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"Mission of La Purisima."-Decision by Commissioner:

The decree in this case confirmed the title of the "church and building occupied as a dwelling adjoining it, constituting the church and mission buildings of the Mission of La Purisima," " together with the land upon which the same are erected, and the court-yard fenced in adjoining the buildings in the rear, and the curtilage and appurte nances thereunto belonging.”

Held, that two vineyards did not pass to the said mission under the general designation "curtilage and appurtenances."

June 16, 1873. No appeal.

"Rancho Alisal." Land commission, No. 264.-Decision by Commissioner:

Held, that a survey of a private land claim in California, made under the act of March 3, 1851, (Stat., vol. 9, page 631,) and approved by the United States surveyor general for California, prior to the act of June 14, 1860, (12 Stat., page 33,) could not be legally published under said act, but must be published under the provisions of the act of July 1, 1864, (13 Stat., page 332.)

Decision affirmed by the Secretary of the Interior, October 8, 1873. "Rancho San Miguelito."-Decision dated March 17, 1874, by Secretary of the Interior:

Held, that the Department has no power under the act of July 1, 1864, (13 Stat., page 332,) to approve a survey of a private land claim in California any part of which survey is clearly outside the limits of the grant and confirmation, unless said part contains so small an area that it may be ignored in the approval, for the sake of convenience. Held, also, that a survey of such a claim containing several hundred acres clearly outside of the limits of the confirmation upon which such survey was based could not be approved.

"Mission lands of San Buenaventura." Poli, confirmee.-Decision by Commissioner:

Held, that sales by the claimant, made before survey by the United States, under the act of March 3, 1851, are to be treated as selections in those private land claims in California where confirmation has been made for quantity within larger exterior boundaries, and that an agreement before survey to convey a part of such a claim when patented will also be treated as a selection. Held, also, that the lands selected outside of such a claim may be abandoned by the claimant, and another selection made within the grant and including the claims of settlers, when the record does not show that the claimant had notice of such settlement, or that he had made the first selection for the purpose of inducing such settlements.

Affirmed by the Secretary of the Interior, June 18, 1874.

LOUISIANA.

After a careful consideration of the acts of March 3, 1819, (3 Stat., p. 528,) May 8, 1822, (3 Stat., p. 707,) and December 22, 1854, (10 Stat., p. 599,) this Office issued a patent, on the 31st of October, 1873, to Jonathan Turnbull, for a claim in Louisiana, reported as No. 5 in Cosby's register A, report of 1813, and recognized as a complete and valid title by the first section of the act of 1819, above mentioned. This is a change from the previous practice of this Office, it having been held, heretofore, that a claim recognized by the first section of the acts of 1819 or 1832, being already

complete, needed no patent from the United States to vest the legal title in the claimants.

Under the act of June 2, 1858, the following ruling has been made relative to the issue of certificates of location, to wit:

DEPARTMENT OF THE INTERIOR, GENERAL LAND OFFICE,
Washington, D. C., July 14, 1373.

SIR: The case of D. J. Wedge, claiming to be the legal representative of Thomas Chritendon, applicant for a certificate of location for 640 acres of land under the act of June 2, 1858, brought before this Office by appeal from your decision of January 6, 1873, refusing to issue such certificate, for the reason that the parties had failed to show the location of the original claim, has been carefully examined and considered. By the eighth section of the act of Congress approved April 20, 1812, entitled "An act for ascertaining the titles and claims to land in that part of Louisiana which lies east of the river Mississippi and island of New Orleaus," as extended by the supplemental act of April 18, 1814, and March 3, 1819, certain commissioners were authorized and required to report for the consideration of Congress a list of actual settlers on the public lands in said district who had no claims derived either from the French, British, or Spanish governments.

Under these acts a list was reported, including the claim of Thomas Chritendon, based on settlement alleged to have been made in 1811. This list, made by Cosby and Skipwith, on the 4th of July, 1821, did not show the quantity of land claimed by Chritendon. This and other lists having been reported to Congress, it, by the third section of the act approved May 8, 1922, made a conditional grant or donation to such settlers in the following language:

“And be it further enacted, That every person, or his or her legal representative, whose claim is comprised in the lists or registers of claims reported by the registers and receivers, and the persons embraced in the lists of actual settlers, or their legal representatives, not having any written evidence of claim reported as aforesaid, shall, when it appears by the said reports or by the said lists that the land claimed or settled on had been actually inhabited or cultivated by such person or persons in whose right he claims on or before the fifteenth day of April, one thousand eight hundred and eighteen, be entitled to a grant for the land so claimed or settled on, as a donation: Provided, That not more than one tract shall be thus granted to any one person, and the same shall not contain more than six hundred and forty acres; and that no lands shall be thus granted which are claimed or recognized by the preceding sections of this act, or by virtue of a confirmation under an act entitled 'An act for adjusting the claims to land, and establishing land offices in the districts east of the island of New Orleans,' approved on the third day of March, eighteen hundred and nineteen: And provided also, That no claim shall be confirmed where the quantity was not ascertained and report made by the registers and receivers prior to the twenty-fifth day of July, one thousand eight hundred and twenty."

