Colonel RooTE. I am coming to a case in that connection, the case of Union Oil Co. v. Smith, that has nothing to do with the Pickett Act.

The CHAIRMAN. Is that under the Taft withdrawal?

Colonel RooTE. That is the case of Union Oil Co. v. Smith, in 249 United States, 337. I want to say that the claim is good without discovery, and that the possessory right is a valuable right, recognized by the courts and by the United States Government.

Mr. RAKER. As against anyone else except the Government? Colonel ROOTE. As against anyone but the Government; yes, sir. Let me read what this says. I am going to read you a quotation from the decision of the court in the case of Union Oil Co. v. Smith (249 U. S. 337). The court said:

"And it has come to be generally recognized that while discovery is the indispensable fact and the marking and recording of the claim dependent upon it, yet the order of time in which these acts occur is not essential in the acquisition from the United States of the exclusive right of possession of the discovered minerals or the obtaining of a patent therefor, but that discovery may follow after discovery, provided no rights of third parties have intervened."

In the same case the court further said:

"In the California courts the right of a locator before discovery while in possession of his claim and prosecuting exploration work is recognized as a substantial interest, extending not only as far as the pedis possessio but to the limits of the claim as located; `so that if a duly qualified person peaceably and in good faith enters upon vacant lands of the United States prior to discovery but for the purpose of discovering oil or other valuable mineral deposits, there being no valid mineral location upon it, such person has the right to maintain possession as against violence, fraudulent and surreptitious intrusions so long as he continues to occupy the land to the exclusion of others and diligently and in good faith prosecutes the work of endeavoring to discover mineral thereon." Mr. LARSEN. Inasmuch as you turned toward me in emphasizing the latter part of that quotation, let me give you my view on that. It is stated that a man always has the right to protect his property, even if necessary, to the taking of life. But it breaks the continuity, so he can never obtain title by prescription.

Colonel ROOTE. I merely looked at you, Mr. Larsen, because it did touch on that question.

Mr. Chairman, I understand Mr. Barkley has to leave the city to-night and would like to make a brief statement to the committee, and I should be glad to yield to him now.

The CHAIRMAN. We will hear Mr. Barkley.

ADDITIONAL STATEMENT OF MR. K. C. BARKLEY.

Mr. BARKELY. I might state, Mr. Chairman, that I have inserted in the record the documents which I requested permission to insert, that is, the permit and the title we hold under. Those documents were inserted at the appropriate place.

There was some discussion yesterday about the dates of the filing of the suit, and I got those dates correctly. Leave was asked to file a bill on October 27, 1919; leave was granted to file a bill on November 10, 1919; a bill was actually filed on the 8th of December, 1919.

Gentlemen, what I especially desire to call to your attention at this time

The CHAIRMAN. You are referring to the injunction proceedings in the courts of Texas?

Mr. BARKLEY. No; I am referring to the Supreme Court proceedings. What I want to call to your attention particularly at this time is the fact that you have an exact precedent for the relief we now ask for, and I do not think that what we request could be placed in any more appropriate language than that used by Mr. Justice Harlan in deciding the Greer County case, and the act of Congress authorizing the suit, and the subsequent legislation by Congress.

Congress, in section 25, page 92, 26 Statutes at Large, provided as follows: "That inasmuch as there is a controversy between the United States and the State of Texas as to the ownership of what is known as Greer County, it is hereby expressly provided that this act shall not be construed to apply to said Greer County until the title to the same has been adjudicated and determined to be in the United States; and in order to provide for a speedy and final judicial determination of the controversy aforesaid the Attorney General of the United States is hereby authorized and directed to commence in the name and on behalf of the United States, and to prosecute to a final determination, a proper suit in equity in the Supreme Court of the United States against the States of Texas."

We have been criticized for following Justice Van Devanter's opinion when he was Solicitor General, but notice this language:

66

Setting forth the title and claim of the United States to the tract of land lying between the north and south forks of the Red River where the Indian Territory and the State of Texas adjoin, east of the one hundredth degree of longitude."

Mr. DYAR. Is that all?

Mr. BARKLEY. No; it is clearer with our contention than that. It goes on: "and claimed by the State of Texas as within its boundary and a part of its land, and designated on its maps as Greer County, in order that the rightful title to said land may be finally determined."

Greer County was located on the maps of Texas as from the middle of the north fork to the middle of the south fork, and that was what Congress authorized the petitioner to sue for. We oil-field lawyers construe that to mean that if the Texas lawyers had overlooked the specific boundary they would be bound by the boundary of Greer County down to the point that was given, and that they can not extend that adjudication on down the river.

But what did the justice who decided that case say? I want no more appropriate language for what we ask now.

Mr. RAKER. What is the volume of the reports and the page?

Mr. BARKLEY. This is on page 89 of 162 United States, and is from the Greer County case. Mr. Justice Harlan said:

"It is also said that many titles to land in the disputed territory are held under the State "-that is, Texas-" and that much confusion may follow, and injustice be done to individuals, if the claim of the United States be sustained. On the other hand, it is to be inferred that there are many settlers in the disputed territory who assert ittle to land under the United States. It appears in evidence that in 1873 and 1874 a part of that territory was sectionized under the authority of the general Government.

