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No. 455.

A claimant, who filed his Declaratory Statement in time, will not be confined to a regular quarter-section, to avoid confliction.


August 31, 1858.

In the case submitted with your report of the 13th ultimo, wherein F. P. Stubbs, claiming under a Louisiana internal improvement warrant, has appealed from your decision in favor of the right of the heirs of Madison Saunders to enter by pre-emption, the southeast quarter of the southeast quarter of section 10, and lot 17 of section 11-De Bastrop grant,I see no sufficient cause for overruling your decision. There is no controversy, as to the right of the heirs to a pre-emption, but as the warrant was presented August 7, 1855, and the declaratory statement not filed till the 31st, it is claimed that the heirs of Saunders, whose father had a dwelling and improvements on the other subdivision named in their declaratory statement, ought to be compelled to take their one hundred and sixty acres in such shape as will not interfere with the warrant location. As the declaratory statement was filed in time, it is as good as though it had been filed a month sooner, and I know of no authority to refuse to the settler the right to select adjoining tracts of vacant public land, to make his quantity. It is in evidence, that one Aaron Livingston, some years since, cleared and cultivated the land in controversy, but he does not appear as a contestant; and, as against him, the land is as much subject to the preemption claim as to the location of the warrant. which accompanied your report, are herewith returned.

Commissioner of the General Land Office.




J. THOMPSON, Secretary.

No. 456.

A Pre-emption Claimant having filed for, and sold another tract, is dis


September 8, 1858.

With respect to the pre-emption entry of Simpson Hargus, in the Nebraska City, N. T., District, the state of facts presented in your letter of August 4, 1854, and by the papers on file, satisfy my mind that the same was erroneously allowed, and should be cancelled. Hargus does not appear to have been a settler in good faith on the land, or to have been an actual inhabitant thereof, in the sense contemplated by law. In addition, his having filed declaratory statements for other tracts, one of which, it appears, was sold by him for a considerable sum, and thus derived the benefit of a right of pre-emption, renders his filing upon the land now claimed by him, illegal, particularly since his last filing bears date subsequent to the Circular of December 3, 1856. Heth, the adverse claimant, has established no right whatever to the land in dispute.

Commissioner of the General Land Office.

J. THOMPSON, Secretary.

No. 457.


A party fixing his settlement in his Declaratory Statement, will not be mitted to claim the benefit of work done at an earlier date. DEPARTMENT OF THE INTERIOR, November 6, 1858.

The material facts in the contested pre-emption case between A. R. Tribble and John D. Lawhorn, from the Land Office at Kickapoo, Kansas Territory, are as follows:—

On the 7th of January, 1856, said Lawhorn filed his declaratory statement, fixing his settlement on the tract in controversy, on the 1st August, 1854. His witnesses testify, however, that he commenced work on the land on the 18th July, 1854; and although he had declared that the 1st August was the date on which he settled upon the land, with the intention of availing himself of the provision of the pre-emption law, he now seeks to obtain the benefit of work done upon the land prior thereto. He does not appear to have become an actual bona fide settler and resident upon the land until the spring of 1855; although one witness testifies that the claimant had done some work thereon during the preceding winter. Said Tribble filed his declaratory statement on the 12th of January, 1856, alleging settlement on the 20th of July, 1854, which the proof sustains. He moved upon the land in September, 1854, and has continued to reside thereon. In view of these facts, I am of the opinion, that said Tribble has established the superior claim to the tract in dispute.

Commissioner of the General Land Office.

J. THOMPSON, Secretary.

No. 458.

Where a dwelling-house had been previously built, it is not necessary to erect another house, to entitle a claimant to pre-emption.

The act extending the Pre-emption laws to Kansas, which requires a settler to file within three months from the survey in the field, does not create a forfeiture, where the claimant actually files notice prior to the inception of an adverse claim.

November 6, 1858.

