WALTER S. McMICHAEL, Lillian M. Harris, Lulu F. McGee, et al., Plffs. in Err. and Appts., v. SAMUEL MURPHY, Louisa Murphy, His Wife, Ferdinand Batchelder, et al.

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 dehors 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 2d, 1889 (25 Stat. at L. 1004, chap. 412), the President by proclamation dated March 23d, 1889, declared that certain lands theretofore obtained from Indians (among which were those in dispute) would 'at and after the hour of 12 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 Stat. at L. 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 12 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 effect.' 26 Stat. at L. 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 22d, 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 uncanceled 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 enter.

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 uncanceled 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 settlement.

We are of opinion that there was no error in this ruling. It is supported by the adjudged cases. Kansas P. R. Co. v. Dunmeyer, 113 U. S. 629, 28 L. ed. 1122, 5 Sup. Ct. Rep. 566; Hastings & D. R. Co. v. Whitney, 132 U. S. 357, 361, 362, 33 L. ed. 363, 365, 366, 10 Sup. Ct. Rep. 112; Sioux City & I. F. Town Lot & Land Co. v. Griffey, 143 U. S. 32, 38, 36 L. ed. 64, 65, 12 Sup. Ct. Rep. 362; Whitney v. Taylor, 158 U. S. 85, 91-94, 39 L. ed. 906, 908, 909, 15 Sup. Ct. Rep. 796; Northern P. R. Co. v. Sanders, 166 U. S. 620, 631, 632, 41 L. ed. 1139, 1143, 17 Sup. Ct. Rep. 671; Northern P. R. Co. v. De Lacey, 174 U. S. 622, 634, 635, 43 L. ed. 1111, 1115, 1116, 19 Sup. Ct. Rep. 791; and Hodges v. Colcord, 193 U. S. 192, 194-196, 48 L. ed. 677-679, 24 Sup. Ct. Rep. 433.

In the last-named case the question now before us was directly presented and decided. It was there alleged that one 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 valid. There 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 valid 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 uncanceled 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 uncanceled, 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 Land Dec. 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, 31 L. ed. 389, 8 Sup. Ct. Rep. 446; United States v. Alabama G. S. R. Co. 142 U. S. 615, 35 L. ed. 1134, 12 Sup. Ct. Rep. 306; United States v. Philbrick, 120 U. S. 52, 30 L. ed. 559, 7 Sup. Ct. Rep. 413; United States v. Healey, 160 U. S. 138, 141, 40 L. ed. 370, 371, 16 Sup. Ct. Rep. 247.

The judgment is affirmed.