The Guthrie daily leader. [volume] (Guthrie, Okla.) 1893-1996, 1898-06-16
MERITS OF The CASE
Judge A. N. J Crook Tells
Some Inside Facts Of the
East Guthrie Litigation.

started lToh hht lihS hA WIZ ~ Nt'Nh''t
day after u o'clock on horseback. 1t
appears in evidence that Mr.. Payne
had a friend who s.ated tha. he aia
not desire any OF the public domain,
and would ride ahead Of time and ''see
the fun
With this ostensible object in view,
Veder's friend left the meridian line
about o'clock In the forenoon OF April
22, 1889, on the road 20 Guthrie. At
the proper time, Mr.. Payne testified,
he left the line on horseback broke
the girth OF his saddle, and fortunately
found his friend on the roadside resting
about half way to Guthrie. Thereupon
he changed horses with his friend and
resumed his journey, reaching Guthrie
about 40 minutes after 10 o'clock.
Clustering around this transaction is
an element of advantage that would,
before a Jury, stick to his back like the
shirt OF Nessus. The first thing that
occurs to the mind is, Was Payne's
friend RESTING or WAITING?
In connection with this feature Of
Payne's reaching Guthrie on that occa-
sion, IL Is manifest that his friend
changed his plans il it was his inten-
tion TO come TO Guthrie when he left
the line before noon OF the opening
day. His horse was all right and his
saddle was in good coDdition. He was
accustomed TO horseback riding, and
OF course was not tired, having ridden
only six or seven miles in some three
hours or more. Then what did he stop
for unless he expected 10 see a friend
in need OF T. esh horse2 That Mr..
Payne gained advantage over other
home seekers by changing horses and
saddles with his friend is not de-
bAtable. OF course the horse of his
friend was considered by Mr.. Payne TO
be in better condition than the one he
started on, otherwise he would In less
than a minute have changed saddles
only. There is a long line OF land de-
cisions holding that man cannot hold
a homestead IL he obtains the assist
ance OF an agent or friend in securing
the same. Will il be denied that Mr..
Payues friend did assist him in reach
ing Guthrie, in the light of the testi-
mony eiicited in the contest proceed
ings between himself and the city
| certainly think not. IL appeared
in the contest proceedings that Mr..
Payne was familiar with the location
of the land in the vicinity OF Guthrie.
This being the case why did he stop
Oh bad quarter fer farming purposes
when by few minutes ride he stood a
chance TO secure as fine bottom land on
the Cottonwood as a crow ever flew
over2 This, doubtless, was one Of the
reasons why the Secretary of the In
terror decided that the land he did
take was taken for speculation. That
finding OF fact is conclusive and bind
ing on the courts. Mr.. Payne having
been beaten In the Land Department,
has co nmeneed wild goose chase by
mandatory injunction against Town
site Board number 6, in the Territorial
Court, by asking for a decree in his
favor declaring that the board execute
deeds to the respective lot occupants
in trust for him.
There are three valid reasons why
this can not be done
First. Township Board No / Is
functus ofiicio, and the members, ex-
cepting one, are not residents OF Okla
homa
Second. All the lots claimed by
Payne have been decided and his name
is not mentioned in any OF them
Third. He had no legal authority
to bring suit against the townsite
board to compel the board TO set aside
mandatory Instructions contained in
the patent from the government
In the case OF United States VS.
Maxwell, - Fed Rep 10, it was de
elared as the opinion OF the court that
"All Of the officers OF the government
from the highest TO the lowest are
but agents with delegated powers and
II they act beyond the scope OF those
delegated powers their acts do not
bind the principal.
In the light OF this express declara-
ton of the law by the highest tribunal
in the land, governing officers as
agents OF the government. upon what
theory OF law does he expect TO obtain
decree from the territorial courts
ordering and directing the township
board TO disobey their positive in
structions as agents of the govern
ment, and instead OF deciding the lots
TO the respective lot owners as author
ised and directed Ia the patent, deed
the same 10 him.
In the case OF the United States
against Schurtz, lO2, u. s.. 3qG, the |
supreme court held that Congress
has also enacted a system OF laws by |
which rights TO these lands lpublc) |
may be acquired and the title OF the |
government conveyed TO the citizen. !
This court has, with strong hand !
upheld the doctrine that so long as the
legal right 10 these lands remain in
the United States and the proceedings
for acquiring ii were as yet in heri,
the courts would not interfere to con
troll the exercise OF power thus vested
in that tribunal 10 that doctrine we
still adhere"
la the case OF johnson against
Townsley, II was decided, 10, Wall, |
70, That the judiciary will not in
terfere by manuamus, injunction, OF !
otherwise with the officers OF the land !
in the exercise OF their /
duties while the matter remains in |
their hands"
IL was also held in the case OF Gaines
against Thompson, z, Wall, 352, That
a public officer TO whom public duties
are conhded by law is not subject 10
control Of the courts ia the exercise OF
the judgment and discresion which
the law reposes in him as part Of his
Official function"
Nor will proceeding Of this charae-
ter, BE granted where IL is reason
able 10 presume that there are per
sons at the time In possession under
another title and therefore should !
have an opportunity 10 defend It," S.
Wall, sos
The court used the following lang
uage in passing upon the qu estion In |
the above case, " McKensie was in
possession when the entry was made
Ia May, 1881, and was there in 1886