to appoint agents for Colorado and Wyoming. His authority was in writing, as he stated, but no objection was made to his evidence concerning it, and, having broadly stated the possession of that authority, it was for the company to show the absence of power with reference to fixing the rate to be paid the agent, if they would get rid of the presumption which follows from the possession of authority to appoint, which does not otherwise appear. This being true, it simply remains to determine what the contract was, and whether the evidence concerning it was legitimate.

At the oral argument it was suggested that the question asked the witness respecting the details of his contract was objected to, and it was argued, the contract being in writing, no parol evidence of its contents could be given. We concede the law, but we do not concede the fact respecting the record. It is quite true, when the first questions were asked concerning it, they were objected to, but subsequently, as appears from the bill of exceptions, though it is not stated in the abstract, after these objections had been put and sustained a general query was put as to the party with whom the contract was made and the terms of it. Witness was asked to state what the contract was. To this inquiry there was no objection, and it is therefore unavailing for the plaintiff to urge that the evidence should not have been received without a basis, to wit, the proof of a written appointment, and the demonstration thereby that there was no provision in it respecting terms. The plaintiff was permitted, without objection, to testify what the contract was. The company produced its own witness, and he testified respecting the contract and its terms, denying in toto what the plaintiff had said, except as to one very material item, which we shall refer to. When it came to the defendant's case, it produced the appointment, and produced Harrison, and from the appointment and Harrison's evidence it clearly appears there was nothing in writing respecting the terms on which Morris was soliciting insurance, and nothing by which his compensation was to be measured and accepted. Since this is true, and the contract was silent about it, it necessarily follows, the matter having been left out of the writing, it may be made the subject of parol testimony. This makes the case wholly different from the one to which we have been referred, wherein there was a specific, definite, and written contract respecting the territory, and a distinct statement of the commissions which the agent was to receive. Herein there is nothing of the sort. We are compelled to resort to what was done by Harrison and Morris at the time of the appointment in order to find out what commission he was entitled to and the terms of the engagement. The case was tried on a somewhat curious hypothesis, and was almost made to turn on the use of the word

"exclusive" by Morris, and a denial and disagreement in that respect by Harrison. Morris gave evidence that the contract was that he was to receive 15 per cent. commission on all business done in Pueblo by the company, and his agency was to be exclusive, which would entitle him, perhaps, under some circumstances,-though this we do not decide, to commissions on all policies which might be issued in the town. We do not state this to be the law, because there are many circumstances which we can conceive which would make it doubtful and inequitable, and which would compel the party to resort to an action in damages, and not to an action for specific percentages on policies issued by other agents. However this may be, Morris further testified that it was agreed he should receive a commission on all renewals of policies which he had originally secured. It is a somewhat singular circumstance that, while Harrison denied the exclusiveness of his agency, he in no way denied that he was entitled to his percentage on the renewals of the original policies. We resort to the bill of exceptions to determine this fact, it not appearing from the abstract, and we find Morris directly testified he was entitled to his percentage on the renewals, and Harrison in no manner disputed it. When we determine, as we do, that parol testimony was admissible to determine what the agreement was, and it appears that, whether you call it exclusive or otherwise, Morris was entitled to his percentage on the renewals of the policies which he had originally secured, and the verdict accords with it, we see no escape from the affirmance of the judgment. We are not entirely certain we should agree with the lower court in his opinion, and, like him, would have rendered a verdict for the defendant on the testimony offered. Whether this be right or wrong, the matter was submitted to a jury, which found with the plaintiff, and, unless some legal error inheres in the record which compels the reversal, we must necessarily affirm the judg ment. As we read it, however, we are quite inclined to the opinion that the evidence, with reference to its extent and preponderance on the essential facts, coupled with the admissions found in the pleadings, is with the plaintiff. At all events, there is no such preponderance supporting the defendant's case as entitles us to set the verdict aside because against the weight of evidence, or apparently rendered from passion and prejudice.

There are some other matters suggested in the briefs of counsel which possibly we would have noticed had they been insisted on during the oral argument. We do not regard them as of any significance or importance, nor do we think any one of them or all put together constitute reversible error, and, under these circumstances, we may be excused from taking the time essential to the formulation of an answer to them. There

gard as the essence of the case, and those upon which it should have been determined. They may be briefly stated as follows: First, the conclusions and inferences made by a secretary of the interior from the facts found in a contested claim to a tract of public land do not preclude a court of equity from reviewing and correcting the same, when, in the opinion of the court, there has been a misapplication of the law to the facts, which results in giving to one man the land which, upon the undisputed facts, should go, under the law, to another; second, where all the facts found by the land department of the interior are, in a proper action, presented to a court of equity, it may take the facts so found, and apply the law to the facts in its own way.

