It is neither the law nor the equity of the case, and will not be allowed. He who, being within these lands by special authority, as deputy, trainman, wagonmaster, or other, had the purpose to jump upon a particular tract, and who gave the evidence of his prior intent by his conduct immediately thereafter, violated the statute. Such persons had entered upon and occupied this territory for the purpose of settlement—before the hour fixed in the proclamation—whatever license they may hold up or self-indulgent and self-deceiving pretext they may now present. They were not licensed or employed thus to defeat the law and injure their neighbors.
   "Both classes were prohibited from acquiring rights to these lands; those who were in the territory at and before the hours designated in the proclamation without pretense or special license; and those who were there by special authority, or for a special purpose, but attempted to pervert their presence to secure claims before others held on the border could arrive, even from the most distant parts thereof."

   A "sooner" having thus been defined, there was a scurrying of claimants to cover. The "legal sooner" and the one who admitted his presence in the country during the prohibited period hastened to try to fix up some sort of a settlement or compromise with his opponents, while the genuine simon-pure "sooner," he who left the line between two days, and hid in the brush on or in the vicinity of the land he subsequently claimed as a homestead, loudly proclaimed his presence, during the prohibited period on the line outside of the country opened to settlement, and prepared to prove it, too, by as many of his neighbors as necessary, with whom he became acquainted in the brush where he himself had lain concealed when the soldiers were scouting in the vicinity.
   Out of this condition of affairs grew secret combinations and organizations made up of men who had violated the law. The lands in controversy between themselves and others were too valuable for them to meekly allow their contestants to get them without every resistance in their power.
   Some of these secret organizations had a carefully drawn set of by-laws and constitution. Regular meetings were held at the homes of the members at fixed times, and at other times witnesses were trained and drilled in the testimony they were expected to give in a particular case. Hence by means of the perfect understanding between the members of the various organizations, it became possible to furnish a "preponderance" of the testimony on any particular point in any case of one of its members. Indeed, a legal homesteader was usually overwhelmed in the number of witnesses introduced by the "sooner," and at one period in the early day history it almost seemed impossible for the rightful applicant to prevail. These secret organizations were

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usually composed of men in particular neighborhoods, but their sympathies and the ramifications of their interests were such that evidence was furnished from one to the other indiscriminately, although always on the basis of quid pro quo, on the theory that they were engaged in a common cause in which each member would be strengthened by the success of every other.
   There was the Crutcho Organization, so named because the most of its members lived in the valley of a creek known by that name and along the North Canadian river, of which the Crutcho was a tributary. These lands are among the richest in America, the soil rivaling that of the valley of the Nile. It is hardly a marvel, therefore, that many persons fought with desperation to get such a home, where north and south meet and all the products of both grow side by side in such abundance as is not equaled in the one section or the other.
   Another organization was known as the Lightning Creek Combination, so called, also, after the name of the valley in which most of its members were claiming lands. This "combination" was located south of Oklahoma City near the North Canadian river, and on some of the disputed land is today Capitol Hill, a suburb of Oklahoma City, with a population of four thousand persons.
   Then there was the Bohemian Outfit, composed of forty or more naturalized citizens of that nationality, who "soonered" the valley of the Mustang, a section rivaling in beauty and productiveness the broad, rich, black, level bottoms of the Crutcho. While the latter organization was composed principally of foreigners, yet they exchanged witnesses with some of the Americans, so that altogether in the end these combinations became an amalgamated whole. In fact, so difficult was it to identify an individual Bohemian that it seemed almost impossible to break the stories cunningly told and abundantly corroborated. So thorough was the preparation of their cases that in the civil suits they won everything everywhere till reversed by the secretary of the interior after criminal convictions. The exchange of testimony with the Americans, however, proved their undoing, for once the American organizations went to pieces the perjury of the Bohemians became easily apparent and as easily proven.
   One of the by-laws of the Crutcho Organization was especially forceful and, as was no doubt intended, capable of any extreme interpretation the members saw fit to put into it. It was:
   "Any person found guilty of violating any of the rules of this organization or of carrying news to the enemy shall be dealt with according to a two-thirds vote of the members present."
   There was another similar combination on the South Canadian river, another between Yukon and El Reno, and numerous small combines in other small rich valleys in various locations, and many exclusive sets surrounding Oklahoma City.
   In some of these combinations were men of desperate character, many of whom later on served terms in prison for other crimes or died "with their boots on."
   Such, briefly, was the conditions of things at and near Oklahoma City at the time the United States government determined to stop the crime of perjury by driving the perjurers into the penitentiary.
   Some lawyers contended that false swearing willfully to a material matter in the land office was not perjury and that there was no law to punish persons so accused. Those who had been committing the crime openly and boldly defied the prosecution. The first grand jury that sat in the United States

