tions by this company, pending in your office, unacted upon, that the same should be disposed of at the earliest opportunity, and that clear lists should be prepared for my approval of those tracts, which, in your judgment, can be properly approved at this time, and as any tracts which can not now be approved, the reasons therefor should appear.

PRACTICE-REVIEW-OKLAHOMA LANDS-HOMESTEAD ENTRY.

GUTHRIE TOWNSITE v. PAINE ET AL. (ON REVIEW.)

On application for rehearing ex parte affidavits may be properly considered where they present newly discovered evidence.

Facts not testified to at the hearing, but known to the applicant and in his possession at such time can not be considered as newly discovered evidence on application for review and rehearing.

In cases of conflicting evidence where fair minds may reasonably differ as to the conclusion that should be drawn therefrom, a review will not be granted.

A motion for review on the ground that the decision is not sustained by the evidence, will not be allowed, unless it is affirmatively shown that the decision in question is clearly wrong, and against the palpable preponderance of the evidence. Land selected and occupied as a townsite is not subject to agricultural entry. Want of good faith on the part of a homestead applicant is sufficient to defeat the application.

A settler on Oklahoma land can not evade the prohibitory effect of the statute, with respect to entering said Territory, through the assistance of one who enters the same prior to the time fixed therefor.

Secretary Noble to the Commissioner of the General Land Office, November 17, 1891.

I have before me four motions for review of the departmental decision of June 22, 1891, in the case of the Townsite of East Guthrie, North Guthrie and Capitol Hill v. Veeder B. Paine and other agricultural claimants, involving the E. of Sec. 8, the W. of Sec. 4, and Sec. 9, T. 16 N., R. 2 W., Guthrie, Oklahoma (12 L. D., 653).

One of the motions is made by Veeder B. Paine, involving the SW. of Sec. 9, one by Xenophon Fitzgerald, involving the NW. of said sec tion; one by Charles H. Eberlie, involving the NE. of said section, and one by Francis M. Karber, involving the SE. of said section 9.

In consideration of these motions, I will first examine the motions of Karber and Eberlie, which present practically the same questions. As to Eberlie's claim he admits that he entered Oklahoma on the 3d day of June, 1889, at which time the land he applied to enter, was occupied by townsite claimants for townsite purposes.

As to Karber's claim, it appears that he entered Oklahoma after 12 o'clock noon, on the 22d day of April, 1889, and about 3 o'clock in the afternoon of said day, he first made his claim to the SE. of said sec tion 9, and before and at the time he made his claim, there were many people on said land staking lots and doing such other acts as would

show their settlement on the land, and he admits that at the time he first went on the tract claimed by him, that he saw those people on it, and he could not have misunderstood their acts and conduct as indicating that they were townsite claimants for the tract.

The evidence clearly shows that both Eberlie and Karber settled upon the land, claimed by them respectively, after it had been selected and occupied as a townsite by the townsite claimants.

Under these circumstances and the well established facts proven at the trial, and the further consideration, that no new question or evidence is presented in either of these motions, it follows that said motions must be denied. Chas. W. McKallor (9 L. D., 580); Fort Brooke Military Reservation (3 L. D., 556).

This brings me to the consideration of the questions involved in the motions of Veeder B. Paine and Xenophon Fitzgerald, which were orally argued together.

The first ground of error assigned in Paine's motion is:

That the decision of the Hon. Secretary is not sustained by sufficient evidence and is contrary to the evidence adduced in said case.

In support of this ground, eleven different specifications of alleged errors are set out, in which extensive references to the evidence in the case are made. There is also filed an affidavit of Paine, and the certificate of the county clerk, relative to the assessed value of the improvements on the W. of said section 9; also the affidavits of three persons relative to the character of the land in question, and the good character of Mr. Paine.

