OKLAHOMA TOWN LOTS-ADVERSE CLAIM.

THE GODDARD PECK GROCER CO. ET AL.

A certificate of right issued by the municipal authorities of a town to a lot claimant entitles him to a deed therefor, where the adverse claims presented do not fall within the jurisdiction of the Department.

Secretary Smith to the Commissioner of the General Land Office, July (J. I. H.) 2, 1894.

(W. F. M.)

On September 16, September 22, and October 2, 1890, respectively, Lewis J. Best, The Goddard-Peck Grocer Company and Theodore A. Pamperin, presented their several applications to the board of townsite trustees, No. 1, assigned to Guthrie, Oklahoma, each asking for the allotment of lot No. 1, in block No. 71, in the town of Guthrie, and a deed therefor.

Pamperin's application is based upon priority of settlement and actual occupaucy, that of Best on right of purchase from Pamperin, and that of The Goddard-Peck Grocer Company upon purchase from "original settlers," and continued occupancy since purchase.

A hearing was had on March 16, 1891, after which the board rendered judgment

That lot No. 1 in block No. 71, in Guthrie, Oklahoma, with the improvements thereon, be and the same is hereby awarded and allotted to said Goddard-Peck Grocer Company, and that a deed be made and delivered accordingly.

The decision of your office, now on appeal here, reversed, or modified this judgment, and awarded the lot in controversy to Pamperin, who was not a party to the proceedings before the board, having failed to make the required deposit to cover the expenses of the hearing, and who has not subsequently appeared except by brief through counsel since the case has been pending in this Department.

The facts developed at the hearing which are necessary to an intelligent comprehension of the attitude of the parties in interest and of their respective rights in so far as they have shown any, may be stated in a few words.

On April 20, 1889, A. J. Witherell and T. A. Pamperin, the latter one of the claimants herein, both being then in Arkansas City, Kansas, entered into an agreement by the terms of which "they joined themselves jointly together for the purpose of doing a grocery business in the town of Guthrie, Indian Territory, and further for taking up lots in said city in which each will have an equal interest." Other and further stipulations of the contract have no bearing upon the contro

versy.

Accordingly, soon after the opening of Oklahoma to settlement they engaged in business at Guthrie, and each of the partners, in his individual name, located, occupied and claimed certain lots within the limits of the townsite, but whether in the interest and for the benefit of

the partnership, pursuant to their agreement, is not conclusively shown, Witherell, as his interest appears, asserting the affirmative of the proposition, while Pamperin, with adverse interests, contends for the negative. For the lot involved in this litigation, however, the mayor and council of Guthrie, on May 20, 1889, issued to Pamperin, in his individual name, an instrument styled by them a warranty certificate" by which they guarantee to him possession of the lot and a deed in fee simple without further proof of settlement. The certificate also purports to be a receipt in full for all assessments levied upon the lot for the purpose of defraying the expense of survey, platting and any other charges against said lot to date.

It appears from parol testimony admitted into the record that in December, 1889, Pamperin conveyed the lot, by a deed the character of which is not clearly shown, to L. J. Best. This deed had never been recorded, and was not produced, but the evidence discloses that no consideration was ever paid, but only promised upon condition that Pamperin should secure the title from the government. In view of the fact that Pamperin had no title, and of the conditions of the transfer, Best took nothing absolutely by the deed, nor did he engage absolutely to do or pay anything. The transaction, if it had any validity at all, was a mere contract to sell, and imported an equitable title only, to which this Department can not give legal effect.

On September 23, 1889, after the dissolution of the partnership between Witherell and Pamperin, Allen J. Witherell, in behalf of the partnership, treating the lot as partnership property, conveyed it to the Goddard-Peck Grocer Company in satisfaction of a partnership debt, and it is upon this deed of conveyance that this company bases its claim.