It was said in Johnson v. Towsley, 13 Wall. 86, 20 L. Ed. 487, that: "We are not prepared to concede that when, in the application of the facts as found by them, they, by misconstruction of the law, take from a party that to which he has acquired a legal right under the sanction of the laws, the courts are without power to give any relief." And it was said in Shepley v. Cowan, 91 U. S. 340, 23 L. Ed. 428: "The officers of the land department are specially designated by law to pass upon proofs presented with respect to settlement upon the public lands. If they err in the construction of the law applicable to any case, their rulings may be reviewed and corrected by the courts when a controversy arises between parties, founded upon their decisions." And in Moore v. Robbins, 96 U. S. 535. 24 L. Ed. 851, that: "As to facts upon which their decision is based, that decision is conclusive, even in courts of justice, when the title afterwards comes in question; but in this class of cases, as in all others, there exists in courts of equity the jurisdiction to correct mistakes, to relieve against frauds and impositions, and, in cases where it is clear that those officers have, by a mistake of the law, given to one man the land which, upon the undisputed facts, belonged to another, to give appropriate relief." And in Marquez v. Frisbie, 101 U. S. 476, 25 L. Ed. 801, that: "If it can be made entirely plain to a court of equity that upon facts about which there is no dispute, or no reasonable doubt, those officers have, by a mistake of the law, deprived a man of his rights, it will give relief." And in Baldwin v. Stark, 107 U. S. 463, 2 Sup. Ct. 474, 27 L. Ed. 527: "Where the latter [the officers] have clearly mistaken the law of the case as applicable to the facts, equity may give relief." And in Bohall v. Dilla, 114 U. S. 47, 5 Sup. Ct. 783, 29 L. Ed. 63, that: "In consequence of erroneous rulings of the officers of the land department upon the law applicable to the facts found, the right of the settler was denied him." The case of Lee v. Johnson, 116 U. S. 48, 6 Sup. Ct. 250, 29 L. Ed. 571, was a case where the settlement was admitted to have been made for the benefit of another, contrary to the statutes; and

it was said upon this question as to whether residence had been sufficiently personal and continuous to preserve his right, if in fact he had initiated any, and whether or not he had abandoned the land: "The finding of the secretary upon any of these matters of fact cognizable by it has been expressly affirmed. If, however, those officers mistake the law applicable to the facts, or misconstrue statutes, and issue a patent to one not entitled to it, the party wronged can resort to a court of equity to correct the mistake, and compel the transfer of the legal title to him, as the true owner."

In the opinions handed down in this case, no mention is made of this power of the court, and the argument, reasoning, and citations have been made solely with a view to uphold the conclusiveness of findings of fact made by the secretary of the interior; and I find that in each case the facts in dispute were upon the questions of the settlement and improvement, and the facts about which cluster the only legitimate test of good faith. And this proposition has been made prominent in the opinions, to the exclusion of any consideration of the main and only contention of the plaintiff in error. In his petition it is alleged that the conclusions and inferences made by the secretary of the interior are warranted neither by the evidence nor by the facts found, that some findings are unsupported by any evidence, and that, admitting all the facts as found to be the facts proven, they do not, under the law properly applied, support the conclusion reached by the secretary, nor warrant the "theory" upon which it is based. In Quinby v. Conlan, 104 U. S. 425, 26 L. Ed. 802, it is said that: "The laws of the United States prescribe with particularity the manner in which portions of the public domain may be acquired by settlers. They require

personal settlement upon the lands desired, and their inhabitation and improvement, and a declaration of the settler's acts and purposes to be made at the proper office in the district within a limited time. * By them a

land department has been created to supervise all the various steps. They are required to receive, consider, and pass upon proofs furnished as to the alleged settlements upon the land and their improvement. For mere errors of judgment as to the weight of the evidence on these subjects the only remedy is by appeal to the superior of the department. It is only when those officers have misconstrued the law applicable to the case as established before the department that the courts can, in a proper proceeding, interfere and refuse to give effect to the action." Applying this rule to the case under consideration, it is to be observed that after weighing the evidence on these subjects, as well as upon the subjects pertaining to homesteads in Oklahoma, the "superior of the department" found as a fact that all the requirements mentioned in Quinby v. Conlan, supra, were complied with by plaintiff in error in settling on the

land claimed by him, and this court should have decided this question: Do the facts, as established before the department, entitle plaintiff to the relief he seeks? "A finding of fact by the land department that a homestead entryman has complied with the requirements of the law as to settlement and improvement is conclusive upon the courts." Railway Co.