Counsel for townsite claimants has filed a motion to strike said affidavits from the files, for the reason that the taking of testimony in the case was closed more than a year ago, and also, because the same were secretly procured, are entirely ex parte, and could be shown to be false in all material respects. The motion to strike out will be overruled, for the reason that under the rules of practice, in a motion for review and rehearing, such affidavits may properly be considered in cases where they present newly discovered evidence.

While the motion of Paine does not in distinct terms claim that the facts set up in said affidavits constitute newly discovered evidence, yet the only effect of considering them at all on review, would be to treat that portion of them wherein alleged new facts are stated, as new evidence. In order to entitle him to a review, he is required to bring his case within the rules and principles relating to new trials in the courts. Mansfield v. Northern Pacific R. R. Co. (3 L. D., 537). Rule of practice. 78.

All the facts detailed in said affidavits were in Paine's possession at the time of the trial, and in so far as they cover facts already in evidence, they are merely cumulative, and as such they are not sufficient to warrant a review. Wherein they cover facts not already testified to but known to him and in his possession at the time of trial, they

can not now be considered as, in any sense, newly discovered evidence. Bishop v. Porter (3 L. D., 103).

In Hilliard on New Trials, page 495, it is said:

As already intimated, a new trial will not be awarded on the ground of newly discovered testimony, when it appears that the testimony was or. ought to have been known to the party before the trial, and no sufficient excuse is shown for not procuring it. There must have been no delay; and the proof of diligence must be clear. It is said: "This rule is one of great practical importance, and binding upon the court. It is necessary to secure to litigant parties the termination of their legal controversies. Every facility is to be granted to the parties to present their cases fully at the hearing. This is their day in court; this the time to exhibit all their proofs. If they lie by, through over confidence in their own strength, or in a mistaken belief in the weakness of their adversary, and the result is against them, they must abide the consequences.

The Department held in the case of Cline v. Daul (11 L. D., 565), that an allegation of additional evidence, not newly discovered, if made for the first time on review comes too late to justify a rehearing. It was further said in that case:

Should this motion be granted on the grounds here presented, it would encourage the trial of cases by piecemeal, and allow a party to keep back a portion of his evidence for an emergency-a course which would be unjust to the opposing party, and a practice not tolerated in courts of law.

Paine fails to show any sufficient reason for not producing the evidence of all the facts within his knowledge at the trial, still giving him the benefit of claiming some of these facts as new evidence, he is clearly not entitled to a review based upon them under the rules announced by the courts and uniformly followed by the Department.

The several specifications under the first ground of Paine's motion, amount to the claim that the departmental decision of June 22, 1891, was erroneous and wrong in every respect as to the conclusion reached upon the evidence in the case.

In view of the great importance of the case, and the magnitude of the interests involved, I have carefully and patiently re-examined the evidence, and if by it I had discovered any sufficient error in the decision rendered, either upon the facts or the law, I agree with counsel representing the motion, that then it would be my duty to rectify, modify, correct, and if necessary set aside said decision in order to do justice between the parties. On the other hand, it is equally my duty to uphold and stand by such decisions as, in my judgment, correctly decide the rights of parties litigant.

Among the authorities cited by counsel for the motion, and claimed by them to support it, is the case of the Townsite of Kingfisher v. Wood et al. (11 L. D., 330). One of the questions involved in that case was whether an actual settlement, followed by residence and improvements, conferred a right of homestead that attached from date of settlement, and whether such right was or was not impaired by the subsequent occupation of the land by townsite settlers on the day of such settle

ment. It was held that the right of the homestead settler attached from the date of settlement, and that such right was not impaired by the subsequent occupation of the land by townsite settlers; but this holding was intended, and can only be understood, as applying to such homestead settlements, as were made in good faith for homestead purposes; in that case upon this point, the good faith of all parties concerned was assumed and the simple question determined was whether the prior settlement of a homesteader should be held to be paramount to the subsequent settlement of townsite claimants.

