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flood plain right now. What I was going to say was this: In 1875 the territory was surveyed and they took this to be land—these flood plains to be land; they surveyed and subdivided those lands and they ran a meander line along the outer margin of these Oklahoma side flood plains; at that time this flood plain was extended out to this little black line more than half way and what is now the center of the river was all flood plain land.

Mr. VAILE. You are now referring to the flood plane on the north side of the river?

Mr. DYAR. Yes. When the court set the middle of the river we drew a decree locating it in the middle of the present sand bed river, while the north-shore claimants drew a decree based upon the theory that their rights vested at the time of the survey under which they bought, namely, in 1875, that the medial line must be ascertained by going half way between the meander line of 1875 and the south bank, If they are correct in that, they will get a group of 12 or 15 of the very best wells in the receivership; and so there we are. That bas got to be decided by the Supreme Court.

Mr. RAKER. Did the Supreme Court hold that the Oklahoma claimants owned to the center of the river, wherever the river was?

Mr. DYAR. Well, it said so in general terms, and immediately there was a latent ambiguity. There was an old survey, and those people on the north and the Indian allottees took their allotments according to that survey. They said, “ We start from the old meander line; we have got the title to there and we had at that time riparian rights to the middle of the river, according to that decision," and they stand on that, but we say "No."

The CHAIRMAN, I would like to get clear in my mind just what the forthcoming decision of the Supreme Court is going to decide. Is it going to mark out the line of the definite location of the south bank of the river or is it merely going to give us criteria whereby we may determine that?

Mr. DYAR. All the court can do now, I take it, is to give criteria by which we can determine where it is; then it will appoint a commission to locate that line upon the ground, under instructions to be given by the court. That is all that can be done.

Mr. VAILE. As a matter of fact, it will give criteria by which the medial line can be established?

Mr. DYAR. Yes; and it must tell us whether the medial line is to be established from the banks as they were at the time the survey was made or where they are now, and it will simply be a question of whether the changes that have taken place since are changes by avulsion or changes by accretion.

The CHAIRMAN. Then this forthcoming decision is not going to conclude the matter and determine where the south bank is upon the ground?

Mr. DYAR. I do not see how it can. There is only one possibility and that would be for them to say it will be right where the receiver's south line is located or else it will be right along the north line of these old Texas surveys. That line is already surveyed and laid on the ground. If the Supreme Court should take that as the south line it may say so in an opinion and avoid any necessity for any further surveys, but it is not likely it will do So. I do not know.

The CHAIRMAN. I would like to ask you a few questions after you have concluded what you think you ought to give the committee. I do not want to interrupt you.

Mr. DYAR. I had not intended to go outside the lines of the report made to you, but I want to emphasize this: That these bills assume that some or all of the claimants who went upon these lands and put down wells did so


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in good faith. Now, our position is this: That under all the circumstances as they existed it is impossible that any of them should have been in good faith in the legal sense.

The CHAIRMAN. You mean in the legal sense?
Mr. DYAR. Yes.

The CHAIRMAN. Is it your idea that notice of an adverse claim impeaches good faith on the part of a claimant?

Mr. DYAR. I think it does to this extent: If a claimant to lands goes in and takes possession when he knows that some other claimant has a claim or is asserting a claim to it, and especially if he knows that three or four other parties are all asserting claims to it, he can not have that good faith * which is within the meaning of the law. I think good faith implies that a man believed he had a right to go upon lands and to do what he did there and it implies that there is no adverse claim having a reasonable foundation, otherwise a man could go onto my lands or your lands or anywhere and do something there and set up a claim.

The CHAIRMAN. I would like to have a full exposition as to your idea of the meaning of the phrase “ good faith." Without expressing my own opinion or committing myself, it is my understanding that the courts have interpreted and applied the phrase "good faith " very differently in different cases and under different statutes. For instance, the courts have held that an act in one sense may not imply good faith and in another sense the very same act implies good faith. If you have notice of an outstanding title relating to the ownership of real property and you go on that property you are not in good faith, but the same act may put you upon that property and you improve that property; under a statute you may be reimbursed for your improvements because you were on there in good faith. Do not the courts hold that?

Mr. DYAR. I confess I have given my definition of good faith just from my general conception of the law; I had not had to look it up at all when I gave that definition. Take the occupying claimants laws; ordinarily the (Ccupying claimants laws provide for the compensation of the man who, under some color of title or some mistake of title or some misconception, goes upon or enters the land and makes improvements, but if he goes there knowing the other man claimed it, especially if the other man had actual possession, he takes the consequences and loses the improvements.

The CHAIRMAN. When I read the letter of the Attorney General, which I received last night, and saw that your entire objection was based upon the claim that these parties were not acting in good faith, I was interested ili finding what the courts had held regarding “ good faith,” so I looked up words and phrases.