v. McCormick (C. C.) 89 Fed. 659. It is, then, the law that the findings of fact upon the weight of disputed evidence are final. What facts were found in the present case? The record before the court shows the facts found by the commissioner of the general land office, in these words: "Veeder B. Paine [the plaintiff in error] was a qualified entryman, and entered Oklahoma in a proper manner, made his selection in advance of the townsite claimants, performed all the acts of settlement possible under the circumstances, erected a home as soon as he could, improved and cultivated the land as far as practicable, offered his filing at the proper land office within the prescribed time, and has continued to live on his claim," and concludes that "his good faith is placed beyond controversy." Since the "superior of the department" ac cepted these facts,-did not reverse or change any of them,-they are the undisputed facts, and the facts found to which the law must be applied. Ignoring these facts, which compel a conclusion of good faith, the secretary proceeds to make inferences not in evidence, in the following manner: "Every intelligent person is aware of the fact that for the last half century the establishment of a United States government land office was equivalent to the foundation of a town of greater or less magnitude. Wherever a spot was selected for a land office, that spot became the center of population, it became a town, and the land ceased to be in a condition where it could be used for purposes of agriculture. Of all the thousands of eager, active, and intelligent men who had collected on the borders of Oklahoma prior to 12 o'clock noon on April 22, 1889, there was hardly one who was ignorant of the fact that a government land office had been established at Guthrie, and of the resulting fact that a town would be established there; and already predictions of its future greatness, as the capital of the territory, had been indulged in. The waiting crowds knew all these facts, and they knew that the land in controversy must be used for the homes, the business, and the trade of the people who would compose the population of this coming town. * Taking the whole history of this case into consideration, I am unable to arrive at the conclusion that Paine, either in the conception or execution of his settlement on this land, acted in good faith, as a bona fide claimant under the homestead law; and, in the absence of good faith, no claim can be recognized. All the facts indicate that the claim was taken for speculative purposes only, to enable him to dispose of this land for town-site purposes, and that it was

*

not taken for agricultural purposes and for the purpose of a home, or, at least, for a home as contemplated by the homestead law,"and concludes: "The claim of Paine must be rejected, on the theory that he seeks to make this entry for speculative purposes,-makes it in order that he may sell it to town-site occupants, on account of its being occupied for purposes of trade and commerce."

case.

At the hearing in the land office, it was sought to disqualify the homestead claimant on account of a supposed relay of horses placed along the route; and this, if established as a fact, would have disposed of the The undisputed evidence and the several decisions in the land department show that after riding about eight miles, and when nearing the land in dispute, and well in advance of all those who left the line with him, none of whom were town-site seekers, he overtook a friend (one Jerome, of Michigan), who was on his way to take the south-bound train at Guthrie station, which he did that same day. Upon riding up to him, Jerome noticed that the saddle was broken, and suggested to Paine that he ride his horse the short distance remaining. Paine did so, and Jerome, after fixing the saddle, rode into the station, and over the claim in controversy, before any town-site settlers had come upon the land in dispute; the trail from the east to Guthrie station passing across this land. Concerning this incident, resulting from an unforeseen accident, the secretary does not find any prearrangement, and holds against the homestead claimant on the adjoining quarter section, who met with no accident on his ride over the same route, as follows: "The remarks applicable to Paine apply with equal force to Fitzgerald, in the consideration of his claim to the northwest quarter of section 9. While the incidents connected with the trip of Paine did not take place in the trip of Fitzgerald, yet he possessed the same knowledge that the tract claimed by him would be used at once for town-site purposes." The secretary also ruled that Paine, notwithstanding this incident, and others of which he speaks, might have lawfully settled upon the other lands over which he passed, and that he might successfully have held parcels of the quarter section in dispute "in common with other lot claimants." This he might not do if in any manner disqualified by disobedience of the law and the proclamation of the president. The commissioner having held Paine qualified to take the entire quarter section as a homestead, and the secretary having agreed that he might lawfully lay claim to a part, it appears that the theory of speculation attaches to this transaction only because of the fact that, soon after the homestead settler's rights attached, a considerable number of persons determined to go upon it and divide it into lots and blocks. To other tracts adjoining the 320 acres, known as "Guthrie Proper," on the north