It is assumed by the attorneys for the applicant that this section granted and confirmed to Chritendon the land claimed by him to the extent of 640 acres, but Congress appears to have entertained a different opinion, for it treated the list in which this elaim was reported as not coming within the provisions of the grant and confirmation made by that section, for the reason that the quantity of land was not ascertained and reported prior to the 25th day of July, 1820, and by act approved August 6, 1846, it reinoved the restriction imposed by the second proviso of the third section of the act of May 8, 1822, and confirmed the claims embraced in certain lists which had been excluded by that proviso.

But this confirmation was subject to all the other restrictions and limitations contained in the said third section of the act of May 8, 1822, as will fully appear by reference to the act of August 6, 1846, which is in the following language:

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the second proviso of the third section of the act of eighth May, eighteen hundred and twenty-two, entitled 'An act supplementary to the several acts for adjusting the claim to land and establishing laud offices in the districts east of the island of New Orleans,' shall not apply to the reports dated eighteenth November, eighteen hundred and twenty, and twenty-fourth July, eighteen hundred and twentyone, of Cosby and Skipwith on settlement-claims in that part of Louisiana which lies east of the Mississippi River and west of Pearl River, but such claims which, according to the said reports, were inhabited or cultivated, or where the date of settlement was before the fifteenth April, eighteen hundred and thirteen, are hereby confirmed under the other restrictions of said third section; but this confirmation shall in no manner affect prior rights, and shall only amount to a relinquishment on the part of the United States."

As the first proviso to the third section of the act of May 8, 1822, limited and restricted grants of donations to settlers on the public lands, and expressly excepted and ex

cluded from the grant the claims of settlers which were in conflict with the superior claims recognized by the first and second sections of the act, and confirmed by the act approved March 3, 1819, it follows, as a matter of course, that no settlementclaim was confirmed which conflicted with such superior recognized or confirmed claims, and therefore in order to decide whether any particular settlement claim was confirmed by the act of May 8, 1822, or August 6, 1846, it is first necessary to ascertain its location, and to determine whether the settlement was made upon the public lands of the United States, or upon the private land claims of individuals deriving title from the French, British, or Spanish governments. For if the claim was not upon the public lands it was not confirmed by Congress, and if it was not confirmed by Congress there is no law authorizing the issue of certificates of location, for the act of Congress approved June 2, 1858, only authorizes the issuance of such certificates of location in cases in which a private land claim has been confirmed by Congress, and remains unsatisfied in whole, or in part, and the same act requires you, before issuing such certificates, to take satisfactory proof that the claim has been so confirmed.

This will more fully appear by reference to the third section of said act, which provides "that in all cases of confirmation by this act, or where any private land claim has been confirmed by Congress, and the same, in whole or in part, has not been located or satisfied, either for want of a specific location prior to such confirmation or for any reason whatsoever, other than a discovery of fraud in such claim subsequent to such confirmation, it shall be the duty of the surveyor general of the district in which such claim was situated, upon satisfactory proof that such claim has been so confirmed, and that the same, in whole or in part, remains unsatisfied, to issue to the claimant, or his legal representatives, a certificate of location for a quantity of land equal to that so confirmed and unsatisfied." I could not see how it was possible to decide that one of these donation claims covering a settlement, and, therefore, confined and limited to a particular tract of land, and in nowise partaking of the nature of a "float" to be located at the discretion of the claimant, had been confirmed, unless the location of the tract was first ascertained; and, therefore, on the 26th of August, 1872, I addressed you a letter of instructions directing you to take testimony as to the original location of these settlement claims.

The attorneys for the applicant in this case, in lengthy and able arguments, not only question the right of this Office to prescribe any rules for your guidance in the matter of taking proof in applications for certificates of location under the third section of the act of June 2, 1858, but also attempt to show that the particular instructions were not correct, claiming that the surveyor general acts judicially in weighing the proof, and that this Office has no jurisdiction to prescribe what shall be the kind or amount of proof in these cases.

In support of this position they give extracts from the opinions of Attorneys General Wirt and Butler based upon the acts of February 5, 1813, and May 29, 1830, to the effect that where proof must be made to the satisfaction of the register and receiver, this Office cannot revise or control their decision, or make any regulations concerning the weight or force of evidence that may be offered.

These opinions were written before the passage of the act of July 4, 1836, entitled "An act to re-organize the General Land Office," which gave to the Commissioner of that office a general supervisory power over all matters pertaining to the survey and sale of the public lands of the United States, as well as private land claims, and under which it has been repeatedly held by departmental decisions that he not only had the power to issue regulations, but to review the acts and decisions of his subordinates performed and made pursuant to the provisions of statutes similar to the act of June 2, 1858, which does not in express terms provide for such regulations or for appeals.

But admitting that the opinions of the Attorneys General cited by counsel are correct under the statute of June 2, 1858, they are not applicable to the case under consideration for in the instructions of August 26, 1872, to which counsel object, there is nothing whatever intended to control, or which could have the slightest tendency to control, the exercise of your judgment as to the weight, force, or sufficiency of the evidence submitted by any applicant in support of a claim for certificates of location. On the contrary they relate solely to the kind of proot which should be offered for your consideration, leaving you to judge of its sufficiency. This, instead of being in conflict with the opinions of the Attorneys General, is in complete harmony therewith; for Attorney General Butler, in the very opinion from which the attorneys for applicant quote, says that the Commissioner of the General Land Office "may prescribe rules conformably to which the proof is to be made," and "determine by regulations what kind of proof shall be received and in what manner it shall be made.”

By reference to my instructions of August 26, 1872, you will perceive that this is all that is done. You are merely directed, 1st, to take satisfactory proof that the claim had been confirmed; 2d, to take satisfactory proof that the same in whole or in part remained unsatisfied; 3d, in order to determine whether a claim was in conflict with a superior claim, and thereby excluded from confirmation by the acts of March 3, 1819,

and May 8, 1822, you were directed to take proof as to the location of the claim. There is not one word in the instructions "concerning the weight or force of the evidence that may be offered," or that had the remotest tendency to control your judgment as to its sufficiency or insufficiency.

The attorneys in this case say that the Commissioner cannot prescribe what shall be the kind or amount of proof; Attorney General Butler, on the contrary, says that he may prescribe the kind of proof and the manner in which it shall be made. Accepting the opinion of the Attorney General as authority, I confined my instructions to the kind of proof to be taken, leaving you to judge of its weight, and to issue or refuse to issue certificates according to your judgment as to its sufficiency or insufliciency, subject to revision and approval or disapproval by this Office.

But the attorneys for applicant say that it is impossible for them to furnish proofs of the location of their claim. This is their misfortune. But as Congress requires proof of confirmation, and the question of confirmation cannot be decided without first ascertaining its location, I see no way by which this Office can properly relieve them from the difficulty of their situation. It is the duty of this Office, and of yours, to protect the Government against improper and unfounded claims; and this can only be done by requiring parties to bring themselves clearly within the provisions of the statntes under which they assert their claims.

Statutes are cited to show that at the time these claims were made settlers were prohibited from marking their lines or boundaries in a particular manner. But, as my instructions did not require the boundaries of claims to be established by any particular marks, I am unable to see what bearing these citations have upon the case under consideration. The claim of an actual settler on the public domain does not necessarily have to be defined by "blazed lines" or stakes in order to establish its identity, but it is usually asserted in such a manner as to be known and recognized by neighboring settlers.

It is claimed that it was the duty of the Government to make the survey of these donations, and, as its officers neglected to do so, the claimant should not suffer the consequences of their neglect. But no neglect is shown in this case, and the Government does not presume neglect on the part of its officials. The circumstances do not indicate neglect, but rather that the surveyor, who established the boundaries of other claims, did not find Chritendon in possession of any public lands that could be located. This presumption is strengthened by the fact that neither Chritendon nor any one claiming to be his heir or a purchaser from him has ever asserted a claim since the list was reported.

The claim for certificates of location is now asserted by a man who does not pretend that he ever knew anything of Chritendon or any heir of his, or the place of his pretended settlement, but who derives all the right he has through a purchase at a recent succession sale.

The attorneys argue at great length to show that the claim is not limited by the improvements, and that all actual settlers to whom donations were made by the acts of March 3, 1819, and May 8, 1822, are entitled to 640 acres of land. I fully agree with them in the opinion that the improvement of the whole claim was not necessary, and that the claim was not limited in area by the improvements; but, although they were entitled in some instances to a greater area than that actually improved, a claim had to be so located as to include the improvements, but they were not entitled in all cases to 640 acres of land, and in the adjustment of these donation claims numerous instances can be cited where, by reason of conflict with superior titles, the claim was limited to less quantity, and in some instances the claim was wholly defeated by such conflict, and it has never been held that a claimant was absolutely entitled to 640 acres, although the Government, in a liberal spirit, allowed that amount to be surveyed and set off to each claimant where so much public land could be found in one body, including his improvements, and not in conflict with a superior right or title.