Thus, this Department is invited to invade the exclusive domain of the local courts and adjudicate rights of property of the citizens of the Territory of Oklahoma, controlled by local laws and arising out of transactions over which the government of the United States, through its executive branch, has no jurisdiction whatsoever. It is not competent for the Department to construe the partnership agreement between Witherell and Pamperin, and give effect to its terms, during the existence thereof, nor to settle its affairs after its dissolution.

Both the Goddard-Peck Grocer Company and Best claim through Pamperin, and while he was not a party to the hearing before the board, their rights, in any event, depended ultimately upon the estab lishment of Pamperin's original right through occupancy. The logic of their position is the admission of his claim. The warranty certifi cate presented by him to the board of townsite trustees is indisputably the "paper evidence of claim" contemplated by section 2 of the act of May 14, 1890, 26 Statutes, p. 109, and the prima facie evidence which it imports has not been opposed by any adverse claim within the competence of this Department to take cognizance of.

The decision of your office is, therefore, affirmed.

PUBLIC LAND-ORDER OF SURVEY.

GOWDY v. GILBERT.

A final decision of the Department directing the survey of a tract as public land, precludes the subsequent consideration of a claim thereto based on riparian ownership.

Secretary Smith to the Commissioner of the General Land Office, July 2, (J. I. H.) 1894. (G. B. G.)

The land involved in this case is lot 6 of Sec. 2, T. 15 N., R. 15 W., Grayling land district, Michigan. This description is based on a survey of said section, approved February 7, 1889, which was a second survey, or re-survey, of the section.

According to the original survey, approved June 28, 1839, the land in controversy was part of lots 2 and 4, as designated by the plat of such survey, said plat representing a lake as the western meander line. of lot 2, and the northwestern line of lot 4.

According to the re-survey of February 7, 1889, the lines of these lots, as above referred to, fall a considerable distance south and east of the lake shore, leaving a body of land containing 69.62 acres between said lots 2 and 4, and the shore of the lake as unsurveyed public land, which was then surveyed and is now known as lot 6, and this is the land in controversy in this suit.

It appears that the defendant herein, P. D. Gilbert, located as a homestead said lot 4, built his home at a point on said lot, as he believed, near the lake-shore, which point, under the last survey, is in lot 6.

Lot 4 was patented to Gilbert June 20, 1870, and by departmental decision of May 17, 1889, ex-parte Philoman D. Gilbert (8 L. D., 500), it was directed that the said Gilbert be allowed to make entry for lot 6 as an additional homestead entry, under the 6th section of the act of March 2, 1889, and that patent issue to him for said land on proof of compliance with the requirements of said act.

On June 18, 1889, the said Gilbert made homestead entry for said lot 6, which entry is still intact. On September 13, 1892, the plaintiff herein, A. C. Gowdy, filed in your office a protest against said entry, and requested that such entry be canceled, for the reason that it embraced a portion of the land entered by Gowdy more than twenty years ago.

Lot 2 was patented to the protestant Gowdy September 20, 1872. Said lot, under the survey approved June 28, 1839, contained 67.60 acres, and according to your office opinion,

Under the re-survey of section 2, approved February 7, 1889, the lines of the former survey of 1839, supra, were followed in every instance, and the boundary lines and areas of the subdivisions were in no wise changed by said subsequent survey, hence lot 2 now, as then, contained 67.60.

1801-VOL 19-2

This statement is made with special reference to the contention of protestant that the land in controversy had been previously patented to him, or more specifically stated, that lot 2 having been patented to him, it is contended that the western line of said lot was the lake-shore, that the land in controversy lying between the western line of said lot, according to the re-survey, and the shore of the lake, is land uncovered by the receding waters of the lake, and belongs to him by virtue of riparian proprietorship.

This is a question that has passed beyond the jurisdiction of the Department, and can only now be determined by the courts. The question as to the character of this land was fully determined by the Land Department before survey, and when said survey of lot 6 was ordered, the question as to the character of the land became res judicata. See Case v. Church (17 L. D., 578).