Mr. DYAR. I am sorry I did not do it myself.

The CHAIRMAN. I want to call your attention to some of the definitions of the courts construing the expression “good faith' so that you may direct your argument and apply the facts in this case to these decisions, because it seems to me from your own contention that the entire issue in this case is that these parties did not act in good faith.

Mr. DYAR. Precisely so.
Mr. COLTON. That would be as between the Government and the parties.
Mr. DYAR. Yes; as between the Government and the parties.

The CHAIRMAN. Your whole objection to this remedial legislation is because these parties are guilty of bad faith or lack of good faith?

Mr. DYAR. Lack of good faith, not bad faith; I would not say that.

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The CHAIRMAN. And you stated a while ago that notice of an outstanding or adverse claim impeaches good faith?

Mr. DYAR. I think so.

The CHAIRMAN. I want to call your attention to some of the decisions of the courts, not as expressing my own opinion but giving you the law upon this matter.

Mr. VAILE. Just before you do that may I ask Mr. Dyar this question: How can a man be otherwise than in good faith when his right is founded upon the recognition of the Government's claim to the land, and that is the basis

Mr. DYAR (interposing). Suppose a man goes upon a military reservation and suppose a man comes on the Capitol grounds and starts to assert a mining claim? Is he acting in good faith?

Mr. VAILE. No; because obviously that land is not open to mineral entry. Mr. DYAR. Well, obviously this land was not, and the court has so held.

Mr. VAILE. If a man comes and says, Here is Government land and I desire to take it under the laws of the Government.", The Government does not object at that time and the Government is asserting no claim adverse to his action.

Mr. DYAR. Just one moment. There was not such a thing known, I believe, anywhere in Oklahoma. as a valid mineral claim, outside of two little restricted areas to which the mineral laws were expressly extended. Oklahoma people did not know anything about mineral claims. These men who went on there, unless they had been in the West somewhere, had never seen a valid mineral claim and their situation was wholly different from men in Colorado or California, where we all know we can go out on any public land and locate a mineral claim.

Mr. MCCLINTIC. May I interrupt you on a question of fact? The gentleman has spoken about mineral claims in Oklahoma, and I am sure the gentleman is conversant with a number of areas around the Wichita Mountains where mineral claims have been filed.

Mr. DYAR. Yes; but Congress by law expressly extended the mineral laws to the Wichita Mountains area.

Mr. MCCLINTIC. I merely called your attention to the fact that we were conversant with mineral laws in Oklahoma.

Mr. DYAR. I said, except as to two areas.

Mr. RAKER. I would like to ask you this question : If a man files on a mining claim when it is in the possession of a third party, is he acting in good faith with the Government? What do you think about that?

Mr. DYAR. My thought about that is that you must judge the good faith of the act by the circumstances existing at the time it was done, and not in the light of decisions afterwards, which clarify the whole thing. To me it seems absurd to say that it was claimed by Texas, claimed by Oklahoma, and claimed by the north shore riparian owners, and, after those are all eliminated, say that it is the same as if this man went out and took a piece of Colorado public land owned by the United States, with no other claim against it.

Mr. DRIVER. How much notice did they have that Oklahoma or Texas owned this particular land?

Mr. DYAR. That is a pretty hard question to answer.

Mr. DRIVER. That seems to me to enter very largely into this question of good faith.

Mr. DYAR. I will say again, without fear of contradiction, I think, even by the placer miners, that they all knew that Texas claimed the land to the middle of Red River. Now, of course, in the reading of our report you will find that in 1868 the court of criminal appeals, in Texas, decided a criminal case involving the boundary line, and as to whether it was in the middle of the river or along the south bank, and in that case the court decided that it was in the middle of the river and that the jurisdiction of Texas extended thereto.

The CHAIRMAN. I would like to get some decisions before you and have you apply the facts in this case to the principles of law. I am reading from Judicial and Statutory Definitions, Words and Phrases, volume 4, on page 3118. They are all brief, and I would like to get them into the record :

“Good faith,' as used in Rev. Code Miss. 1871, ch. 17, art. 4, $ 1557, which provides for the payment of defendants, in actions of ejectment, of the value of their improvements on the land, and that no defendant shall be entitled to such compensation unless he shall claim the premises under some deed or con. tract of purchase made or acquired in good faith, means nothing more than an honest belief on the part of the purchaser that he was the true owner, It does not mean that the purchaser must have made every possible research to discover whether or no his title was valid. It is used in contradistinction to bad faith. Canal Bank v. Hudson, 4 Sup. Ct. 303, 311, 111 U. S. 66, 28 L. Ed. 354.”

Now, another citation :

“Good faith, such as is required in the creation or acquisition of color of title, is a freedom from a design to defraud the person having the better title, and the knowledge of an adverse claim to or lien upon property does not, of itself, indicate bad faith in a purchaser, and is not even evidence of it, unless accompanied by some improper means to defeat such claim or lien. Searl v. School Dist. No. 2, 10 Sup. Ct. 374, 377, 133 U. S. 553, 33 L. Ed. 740.Now, another:

Good faith in the acquirement of title within the meaning of the statute in reference to the title by adverse possession, does not require ignorance of adverse claims or defects in the title. Notice, actual or constructive, is of no consequence. There may be good faith notwithstanding actual notice of ex. isting claims or liens or knowledge of legal defects, which prevent the title of which there is color from being absolute. Thus one who obtains a deed to property without fraud, supposing that it conveys good title may acquire title by possession and payment of taxes, although he took the deed with knowledge of an adverse claim. Keppel v. Dreier, 58 N. E. 386, 388, 187 III. 298."

Here is another:

“ By the term ' good faith'as used in the rule that good faith in the claimant is an indispensible element in the law of adverse possession, it must not be understood that it involves an inquiry into the party's belief in the character or strength of his title, or whether in fact he has any title. What is meant by the term is simply good faith in claiming possession of title; or in other words, a real intention to claim the land as his own, distinct and hostile to the title of the owner. Newell on Ejectment, p. 788. But the court held that, to say that good faith is an essential element, and then to limit to mere intent to claim title, is to eliminate it altogether, as the intent to claim title may exist entirely independent of any element of good faith, as the term has universally been understood. Lampman 1. Van Alstyne, 69 N. W. 171, 174, 94 Wis. 417."

Here is another :

“ The words 'good faith,' as used in the statute of limitations of 1839, providing that title of land shall vest in one in possession who has paid taxes for seven years under claim and color of title acquired in good faith, should


be construed in their practical common-sense meaning. The statute was intended to protect a purchaser of land who bought and paid his money under the belief that he was acquiring title. The fact that a purchaser may err in judgment or do an act that another, under like circumstances, might not do, is not enough to impeach the good faith of the transaction, when the purchase is made with an honest purpose, though the real title is not acquired. Winters v. Haines, 48 111, 585, 588."

Another reference on the same page :

“The requirement that the defeated party in ejectment must have made improvements on the premises while claiming under some deed or contract of purchase made in good faith in order to be entitled to the value of the improvements, means merely that the party must have an honest belief that he is the true owner. The expression 'some deed or contract' of itself negatives the idea that it is the true title which he must have and plainly indicates that what the law calls color of title' will be sufficient. Indeed, if he were the purchaser of the true title, there would be no occasion for him to invoke the protection of the statute, since he could never be dispossessed, and hence could never be compelled to make claim for improvements. Hicks v. Blakeman, 21 South, 7, 8; 74 Miss. 459.”

Mr. SUMMERS. In other words, Mr. Chairman, the circumstances fit the case largely.

The CHAIRMAN. I want to get these citations before Mr. Dyar, so he may apply the facts to them. I just have one or two more.

Now, on page 3121 of the same volume, Words and Phrases:

“Good faith,' as the term is used in the rule of law that a tresspasser on the land of another who takes property therefrom shall be liable only for the actual damage if the property taken was taken in good faith, means that the talking is without culpable negligence or a willful disregard of the rights of others, and in the honest and reasonable belief that it was rightful. The term has been employed in the authorities upon this subject to characterize the acts of one who, while legally a wrongdoer, acted in the honest belief that his conduct was rightful. Whitney 1. Huntington, 33 N. W. 561, 563 ; :37 Min. 197."

I also want to read from Words and Phrases, volume 8, Appendix A to Z.
Mr. RAKER. What page, Mr. Chairman?
The CHAIRMAN. Page 7775.

Now, here is a case where the same acts may not be good faith for one purpose, and is good faith for another purpose. [Reading :)

"One is not a “purchaser in good faith,' so as to be protected against the outstanding contract, who has constructive notice of such contract; and this because the law itself imputes, in the case of constructive notice, knowledge to him. But one may honestly believe that he has good title when in fact he has not, and, while this belief will not avail him as against an outstanding contract or title of which he has constructive notice, he will nevertheless be entitled to be protected in his permanent improvements, for the test of good faith as to them is his honest belief that he has good title.”

That is a case where the man lost the property he claimed, real property, but was reimbursed for the improvements he placed thereon.

Mr. RAKER. What is the name of the case, Mr. Chairman, and what is the page?

The CHAIRMAN. That is Hunter v. Coe, 97 N. W. 869, 872, 12 N. D. 505.

Now, I would like to have your observations upon that, and upon one other proposition. We may have to adjourn in a little while, and I want to give you time to study over it.


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