It is further argued that the non-location of the claim does not defeat the right or confirmation. This is true if the party had a settlement claim and the location of the claim can now be ascertained, so as to determine whether it was on public or private land, and enable you to decide whether it was confirmed or unconfirmed.

The claimant is entitled to certificates of location provided the claim was not in conflict with the superior title and has been confirmed by an act of Congress.

But if the location of the claim cannot be ascertained, it is impossible to decide whether or not it was confirmed, and if you cannot decide that it was confirmed and that it remains unsatisfied, the issuance of certificates of location is not authorized. Counsel contend, however, that the question of conflict is not material, that it is the claim and not the land which is confirmed, and that settlers had a right to 640 acres of land notwithstanding such conflict. This is not in harmony with the act making the donation, or the contemporaneous construction placed on it by the Government. Congress may, and frequently does, grant or confirm to a party a quantity of land, and authorize him to make the location upon any of the public lands of the United States, subject to entry; but it did not do so in this and other cases of the same class, but do

nated particular tracts of land, viz, the land settled upon and inhabited or cultivated prior to April 15, 1813.

The grant and confirmation were for lands "in place," and the party was confined in the location to the lands which he had inhabited or cultivated, and was not permitted to make a selection at his discretion.

Therefore the argument of counsel, on this point, is not applicable to the case we are now considering, however proper it might be in the case of a grant partaking of the nature of "a float."

Counsel further argue that the want of a specific location cannot defeat the claim of their client. This is true, provided the claim was confirmed, but if it was not confirmed he has no right to certificates of location under any circumstances.

And as the question of confirmation cannot be decided without first ascertaining the locus of the original claim or settlement, it is indispensably necessary for you to take proof on that point, not alone for the purpose of discovering whether the claim bas been satisfied, but for determining whether its situation was such as to bring it within the acts confirming settlement claims on the public lands, but expressly excluding such as might be found on private grants made by the government from which the United States derived title.

A claim may have been confirmed and not satisfied by specific location or otherwise. In such case Congress provides indemnity in the form of certificates of location. But it does not make provision for satisfying claims which were not confirmed, and therefore requires proof to be taken on that point. In this case the objection to the issuance of scrip is not only merely that the claim has not been specifically located, but that it has not been confirmed.

The burden of proof is on the claimant to show confirmation, and in order to do so he must show where the settlement and claim were originally made, for Congress did not confirm all claims, but only certain settlement claims having a fixed place, or, in other words, it did not grant and confirm to these settlers the right to make a location anywhere they might select on the public domain, but merely gave to them the claims which they had already made and located, provided that they should be found on the public lands of the United States.

Numerous statutes are cited to show that Congress granted indemnity, or authorized new locations, in cases where settlers and claimants had been deprived of their claims by conflict, or a subsequent disposition of the lands by the Government.

These statutes have no bearing upon this case further than to sustain the position which this Office takes-that Congress alone can afford relief in such cases.

In the cases cited it provided such relief by special acts making new grants to the parties whose previous claims had been defeated because of conflicts with superior titles, regardless of the fact as to whether the first claims had been confirmed or not.

In other words, having the power to dispose of the public domain, and considering the peculiar circumstances and equities of the particular cases presented to it for consideration, it provided relief by authorizing new locations; not because the original claims were confirmed private land claims, but because Congress, in its discretion, thought the parties entitled to relief.

In acting on the list, however, in which Chritendon's claim was reported, Congress confined the relief to cases which it had confirmed, and this Office possesses neither the power nor the right to go beyond its provisions and authorize the issuance of certificates of location to parties whose claims had not been confirmed by Congress, nor even to parties whose claims had been confirmed by authorized commissioners or by the courts. Congress expressly limited the jurisdiction of surveyors general in the matter of issuing certificates of location to cases which it had examined and confirmed, and required them to take satisfactory proof that they had been so confirmed. And therefore it follows that in all cases where the fact of confirmation is not fully and unquestionably established, you should refuse to issue certificates.

In this case the determination of the location of the claim became necessary to a decision as to whether it had or not been confirmed, and as its location could not be shown or ascertained with sufficient certainty to enable you to decide whether it had or had not been confirmed, you did right in refusing to issue the certificates of location. I therefore affirm your decision, because the fact of confirmation has not been established, but waive any consideration, or decision, on the point as to whether D. J. Wedge is a legal representative of Thomas Chritendon by virtue of his purchase at the succession sale, for the reason that, as the claim of Chritendon has not been confirmed, the decision on that point is not material in this case.

You will give the parties in interest notice of this decision, allowing sixty days for appeal.

Very respectfully,

E. W. FOSTER, Esq.,

WILLIS DRUMMOND,

Commissioner.

United States Surveyor-General, New Orleans, La.

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