Gowdy's protest is therefore dismissed, and it appearing that the entryman Gilbert is entitled to said lot 6, by reason of his occupation and improvement, the decision appealed from is concurred in, and is therefore affirmed.

COAL ENTRY~EQUITABLE ACTION.

ANTHRACITE MESA COAL CO.

A coal entry allowed on defective declaratory statement and irregular proof may be equitably confirmed, in the absence of any adverse claim, where a proper declaratory statement is subsequently filed and the requisite additional proof furnished.

Secretary Smith to the Commissioner of the General Land Office, July (J. I. H.) (P. J. C.)

2, 1894.

The land involved in this appeal is the SE. 4 of the NE. 4, the NE. of the SE. and the SE. of the SE. of Sec. 17, T. 13 S., R. 86 W., 6 P. M., Gunnison (formerly Leadville) land district, Colorado.

It appears that coal entry No. 33, Leadville (Ute series), was made of this tract February 28, 1883, in the name of Wallace Bowman. This entry was made by one Howard F. Smith, under a power of attorney from one John H. Bowman, as attorney in fact for Wallace Bowman, appointing him-Smith-attorney in fact for Wallace Bowman. When this entry came up for consideration in your office, the attention of the local office at Gunnison was called to the irregularity by letter of June 7, 1884. They were advised that the regulations require the declaratory statement and affidavit to be made by the applicant himself, but as there was no adverse claim or conflict, it was ordered that Wallace Bowman be allowed to make his declaratory statement and affidavit and file the same nunc pro tunc. It was also required by said letter that proof of possession by the agent must be furnished, under paragraph 17 of the regulations of July 31, 1882 (1 L. D., 687); also that

the power of attorney from Wallace Bowman to J. H. Bowman was not in the files, and that "where an agent is recognized he must appear under "sufficient power of attorney,"" under paragraph 34 of said regulations.

Thus the matter seems to have rested until November 16, 1892, when your office advised the local office that on a re-examination of the case it was found that the following was lacking: "1. The affidavits of two witnesses and agent showing that said land is chiefly valuable for coal; and, 2, proper evidence of citizenship of said Bowman."

On March 26, 1893, your office again took up the matter, and by letter of that date to the local office said, inter alia:

I am now in receipt of your letter of March 7, 1893, inclosing certain evidence called for by letter "N" of November 16, 1892, and reporting that the evidence required by said letter of June 7, 1884, has not been furnished.

Inasmuch as said evidence is material, and claimant has failed to furnish the same, the entry is accordingly held for cancellation.

From this decision the Anthracite Mesa Coal Mining Company, the alleged transferee of Wallace Bowman, has appealed.

Since the appeal was taken there has been filed in this office the affidavits of Wallace Bowman, called for by your office letter of June 7, 1884, that is, a declaratory statement and the affidavit required by paragraph 32; also his affidavit of citizenship, and still another affidavit, in which he states that John H. Bowman was appointed as his attorney in fact "by a duly executed power of attorney, with full authority to substitute an attorney in fact to act for affiant." These affidavits were made in the State of New York, and are dated June 8, 1893. It is stated by counsel that the reason for delay in presenting them was owing to the inability of the transferees to ascertain his whereabouts.

It seems to me that in view of the fact that there are no adverse claims to the land, your office order of June 7, 1884, may be now carried into effect. The original power of attorney from Wallace to John H. Bowman has not been supplied, but the former swears it was duly executed. In addition to this, the presumption would be that satisfactory evidence was presented to the local office of his appointment as such attorney in fact. (Frederick Rose, 18 L. D., 110.)

In view of the provisions of Rule 100 (Rules of Practice) permitting the filing of additional evidence in ex parte cases these affidavits have been considered. To avoid the further delay incident to referring the question back to your office for further consideration, in the light of this evidence, it is my opinion that these affidavits may be filed nunc pro tunc, and the matter then referred to the Board of Equitable Adjudication for its action. It is so ordered, and your said office judgment is reversed.