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side of the territorial court in January, 1891, brought in seventy-five indictments for perjury. The foreman of the grand jury was a "sooner," but belonged to the class that believed that he was violating no law as long as he did not go upon the tract of land he sought, before the hour of opening, and spurned the thought of committing the crime of perjury. His name was John A. Blackburn.
   These indictments were followed rapidly by other indictments and the most vigorous prosecutions ever known in a western court. After being indicted, the accused persons defied prosecution, and boldly told the officers that they could never get convictions, no matter what the government proved. Threats of assassination were frequent and ofttimes above board, but those charged with the duty of breaking up the hotbed of perjury relentlessly pursued the prosecution.
   Hon. John G. Clark, formerly of Lancaster, Wisconsin, was the presiding judge, with Will H. Clark as clerk of court, while Hon. Horace Speed, of Guthrie, United States Attorney for Oklahoma, and W. F. Harn, special agent, of Oklahoma City, acted for the United States government. Assistant United States Attorney John E. Stone and Special Agent John W. Scothorn rendered material assistance, although the work of the two latter was confined mostly to prosecutions in the vicinity of Guthrie, where similar "sooner" and perjury combinations, but on a much smaller scale, had been formed and maintained.
   The first few trials consumed as much as four weeks each, day and night, and were fought desperately by the several defendants and their attorneys. A conspiracy was unearthed, in which it was planned to dynamite the court house for the purpose of killing Judge Clark, United States Attorney Speed and Special Agent Harn, but the plans of the assassins were thwarted by the early discovery of the details through a confession of one of the accused, who subsequently served time in prison for murder. A bomb was thrown under the house of Special Agent Harn, but the fuse was put out by the bomb striking some bushes. At another time Deputy United States Marshal Frank Cochran stayed the hand of defendant perjurer's son-in-law, as the latter was about to plunge a dirk in the back of Special Agent Harn, as the latter was leaving the court room. Other instances of this kind, never publicly made known, were numerous and frequent.
   These acts of intimidation, however, failed to stop the monotonous and incessant grind of the court. Conviction followed conviction as rapidly as the cases were submitted to the juries. Many defendants left the country as soon as they heard that their case was under investigation by a grand jury, which they could pretty well figure out by the names of the witnesses before that body, while many of those indicted jumped their bonds, and never again appeared in the territory. The officers were deluged with offers from defendants to turn state's evidence, and many detailed confessions were had that were never used. Although the guilt of the defendants was established by untainted testimony, in all case, yet usually the prosecution was able and did use the evidence of several accomplices for the main purpose of showing the secret methods of the organizations.
   After the backbone of perjury had been broken, it was no unusual sight for defendants to appear in court and enter pleas of guilty with a request for immediate sentence. On one morning, in single file, no less than eleven defendants appeared before Judge Clark and asked that they be

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permitted to change their former pleas of not guilty to peas of guilty as charged in the indictments.
   The Bohemian Outfit were indicted at Oklahoma City, Guthrie and Wichita for perjury committed in cases tried at Oklahoma City, Guthrie and Kingfisher. At the time of the giving of the evidence at Kingfisher the United States court at Wichita had jurisdiction over the territory, which accounts for the prosecutions in Kansas.
   There was little else than perjury tried at Oklahoma City in the year 1891, yet the docket was far from cleared of cases charging that crime as the end of the last term of the court drew near. The Bohemians were notified that in a few days their indictments at Guthrie would be tried. But a trial was not what they were looking for, and some sixteen or more hurried to Wichita, where they were under bond and asked the United States marshal to lock them up, in order that their bondsmen might be exonerated. This was done, and when it was discovered that their voluntary return to prison was merely a ruse to get the defendants out of the jurisdiction of the Guthrie court, the Kansas officers volunteered to return the accused to Guthrie for trial. Inasmuch as the defendants and their attorneys seemed to prefer the Kansas jurisdiction, all of the cases were set down for immediate trial in that court before United States Judge Williams.
   A desperate effort was made by the defendants' attorneys to avoid the trial. Messrs. Speed and Harn were charged with having Oklahoma terrorized by their prosecutions, and it was claimed that the defendants could not get a fair trial, because of the fear of their witnesses to testify. After being forced into trial, however, the same old gang of witnesses was on hand for the defense with the same old brazen stories. The prosecution examined nearly one hundred witnesses on behalf of the government, hammering to pieces every material statement made by a perjury witness. a jury returned verdicts of guilty against fifteen defendants in three days. Since the convicting jury came from every part of the state of Kansas and had little or no acquaintance with conditions in Oklahoma, the verdicts were a complete vindication of the Oklahoma officers. When prominent defendants went upon the stand and mad a full confession of perjury and subornation, the hitherto almost impregnable defense wasted away like a mist before the rising sun. One defendant escaped. His indictment was dismissed on the motion of the United States attorney for a defect in the copying.
   Hon. Joseph W. Ady, United States attorney of Kansas; Hon. Pliny Soper, assistant United States attorney, and W. F. Harn prosecuted, while Stanley, of Wichita, later governor of the state, defended. Judge Williams was so greatly impressed with the completeness of the government's prosecution to the minutest detail, that he voluntarily remarked that it was the most remarkable series of prosecutions that ever came to his attention on account of the preparedness of the prosecution to meet every point in law or evidence that might possibly have been raised.
   These fifteen defendants were sentenced to the penitentiary for terms of from a year and a day to four years at Leavenworth.
   There were other trials of perjury cases, but the crime had been stamped out, and the later prosecutions were of a desultory character. Numerous cases, also,were tried that involved perjury on matters other than the "sooner" question, but they were few when compared to the whole number

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tried. During the service of Special Agent Harn prosecuting perjury not a single acquittal took place.
   In most cases the rightful claimant in the end prevailed, notwithstanding repeated defeats in the civil suits. And yet there are instances where valuable claims were held by "sooners" and all efforts to dislodge them proved to no avail. The suspected persons were smart enough to keep their matters to themselves, but as one or more would part with his interest he would often confide the true facts to a friend.
   Hon. Caleb R. Brooks, Hon. T. F. McMechan and Hon. Roy Hoffman, United States attorney and assistants, assisted by W. F. Harn, then a practicing attorney, who succeed the officers under the Harrison administration, followed the early day prosecutions with commendable vigor, but the crime became unpopular and the great State of Oklahoma is the better for it.
   After almost twenty years have expired, in looking back over the facts in those historic trials, in which at least one hundred and fifty persons were indicted for perjury, and two-thirds of that number either convicted, made fugitives from justice or allowed to turn state's evidence, the writer does not recall a single instance of a prosecution by him not justified by the facts.

_________

   Some valuable information touching the settlement of Oklahoma City and the disputes over the homestead claims adjoining the townsite is contained in the "Findings of facts and conclusions thereon by the register and receiver of the Guthrie land office," in the case of "Townsite Settlers of Oklahoma City, vs. Frank M. Gault et al.," in the United States land office in 1890. An abstract of these findings appears herewith:

   Sections 3 and 4 of township 11 north, range 3 west, and the southeast quarter of section 34, township 12 north , range 3 west, are bottom land, but the north half of sections 33 and 34 are rolling uplands, with a gradual slope to the south. The beginning of this elevation is about one thousand feet south of the south line of the north half of those sections. There is a small ravine on the line dividing sections 33 and 34, each section having a gradual slope thereto.
   Prior to noon, April 22, 1889, there had been constructed and was in operation a railroad, known as the Atchison, Topeka and Santa Fe, running in a southwesterly direction down the ravine, and on the line dividing the sections mentioned. At a point about 800 feet north of the point where the sections corner was located the station, freight and passenger depot, side tracks and water tank. Near the depot was the postoffice.
   At noon on that day abut thirty people were at the station and from one hundred to one hundred and fifty in that vicinity. At noon, Charles Chamberlain, a civil engineer and a resident of Great Bend, Kan., was at the station with a plat which he had previously made, of a proposed town to be known as Oklahoma City, to embrace the north half of the northeast quarter of section 4, the southeast quarter of section 33 and the south half of the northeast quarter of section 33. He was at the station to survey the ground into lots, blocks, streets and alleys at the instance of a private citizen, whose name he refused to disclose in this case. At two minutes past noon he, with six assistants, began the survey about 1,728 feet north of the south line of section 33, and ran the south line of Main street west and at right angles with the railroad a distance of two blocks. He then returned and ran the east line of Broadway south from Main one block and a half. Then he ran the east line to the north line of the south half of the northeast quarter of section 33, this line being run at one o'clock, and small stakes one inch square were driven on the lines of the survey. Returning to Main street he extended the south line to the west line of the east half of section 33. Broadway was located at right angles with Main street about 400 feet west of the east line of section 33.
   At once, after the survey was begun, the people present began to stake lots on Main and Broadway, and on the commons on the southeast quarter of section 33. About 150 people settled upon the southeast quarter before two o'clock and ten minutes p. m. of that day.
   Several hundred of the thousands of people who had congregated at Purcell before the opening had decided to locate at Oklahoma station,

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and to establish a town to be known as Oklahoma City on the east half of section 33. The train on the Santa Fe left Purcell at noon, and before it arrived at Oklahoma station it was arranged that one of their number, Peter G. Burnes, a civil engineer, should survey the townsite. The train arrived at 2:10 p. m. and two thousand of the people thereon left the train and went in various directions to locate lots, but the greater number went west and north of the depot and settled upon the southeast quarter of section 33. After the arrival of the train Peter G. Burnes made preparations to survey the townsite and devoted the remainder of the day in finding the township line, from which he intended to start. He first surveyed Reno avenue, located on the township line, then California avenue, then Grand avenue. He was about three weeks doing this work. About the middle of May he began to survey the north half of the northeast quarter and was prevented from doing so by force. The differences between the Chamberlain and Burnes surveys were subsequently adjusted, which surveys locate Oklahoma City on east half of section 33, but the north half of the northeast quarter was never surveyed.
   The application for the townsite, filed by Louis O. Dick as trustee, on the opening day, named the south half of the northeast quarter and southeast quarter of section 33, and the north half of the northeast quarter of section 4.
   At the time this case was tried in the land office, in the latter half of 1890, the population located on the east half of section 33 numbered about 2, 278 persons; most of the business district and the greater part of the population in the southeast quarter.
   The contest which originated this suit in the land office was over the northeast quarter of section 33, which was included in the original townsite and was also sought as a homestead. The following description found in the findings is part of history.
   Samuel Crocker, as a member of the Payne colony, was in Oklahoma in the year 1885, and at several times subsequent to that date, during which time he resided in Kansas. He came to Oklahoma station March 2, 1889, and established a residence at that place. Immediately after 12 o'clock noon, April 22, he settled upon the north half of the northeast quarter of section 33 and established a residence where he lived up the date of this suit. Soon after he went upon the land, he dug a hole in the ground, had some plowing done, and erected a tent in which to live. By the 26th of April he had three or four acres broken, and subsequently had thirty-three acres broken. He erected a frame house 12 by 16 feet in size, with one addition 16 by 24 feet in size and another 8 by 12 feet. He erected a stable and dug a cistern and well and built a chicken house. He fenced six or seven acres near the house and put up 350 rods of wire fence. He set out an orchard of two acres, 76 shade trees, planted two acres of watermelons and cantaloupes, one acre of buckwheat and two acres of turnips. On the 24th of April he made homestead entry No. 33 of the north half of the northeast quarter.
   But at noon on April 22, Frank M. Gault, who had lived twelve miles east of the east line of Oklahoma Territory, started from that line and arrived and settled upon the northeast quarter of section 33 at one o'clock and ten minutes past noon. On the following day he had the land surveyed, and put up a tent, and later did some plowing and made improvements of various kinds. When, on May 17, he made application to enter the tract for a homestead his application was rejected as being in conflict with the entry of Crocker on the north half of the quarter and with the townsite application of Dick.
      Three men named Fuller had each made application for entry of this quarter for homestead purposes. Besides the claimants who contested for this particular quarter section as a homestead, a man named George E. Thornton, who had been a government freighter previous to the opening and resided in a house on the northeast quarter of section 4, laid claim to this quarter section for homestead purposes. In the findings is other evidence regarding the settlement of Edward DeTar, Meshack Couch and Thomas Wright, who had been in government service in the country prior to opening and had located on lands immediately after noon of the opening day.
   Besides the matters of history involved in these findings, the register and receiver of the land office, in summing up the evidence, gave their decision on the rights of the homesteader as against the townsite claimant, and that decision is an important review of this subject.
    "At one o'clock and ten minutes p. m. of day Frank M. Gault, a qualified homesteader, settled upon the northeast quarter of said section as a homestead, and has since resided thereon and maintained his settlement rights, and that at the time of his said settlement no settlement had been made thereon for the purpose of trade and business.
   "It is insisted by the townsite claimants that Oklahoma station was a prospective townsite; that persons at Purcell and elsewhere had decided