Another question involved in that case, however, was whether a settlement which was not made in good faith for homestead purposes, but with a view to speculation, confers any rights under the homestead law, and it was accordingly held that such a settlement for such purposes, does not confer any rights under said law. It is quite apparent that the Wood case, in so far as it has any bearing upon the case at bar, tends strongly to support the decision sought to be reviewed, rather than conflict with it in any respect. The good faith of Paine, in making his entry for homestead purposes, is found to be wanting, and it was upon this finding, as well as the fact that he received assistance by and through the acts of persons who entered the territory before the time fixed by law and the President's proclamation, and thus gained an advantage over his fellow claimants, that the decision complained of was based. In other words, that the change of horses on the way from the border to the land in controversy, the carrying of Paine's camping outfit, and the axe, which was used by him in making his settlement, and a part of his clothing, on the buckboard which was taken into the territory about 8 o'clock in the morning of the day fixed for opening the territory-four hours before the time fixed for settlers to lawfully enter said territory-amount to the same on principle as if he had provided for and used a relay of horses in reaching the land in question.

It is argued that Paine did not, as a matter of fact, own said buckboard; that he could have made his settlement without the use of the axe, as well as with it; that the change of horses on the route did not result to his benefit. However plausible these arguments may appear, they do not in my opinion, meet the case. It is not sufficient to say that Paine might have reached the land in question without the assistance rendered; that he might have made settlement without using the implements sent in advance. The question is not what Paine might have done, but it is what did he do, if anything, to gain an unjust advantage over others? The fact that he did exchange horses on the way; the fact that he did use the axe, which was carried on the buckboard, in making his alleged settlement; the fact that the buck board carried a part of his clothing; the fact that this buckboard and camping outfit, were to be turned over to him by the owners; and all the facts and circumstances tend to show that Paine not only intended and

planned to make use of them to his own advantage, and to the disadvantage of his fellows, but did so use them. It is also argued that Paine had to contend with the iron horse-railroad locomotive-in making the race for the land. Conceding this to be true, it does not furnish any excuse of justification for his illegally planning to take an undue advantage of his fellows starting from the same point he saw proper to make the start from, and actually taking the advantage of them as shown by the evidence.

Furthermore, it was a race of his own choosing, because he had ample time after the President's proclamation opening the territory, and before the time set for entering it for the purpose of settlement upon the public lands, to have traveled to the place where the railroad entered the territory and there entered upon the same train which carried hundreds of other settlers.

While it may be true that Paine had the right to avail himself of any advantage he might be able to command by reason of having a fast horse, provided he had only used that horse in reaching the land, yet he could not evade the prohibitory operation of the statute by and through the assistance of other persons, who to his knowedge had entered said territory before 12 o'clock noon, on April 22, 1889, prepared to assist him by furnishing a horse comparatively fresh, on which to complete his race to the land in question.

It was held in the case of Blanchard v. White et al. (13 L. D., 66), that the disqualification imposed by said statute, extends to an applicant to enter land, who remained outside of said territory until noon of April 22, 1889, but sought to evade the prohibitory operation of the statute through the assistance of another, whom he had before employed to enter said territory for such purpose. The assistance in that case consisted in having relays of horses stationed along the route to aid the party in reaching a given point in the quickest possible time. In this case Paine accepted the same kind of assistance as was rendered in that case. The only difference seems to be, in that case the assistance was arranged for in advance; in this case the evidence does not directly show a pre-arranged plan so to do, but the circumstances justify that conclusion. Among these is the fact that when Paine came in sight of his friend, who was with him in the morning, and who had entered the territory in advance on horseback, he was dismounted, standing by his horse and about the time Paine came up he noticed that Paine's saddle girth was broken and suggested a change of horses.

In the case of Grigsby v. Smith (9 L. D., 98), cited by counsel for the motion there was no dispute as to the material facts in the case. Grigsby, who was a qualified pre-emptor, had settled on the land August 1, 1881, and continued to reside thereon with his family, until he made final proof, at which time he had resided upon the land continuously for a period of six months. After making his.proof he moved away from the land, and also moved his buildings and placed them upon another tract