The Wichita daily eagle. [volume] (Wichita, Kan.) 1890-1906, 1890-04-15
BERRY VS.. BEN LEE.
Decision of the Kingfsher Land Office
Unlawful Sooner is no Defense

eral months with the hope that the de-
partment at Washington would indicate
the construction 10 be put upon the clause
enter upon and occupy. This case was
submitted upon an agreed statement Of
| facts, which briefly stated, are as fol-
| lows:
James Ben Lee is a civil engineer. On
the 10th day Of April he drove into Oar
llngton, which is on the Cheyenne and
ArapahOe reservation, to get his buggy
mended at a blacksmith shop. While
there Indian Agent Williams, knowing
him to be a surveyor, by considerable
! persuation engaged him to go into Okla
hOma and survey some Indian allotment
lands for Ben Keith, Peter Shields and
John Poisal The agent had received in
structi0ns from the Indian department at
! Washington to have these lands surveyed
and the corners established prior to noon
of April %, 1889, so that they would not
be entered upon by the intending settlers.
Armed with the written instructions OF
the agent, and an order from the Fort
Reno military commander, Colonel
Wade, authorizing him to enter the Ok
lahoma country with his assistants for
this purpose, he proceeded to the land
described, began the surveying of the
same, and got the work so far along that
his assistants could complete it within
the time, and he returned Sunday fore
noon Of April q, and made report of his
work TO the agent He did not fe-enter
the Oklahoma country until after II
o'clock noon, April %, when he came in
with other intending settlers and took a
homestead. When he presented his APP
plication to enter this land the facts
above recited were set out therein, and
his application was accepted and placed
on record. II is agreed that his entry
into the territory TO survey the Indian
allotment lands was not a subterfuge
TO gain admission therein, that he did
not, during that time, center upon and
occupy" the land in controversy,
that he acted in good faith through
out, and that he was, on the 22nd
day of April, a qualified homestead
entry man. James j. Berry contested
his right to the land, on the ground that
he entered the Territory las before stated,
IN violation of the act OF congress of
March 9. 1889. and the presidents
proclamation Hereunder of March %.
The full text of the local office decision
is as follows:
Under the recent construction of the
act, of March ., 1889, in the case of
Blanchard VS.. White and Cook, COpp's
land owner, March 10, 1890, the only
point to be considered in this case. is
whether the defendant. James Ben Lee,
comes within the only ''class of persons"
who are prohibited from acquiring title
to lands in Oklahoma under the clause of
that act which reads as follows: THAT
each entry shall be in square form as
nearly as practicable and no person per
mitted to enter more than one quarter
section thereof but until said lands are
open to settlement by proclamation of
the president, no person shall be per-
mitted to enter upon and occupy the
same, and no person violating this
provision, shall ever be permitted to
enter any of said lands. or to acquire any
right thereto" The honorable assistant
commissioner has construed this clause
to mean that: ''AIl persons who, from
and after the approval of the act afore
said. and prior to II o'clock. noon, Of
April %. 1899, should enter upon and Oc-
cupy any portion of said territory, with
the intent TO make selections, settle upon
or enter any of the lands therein" 1T
was not the intention of congress" says
the assistant commissioner, ito permit /
any person, no matter who the person /
might be, under any preteXt, color of |
legal right. in any official capacity, or
by any evasion of the law or subterfuge, |
to enter said territory, to make any |
selections. settlements or claims to any
Of said lands prior to the time fixed.
In discussing in that case the presence |
of defendant White in the territory, he |
uses this language: 1T is folly to under !
take TO make any one knowing the cir !
to believe that he was not in |
the territory prior to II o'clock, noon, /
Of April %. with the intent to enter .
lands therein, and that he did not prior .
to said time select the land in queS- /
ton, which he afterwards entered .
to said selection" And the F.
assistant commissioner continues, be /
ing there for such purpose he comes /
within the class of persons, prohibited T.
from entering any of the lands in said .
territory, or from acquiring any right /
thereto under the homestead law"
In the case of Plaintiff Blanchard. in
the case referred to, the assistant com
missioner found that his presence III the
territory. prior to l. O'Clock noon. April
%. ostensiblv as railroad employee, was
a ''pretenSe' and a sham. assumed
for the purpose OF evading the law and
gaining an admission into the territory.
to select and enter lands ahead Of
others, and that selecting and enter
ing land at that time raised a fair pre-
that he entered the territory
for that purpose. and he further found
that the plaintiff. Blanchard, entered
upon and occupied said territory before
the hour of - o'clock noon. of April %.
1889. for the purpose and with the III
tent TO select lands therein.
In that case it i also found IN the case
IF White. that. being in the territory
prior to y o'clock noon, April 22nd. IN
Inc capacity of a deputy United States
marshal" that he also entered upon and
occupied said territory at the same time
.0r the purpose of making selection ana
entry of land therein, and that while
here. as aforesaid, ne did make selection
IF the land in question-priOr 10 y
o'clock noon. of April 22nd. 1880
We have quoted thus literally from
he opinion in the Blanchard-WhIte-
'ook case. for the purpose of showing
me construction put upon the law by tine
assistant commissioner OF the general
aud office. which she defendant. james
BEN Lee. Is charged. in the case now un-
Ter consideration. with having violated,
20 as to disqualifv INN from acquiring
itle TO any Of the lands IL Oklahoma.
lnder the homestead law. Whether or
lot the honorable assistant commission
rs construction 81 the law j. correct. II
$ not our business 10 inquire or question:, /
Ne are bound bv II. At al events for
he purposes of this case, We are SITS
led with IT,
And now the question for us to decide
=. whether the defendant, james b-n
%