and south, where no persistent town-site settlements were made, the theory of speculation did not attach, and homestead entry was permitted, although, if the secretary's reasoning is sound, and his conclusions are valid, these lands, being equally near to the government land office, equally, "in the eyes of every intelligent person, became the center of population, it became a town, and the land ceased to be in a condition where it could be used for purposes of agriculture." It cannot be denied that the secretary misapplied the law to facts in holding, as he did, that "the official acts of the president had given notice to all the world of the fact that the lands [referring to the half section adjoining Guthrie proper on the east] would be used for purposes other than agriculture"; "that Paine knew this"; "that he started for this town site." It was only by treating this land as a town site, and not open to homestead settlement, that the prior homestead settler could be cut off, and to this ruling, that it was reserved by the acts of the president for town-site purposes, was attached the speculative theory. This was error of law, subject to review, and should have been reviewed and reversed by this court. "Whether lands are within the limits, or subject to a grant for public improvements, is not a question of fact, within the rule that the judgment of the land department is final on the facts." U. S. v. Coos Bay Wagon-Road Co. (C. C.) 89 Fed. 152.

Whether the land involved in this case was or was not within the limits reserved for town-site purposes is, then, a question of law. This land was not a town site. The president had given no such notice by any official act or otherwise. On the contrary, it could not be used legally as a town site, and the president and the acts of congress invited settlement thereon. The 320-acre limitation to town sites should have controlled the disposition of this case in the interior department, and, failing there, this court should not have neglected to pass upon this vitally fundamental proposition which, although urged in brief and oral argument, has thus far not been treated of or met in the opinion of the court. Under the act of congress of March 2, 1889, it is very clear that no more than 320 acres of land could be entered for town-site purposes at any one place. The interpretation of the act by the interior department, as promulgated by circular letter of instructions sent to registers and receivers before the opening, printed in 8 Land Dec. Dep. Int. 336, is as follows: "Only three hundred and twenty acres (one-half section of land) can be taken at one point, no matter what the number of inhabitants." The petition alleges, the record shows, and the demurrer admits that Guthrie, the E. 1⁄2 of section 8. was the 320 acres first selected and occupied as a town site. By its selection and occupation, the maximum legal area limit was exhausted at this point, and all the

rest of the public lands included in the proclamation of the president, including the quarter sections of land adjoining the 320 acres reserved for town-site purposes, and including the quarter section claimed by the plaintiff. Immediately adjoining the town site of Guthrie was the W. 1⁄2 of section 9, which had been segregated from the public domain by acts of settlement, personal occupation, and presence of qualified homesteaders, before any town-site seekers went upon it in pursuance of a plan to evade and circumvent the law of congress by establishing so-called separate towns. That those who took forcible possession of the two homestead claims on the W. 1⁄2 of section 9 were promoters of an unlawful scheme, by unlawful means and force, is shown by the record, and by the finding of fact by the secretary, as follows: "The application filed April 26, 1889, by T. H. Soward, mayor, et al., to enter the west half of section nine as the town site of East Guthrie, having been made in the interest of men, many of whom entered the territory prior to the time fixed by the proclamation of the president, in violation of the act opening the same, it must be rejected." By reason of the filing of the application referred to, which was prior to the application of the homestead claimant only, because it was taken into the land office through the mail, while the settler was forced to stand in line, awaiting his turn, the homestead claimant's application to enter was rejected, and wrongfully rejected, by the local land office, the town-site application having been received and filed in violation of the instructions of the secretary.

The questions which were ordered to be inquired into at the hearing before the register and receiver, under the limitation clause of the act of congress, were: (1) Priority of settlement; (2) the qualifications of the homestead claimants to take land in Oklahoma; and (3) the status of the Guthrie town applications. In his letter ordering the hearing, the commissioner of the land office said that: "I am inclined to believe that these applications include different portions of one and the same town. You will issue notice in accordance herewith, and require it to be served upon the adverse claimants to these two sections of land; the burden of proof being upon the former to show the alleged facts reserving the lands from disposal as homesteads." As to the land claimed by plaintiff in error, such reservation was not shown. The only reservation is found in the erroneous conclusion of the secretary that the acts of the president had "reserved" it for a town site, by locating a government land office in the next section. It is my belief that every quarter section of land adjoining the half section which was alone "reserved" for town-site purposes, and the whole of the remainder of the public lands then opened, were by the act of congress open to settlement by homesteaders,