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to locate a town on the said half section as soon after noon of said day as it could be reached; that persons settled upon the southeast quarter at once after said hour; that the survey of the town was begun at that time; that by law such townsite settlers were entitled to enter three hundred and twenty acres of land; that a settlement upon any portion of it segregated the whole three hundred and twenty acres; that the settlement upon the southeast quarter segregated the northeast quarter also, and that homestead claimants were bound to take notice of these facts.
   "It is settled by an unbroken line of decisions that settlers for homestead and townsite purposes are governed by the same rules of law, acquire their rights in the same way—by actual selection and settlement—and that such rights date from the first initial act. Speaking on this subject, in the case of Kingfisher vs. Wood, et al., the honorable assistant commissioner says, 'A body of people coming together with a common purpose of locating a town upon public land, have no greater rights under the law than a homestead settler, they are upon the same footing, and, as in this case, their rights must be determined according to the priority of their initial acts.'
   "Gault's first initial act as a homestead claimant was his actual settlement upon the northeast quarter at one o'clock and ten minutes p. m. of said day and the real question is: Was the land at that time subject to homestead entry? All lands in Oklahoma were subject to homestead entry unless they had been selected or settled upon and occupied for purposes of trade and business. At that time, had this quarter section been selected?
   It is true that the proposed settlers at Purcell had decided to locate the town on this half section, but they were not settlers nor occupants of the land or any portion of the same and ere prohibited from making such settlement prior to noon. The land department has always distinguished between a settlement and an intention to settle. The declarations of the settlers while at Purcell show an intention to settle, but such intention did not segregate the land from homestead entry. In Keith vs. Townsite of Grand Junction, 3 L. D., 431, Secretary Teller uses this language: 'I had no intention to, nor did I, rule that a townsite could not be selected by a few persons; but I found as a fact that the persons who made this selection were not settlers on the land, and that they did not go upon it for the purpose of then becoming settlers; and I ruled, as a matter of law, that such persons were not competent to make a legal selection.' In Kingfisher vs. Wood, et al., the honorable assistant commissioner says: 'Undoubtedly the first act in locating a town under the public land laws, is the selection of a site, and without defining just what acts constitute a selection it is sufficient to say that there can be no legal selection for such purpose without a personal inspection and examination of the land by some of the people locating thereon or their agent. The theory that the people assembled at Buffalo Springs, I. T., April 22, 1889, legally selected the north half of the section in question as the townsite for Kingfisher, cannot for a moment be entertained. At that time, these people had never seen the land, and by the act of Congress and the president's proclamation, above referred to, they were prohibited from examining the same, either in person or through an agent.'
   "The evidence shows that at noon there were about one hundred and fifty persons in the vicinity of Oklahoma station, and that between that hour and one o'clock they settled upon said southeast quarter, but the preponderance of evidence is against such settlement having been made. The evidence does not show that any of such persons selected any particular half section for the townsite. Besides, they were in the territory at noon and made selection of lots immediately after that hour. Having at once made selections and being in the territory at a time when they could not have come from the line after noon, the fair presumption is that they were there illegally for the purpose of taking lands. It is true that Charles Chamberlain, the civil engineer, had a plat of the town which covered half of said quarter section, and was there for the purpose of laying the same off into lots, blocks, streets and alleys, but he had done but little surveying before Gault's settlement, and that which he did do was upon the southeast quarter, except the running of one line of a street to the center of said northeast quarter. While we found that such line had been run at that time, the evidence is very conflicting upon the question. Such line did not of itself show for what purpose it was run or that it was the line of a street. Chamberlain himself was non-resident, had come into the territory illegally, and could not make the selection for himself or any one else, had he attempted to do so. It does not appear that the person who procured his services was at that time or ever since has been a settler upon the land or a person competent to make a selection or settlement. It does not appear that Chamberlain represented or was acting for the settlers present, nor does it affirmatively appear that there was a single settler upon said half section who had come from the line after noon of said day. The burden of proof is upon