"We suppose that Governor Roberts referred to that fact when, in his message of 1883, he said that the authorities of the United States had established an initial corner on the south fork of Red River, on the line claimed to be the one hundredth degree of longitude, had sectionized the country east of

that line and protected it from settlement of white people as a part of the Indian Territory.' He further said: 'Application was made to me to know if I would sign the patents, if certificates were located and surveyed in Greer County. Under the then existing circumstances I felt it to be my duty to discourage such locations, as they might be to our prejudice in the settlement of our claim with the United States, when the merit of it could be more fully ascertained.' But whatever may be the facts bearing upon this point, our duty is to determine the present issues according to the settled principles of law, without reference to considerations of inconvenience to individuals residing in the disputed territory."

Now, note:

"We can not doubt that the Congress of the United States will do all that justice requires to be done in order to avoid any injury to individuals that ought not to be inflicted upon them."

That is exactly what we are asking.

The CHAIRMAN. He is talking about conflicting claims?

Mr. BARKLEY. Absolutely. He further says:

"In the argument it was suggested that this court ought not to forget how much was added to the power and wealth of this Nation when Texas, with its imperial domain, came into the Union, and her people became a part of the political community for whom the Constitution of the United States was ordained and established. This fact can not, of course, be forgotten by any American who takes pride in the prestige and greatness of the Republic. But the considerations which it suggests can not affect the decision of legal questions, and must be addressed to another branch of the Government. The supposition is not to be indulged that that department of the Government will fail to recognize any duty imposed upon it by the circumstances arising out of this vexed controversy."

That is exactly the relief we are asking to-day.

The CHAIRMAN. I would like to have you call our attention to where, in the decision or elsewhere, there is evidence that there were individuals contending for the same piece of land.

Mr. BARKLEY. That is not in evidence, Mr. Chairman, except in what I have quoted. Of course, I am not familiar with the evidence in the case.

Mr. DYAR. I think I can give you an explanation of that. A great many people have settled in Greer County and have land and located it under Texas, supposing it to be Texas land, and this was referring to that situation. Congress actually did pass an act in the next year, I think it was, giving the preference right of entry to those who had bought the lands of Texas or settled upon them.

Mr. BARKLEY. I was going to come to that.

The CHAIRMAN. The proposition I was interested in was whether or not there were conflicting claims for the same 160 acres.

Mr. DYAR. I do not think there was anything of that kind.

Mr. BARKLEY. In 29 Statutes at Large, 490, there is this legislation enacted by Congress in 1897:

"That every person qualified under the homestead laws of the United States, who, on March sixteenth, eighteen hundred and ninety-six, was a bona fide occupant of land within the territory established as Greer County, Okla., shall be entitled to continue his occupation of such land with improvements thereon, not exceeding one hundred and sixty acres."

That left it in doubt as to whether it would apply to the people holding under a Texas title.

The next reference I want to read to you is in 30 Statutes at Large, 966, an act approved March 1, 1899:

"That section one of an act to give preference right to settlers in Greer County, Oklahoma Territory, is hereby so amended as to allow parties who have had the benefit of the homestead laws of the United States, and who had purchased lands in Greer County from the State of Texas prior to March sixteenth, eighteen hundred and ninety-six, to perfect titles to said lands according to the provisions of section one hereinbefore mentioned,"-now notice the particular applicability of this provision-" under such regulations as the Commissioner of the General Land Office may prescribe, and according to the legal subdivisions of the public surveys, if no adverse rights have attached : Provided, That no settler shall be permitted to acquire to exceed three hundred and twenty acres under this provision."

Mr. MCCORMICK. Was anyone claiming title to this oil territory at that time? Mr. BARKLEY. You mean in the Greer County case?

Mr. MCCORMICK. Yes.

Mr. BARKLEY. I do not know about that. It was a long time ago.

Mr. LARSEN. What was the size of a lot in Texas?

Mr. BARKLEY. A man might apply for a 640-acre homestead.

Mr. LARSEN. But the limitation of expenditure was to 160 acres?

Mr. BARKLEY. Yes.

Mr. LARSEN. According to your idea, what should be the limitation in this legislation, 160 acres or more?

Mr. BARKLEY. Either one would be satisfactory. I think it should follow generally the provisions of the leasing act. If you have the same date and the same regulations you have your procedure established.

Mr. LARSEN. I was wondering if you wanted some congressional policy established, whether that policy should be that adopted in the Greer County case, limiting it to 160 acres?

Mr. BARKLEY. That is all right for my people. It is immaterial to us.

Mr. MCCORMICK. I do not understand why those statutes are applicable if there was not a claimant at that time.

Mr. BARKLEY. I take it they were applicable, and the very fact that the Commissioner of the General Land Office was given power to prescribe rules and regulations was to permit him to determine contests as between claimants. I am only assuming that; I do not know.

Mr. GORE. This oil land is not in Greer County?

Mr. BARKLEY. No. I would like to insert in the record, Mr. Chairman, several pages from a brief filed by Mr. George A. Smoot, wherein he has set out in succinct form the many provisions and documents which construe the boundary between the two States.

(The matter referred to is as follows:)

During this period, and especially during the more recent years, there have been innumerable recorded expressions from almost every department of the Federal Government placing this boundary along the course or mid-channel of the stream. To give some idea of the amazing number and character of these acts of recognition, the following is offered as a partial brief summary: