2 Agricultural pre-emptions were permitted, under very stringent provisions confining the settlers to a bona fide occupation for agriculture alone. The lands in the excepted list were for reasons of public policy taken from the power of the agricultural settler, but no one else was, by the law of 1841, authorized to enter them, and under that law they still remain public property, subject to the action of Congress. Individual rights were not recognized. The only authority in any one to enter such property existed in counties, which were authorized, by an Act of 1824, to select one hundred and sixty acres for a county site. (4 Stats. at Large, p. 50.) Inasmuch as until the law of 1844 was passed, no other right could intervene, it is necessary to see how an agricultural pre-emptioner could ascertain whether the property was subject to his entry or not; for, if not otherwise appropriated, he would clearly have a right to select it and improve it as agricultural land. If covered by an incorporated town, he would have notice of that, for no town ever becomes incorporated without inhabitants, and if such a thing were imaginable, he would still have notice, for no town-could become incorporated unless by proceedings under the public laws. If actually occupied for trading purposes, there would be the same visible notice. But if any selection could exist not based upon occupancy, no such notice could be easily obtained, for inasmuch as the law does not provide how or by whom such selection may be made, and gave no rights to any one under it, the agricultural pre-emptioner would not know where to look for information. But there are very serious difficulties in the way of allowing any selection by individuals, beyond their actual occupancy. The pre-emption law requires, whether the pre-emption be made by one or two persons jointly, that the applicants shall make oath that the lands were settled upon and improved in good faith, to be appropriated to the exclusive use or benefit of the applicant, and not for purposes of speculation; and that no contract exists, directly or indirectly, with any other person for a beneficial interest in it. It would be a singular construction to hold that an agricultural or other settler could waive these plain provisions, and claim a better right where he professedly enters land for speculation, and with the intention of selling it to others, than where he in good faith observes the law. To hold that an agriculturist can be displaced for another individual who may hold the entire tract for private purposes, would be to defeat the plain language of the statute. And until the law of 1844 was passed, there could be no pretence whatever in favor of any private claims of an exclusive right. The law gave rights to no one. The language of the Act of 1844 is confined to lands actually settled and occupied. It has no reference to "selected" lands, unless the selection is included in the other language. The words "settle" and "occupy," do not first occur in this Act-they are to be found in all the pre-emption laws. See Brightly's Digest, p. 469, et seq., where the various acts are collected. They are inapplicable to any other state of things than a bona fide use and improvement of the land. And not only is the land to be entered by the county judges required to be "settled upon and occupied as a town site," but the specific trust is confided to the use and benefit of the occupants. It is claimed for the appellee, in this case, that one person may select one hundred and sixty acres, or two persons three hundred and twenty acres, as a town site, and so appropriate the whole against all comers, and that the law protects them in such selection, and that the entry by the judges will enure to their benefit. But, if this is so, the language of the act is not well chosen to convey the idea. Settlement and occupancy are not such terms as convey this meaning; and the term "occupants," which embraces naturally all of a class, cannot be confined to mean a small number, or an individual who may not be an occupant, in fact, at all. But a fatal objection to such a theory is to be found in the fact that the law does not compel the county judge to enter the lands at all; and not only provides no means of securing the property if they refuse to act, but removes the right of pre-emption entirely, unless exercised before the public land sales. It is impossible to harmonize such a law with any such rights as are set up beyond rights of occupancy. The decision of Secretary Thompson upon the application of the county judges to enter certain lands laid out at Superior City, contains so clear an exposition of the law that we refer to this part of his opinion at length. He says: (see No. 493.) * * * * * * While the entry is only allowed to cover such land as is actually occupied by the settlers, it must nevertheless be made according to the Government subdivisions, as the law does not permit these to be broken in upon. Thus, in most cases, some land would be found in each subdivision not actually built upon or otherwise occupied for town purposes. These lands the act clearly contemplates shall be sold, and the proceeds are to be disposed of under regulations to be adopted by the State legislatures, who are to establish rules and regulations for the whole execution of the trust. * * * * * * It is claimed on behalf of Mr. Selby that neither of these contestants has any standing in court. Mr. Cash does not claim to have occupied the land as a trader, or as the inhabitant of a town, and his occupancy would not therefore come within the Act of Congress. And if any portion of the subdivision had been occupied legitimately for town purposes in advance of him, he certainly could not prevail in an agricultural pre-emption. But the law did not authorize the judge to enter any subdivision not settled and occupied as a town, and if this was not thus occupied it was not withdrawn from private pre-emption. Any person claiming such pre-emption must have the right to oppose conflicting claimants. If an unauthorized grant has been made of land to which he sets up a claim, we think it is his right to appear before any special tribunal undertaking to deal with the lands, to oppose any disposition of them calculated to create new rights and increase the difficulties of defending himself. If the land was not legitimately entered by the trustee, it should not be disposed of to the prejudice of any just claimant. We express no opinion upon the validity of Mr. Cash's claim, but we think the nature of it sufficient to give him a standing in court. The views we have already expressed, are decisive of the right of Spaulding. While the Act of Congress leaves the details of the use of the proceeds of the surplus fund to be regulated by the legislature, it is very clear that the law designed that they should be used for the common benefit in some way. Many ways exist by which this end might be attained. In the absence of any legal representative, at least, we think any one interested had a perfect right to appear and protect the common fund. Having a right to appear, are the objections raised, such as to entitle them to a reversal of the action of the trustee? MANNING, J., delivered an opinion, coinciding with that of Judge Campbell in the main question, but holding that Cash had no right to appear in the case, or to appeal. MARTIN, Ch. J., did not sit in the case. ATTORNEY-GENERAL'S OFFICE, Sir: I have examined the papers which accompanied your letter of February 25th, in relation to the survey of a private land claim in California, known as the "Arroyo Chico." The survey was made after a final decree of confirmation, and was approved by the Surveyor-General of California, but before it was transmitted to the General Land Office, several persons who claimed an interest in the land, prepared a petition setting forth their objections, and praying that an order might be issued by the District Court to the Surveyor-General, requiring him to bring the survey into court, and that such other proceedings might be then and there had as would be just and equitable. Accordingly, on motion of the District Attorney, the survey was brought before the court, and the parties to the petition appeared by their attorney and presented their affidavits; some of these were in the nature of petitions setting forth the title under which the petitioners claimed, and concluding with a prayer that they be allowed to appear and contest the survey. After hearing their affidavits, the court rejected their application. The District Attorney declined to offer any objections in behalf of the Government to the survey, and it was accordingly approved. The petitioners have presented to you the same proofs which they exhibited to the court, and have entitled their application an appeal from the District Court for the northern district of California." This is precisely what it is; but such an appeal from a court to an executive department cannot be entertained. The question which you propose is, whether the decree of approval entered on the records of the District Court, precludes an examination of the survey, or review of the Surveyor-General's decision in your Department. This depends upon the question, whether the court had jurisdiction over the matter; for if it had, it is very clear that the decree is final and conclusive. In the case of The United States v. Fossat, 21 Howard, 445, it was held, the jurisdiction of the District Court over a private land claim extends to questions relating to its location and boundaries, and does not terminate until the issue of a patent. I am of opinion therefore, that the decree of the District Court confirming the survey, after all objection on behalf of the United States had been waived by the District Attorney, ought to be regarded as final, and that a patent should be issued accordingly.* Yours, very respectfully, Hon. Jacob Thompson, Secretary of the Interior. J. S. BLACK. * It was decided on the 19th March, 1860, that a patent should issue in accordance with the foregoing opinion. INDEX TO PART I. A. PAGE ACCOUNTS relative to public lands, how audited, (sec. 9, No. 8,) AFFIDAVIT required of pre-emption claimant, (secs. 13, 15, No. 48,) Two per cent. on lands sold in, granted to, (sec. 17, No. 48,) Act of 1824, authorizing claimants to bring land suits, extended to, (No. 89,) The interest of the United States in a certain Indian reservation relin- May apply internal improvement lands for school purposes, in certain cases, 142 145 Extended, (Nos. 161, 215,) Account with, in regard to the five per cent. fund and school reservations, (No. 131,) Lands granted to, for the Mobile and Ohio Railroad, (No. 178,) Certain lands in Lebanon District may be selected for school purposes, 131 School selections in lieu of the 16th sections on the "twelve mile reserva- 225 Boundary line of Florida to be connected with public surveys of, (No. 258,) 239 246 Lands granted to, for the Pensacola and Montgomery Railroad, (No. 289,) 259 Lands granted for a railroad from the Georgia line, &c., (No. 312,) 279 APPEALS, In pre-emption cases, lie to the Secretary of the Interior, (sec. 11, No. 48,) 62 299 APPLICATIONS TO PURCHASE LANDS, mode of, (No. 6,) 30 309 ARKANSAS, Owners of certain Spanish and French claims, may enter the same, and Authorized to sell school lands and invest the proceeds, (No. 68,) Settlers south of, entitled to pre-emption under Act of 1814, (No. 69,) |