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the townsite claimants to show legal and valid selection and settlement of the land to segregate it from homestead entry.
   "It is true that a reasonable number of persons may settle upon the public domain for the purpose of trade or business and that they may embrace in the townsite entry three hundred and twenty acres, even though their actual settlement is all upon one quarter, but to hold the other quarter section as against a homestead claimant such settlers must make a selection of such quarter before the initiation of the homestead right. 'To select is to choose, to set apart, to designate.' C. P. L. L., page 1297. No townsite settler had at the time of Gault's settlement, selected, set apart, or designated the northeast quarter as a part of the townsite. It may be true that Gault was bound to know that the town was entitled to enter three hundred and twenty acres, but he was not bound to know that such settlers were going to claim this tract of land. How was he to know but that the quarter section east, west or south might be selected? He was bound only to initiate his homestead right to prevent the lands from being taken as a townsite and townsite claimants were bound to initiate their claim to segregate the lands from homestead entry. The fact that Gault settled near a proposed townsite cannot be accepted as evidence of bad faith. The following language, used by the commissioner in Plumer vs. Jackson (10 C. L. O. 71), is quoted with approval by Secretary Teller: 'The statutes cannot be construed to mean that persons going to the frontiers or along the lines of projected railways, and anticipating centers of population, shall not enjoy the benefits of their enterprise and foresight, though they believe their claims would be of great value on account of their proximity to cities or villages, or that villages or cities would even be built upon such claims, and thereby enable them to ultimately to realize large prices for such land.' 3 L. D. page 434.
   "The evidence shows that just after the arrival of the first train a large number of persons settled upon the northeast quarter of said section four for purposes of trade and business and have continuously so occupied the same until the present time, and that at this time there are twelve hundred people occupying said tract and have improvements of the value of $94,413. It also appears that George E. Thornton was a deputy United States marshal and government freighter, and had been stationed and living on said land since and prior to the passage of the act of Congress of March 2, 1889, had made improvements on said land and claimed the same as a homestead immediately after noon, April 22, 1889, and is now making such claim.
   "Section thirteen of the act of March 2, 1889, provides: 'Until said lands are open for settlement, by the 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.' It is insisted by counsel for Thornton that he is not disqualified from taking a homestead by said act, because he was in the territory lawfully and lived here prior to and at the time of its passage.
   "In the general land office decision in the case of Blanchard vs. White and Cook the honorable assistant commissioner, in discussing this statute, says: 'The clause of the statute under consideration has reference to only one class of persons, viz. 'All persons who, from and after the approval of the act aforesaid and prior to 12 o'clock noon of April 22, 1889, should enter upon and occupy any portion of the territory with the intent to make selection, settle upon or enter any of the lands therein. All others are not with the prohibitory clause.'
   "George E. Thornton was lawfully within the territory and began his residence upon the quarter section claimed by him prior to the purchase of said lands by the government from the Indians, and prior to the passage of the act of March 2, 1889. It is admitted by the counsel for the townsite claimants that he claimed the tract in controversy as a homestead, for the first time, after 12 o'clock noon of April 22, 1889, and that in pursuance of said claim he followed up the initial acts of his claim by establishing a residence, cultivating, etc., and has so continued to do to the present time, and that said claim was made prior to the time that nay portion of the same was claimed by any person or persons as a townsite by any settlement or entry thereon. In the case of the City of Kingfisher vs. John H. Wood and William D. Fossett it appeared from the evidence that Wood was within the territory included in the president's proclamation, dated March 23, 1889, prior to 12 o'clock noon of April 22,1 889; that he was at the time of the passage of the act within the limits of said territory by proper authority. It was held by the local office that in accordance with the views expressed by the honorable ex-commissioner, Mr. Stockslager, in a letter to Senator Ingalls, under date of April 12, 1889, that Mr. Wood was on April 22, 1889, a legally qualified entryman. In considering this case the honorable assistant commissioner says: 'I agree with your first conclusion that the fact that John H. Wood has for a number of years prior to April 22, 1889, been a resident within the Oklahoma country did not operate to preclude him from making a homestead entry in Oklahoma

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on said date.' The same construction of the law is again made by the honorable assistant commissioner in considering the appeal of John C. Chapin from the rejection by the Kingfisher office of his application to make a homestead entry.
   "Thornton was as lawfully and as properly within the territory at the time of the passage of the act of March 2, 1889, as either Wood or Chapin, and in view of the foregoing decisions Thornton has lawfully acquired a prior right to all other claimants to the quarter section claimed by him.
   "We therefore conclude that Frank M. Gault initiated a homestead right to the northeast quarter of said section thirty-three (33) and that George E. Thornton initiated a homestead right to the northeast quarter of said section four before the same had been settled upon or occupied for the purposes of business and trade. That Edward DeTar, Samuel Crocker and Meshack Couch are disqualified from making homestead entry; that the southeast quarter of said section thirty-three is occupied by people for the purposes of trade and business and there are no valid adverse claims thereto.
   "We recommend that each of said homestead entries be canceled; that the occupants of the southeast quarter of said section thirty-three be allowed to enter the same as a townsite under the act of May 14, 1890, and that a hearing be ordered to determine the rights of the several homestead claimants to said other several tracts of land.

JOHN I. DILLE, Register,
"C. M. BARNES, Receiver."

"Register Dille:
    "I concur in the above conclusions as to the qualifications of George E. Thornton to make homestead entry because it seems to have bee so decided by the honorable assistant commissioner of the general land office. It is by no means certain, however, that the above language used by him should govern this case."