You will find enclosed herewith the papers received with your letter of the 6th ultimo, in the case of Joseph Sapp v. John W. Friley, from the Land Office at Kickapoo, Kansas Territory, in which is involved the claims of pre-emption right of said parties to the southeast quarter, section 9, township 7, range 21. Said Sapp alleges settlement upon the land on the 10th September, 1855. He filed his declaratory statement in the office of the Surveyor-General, on the 4th March, 1856. The survey was completed on the 1st December, 1855, and more than three months had consequently elapsed before the date of his filing. Said Friley settled upon the land by moving into an unoccupied tenement thereon, on the 1st August, 1857. A claimant who moves into a house previously erected, making it his home and clearly manifesting his intention of acquiring a right of preemption to the tract on which it is situated, has made a legal settlement on the land, and on producing proof of continuous inhabitancy and improvement, would be entitled to the right of entry, if no prior and superior claim existed thereto. But the first filing of Sapp by which he gave notice of his claim to the land in controversy was valid, and if he shall show to

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the satisfaction of the Register and Receiver, that he has complied with the other provisions of the law, with regard to inhabitancy and improvement, and shall hereafter fulfil its farther requirements, he should be permitted to enter the land he claims. The forfeiture created by the 12th section of the Act approved July 22, 1854, for failure to file notice of the specific tract claimed, within three months after the survey has been made in the field, was not intended to apply to, or to be enforced in other cases than those in which the land is claimed adversely, before the first settler actually files a notice of his intention to pre-empt the land upon which he has settled. The declaratory statement is intended simply as notice that the tract specified is claimed, and if at the date when it is filed there is no other settler upon the land claiming the right of pre-emption, the party filing will be entitled to all the benefit of such notice from the date thereof. The Government will not defeat the claim of a bona fide settler, on account of the non-compliance on his part, with a mere technicality which was inIn the case under contended to protect the rights of adverse claimants. sideration, if the contestant Friley, had settled upon the land before the filing of notice by Sapp, the latter would have forfeited all right thereto, provided the former should conform to the requirements of the law. But the fact is that said Friley did not settle upon the land until after the lapse of more than a year from the date of filing by Sapp, whose right had attached to the land from said date. For the foregoing reasons the claim of said Sapp to the land in dispute is considered valid, and his right of preemption thereto will be recognized and admitted, upon his complying with all the provisions of the law.

Commissioner of the General Land Office.

J. THOMPSON, Secretary.

No. 459.

The fact that a tract of Land had been previously entered by another, and the entry cancelled, would not prevent the acquisition thereof by pre-emption.

December 15, 1858.

Sir:-The papers received with your letter of the 27th October last, in the pre-emption case of Thomas A. Taylor v. George W. Bell, from the Land Office at Superior, Wisconsin, are herewith returned.

The entry of said Bell having been cancelled, for the reasons stated in your letter, the controversy between the claimants is thereby ended, and it only remains to determine whether the said Taylor has established a valid right of pre-emption to the land claimed by him.

I am of the opinion that the facts that said land had been previously entered by another, and the entry thereof has been, or shall be cancelled for sufficient cause, would constitute no bar or obstacle to an acquisition thereof by pre-emption, upon satisfactory proof being produced by a claimant, that he has fulfilled the requirements of the law.

For my views, more fully stated, you are referred to my letter of the 13th instant,* in the case of Dewey v. Allen, from the Land Office at Plattsburg, Missouri. The law of 1841 requires, inter alia, that the claimant shall inhabit and improve "the land upon which he has settled, with a view of acquiring a pre-emption right thereto."

The evidence adduced in this case shows conclusively that the said

* No. 460. See also No. 461.

Taylor has not inhabited the land as contemplated and required by the law. I therefore concur in opinion with you that "his subsequent acts are not of a character to entitle him to the privilege of entering it under the Act of 1841," and his claim is accordingly rejected.*

Very respectfully,

Your obedient servant,

Commissioner of the General Land Office.

J. THOMPSON, Secretary. ·

No. 460.

The pendency of an illegal entry, which was cancelled before the Pre-emption Claimant appeared to make proof, &c., would not make void settlements effected before the cancellation.

DEPARTMENT OF THE INTERIOR, Washington, December 13, 1858. Sir:-After mature consideration of your report of the 3d March last, in the case of Samuel J. Dewey and George P. Allen, contesting the right to enter by pre-emption the east half of the northeast quarter of section 6, township 59, range 26, in the Plattsburg District, Missouri, I am of the opinion that the pendency of an illegal entry of the tract, which was cancelled before the contestants appeared at the local office to make proof and entry, was not an obstacle, which made void their settlements effected before the cancellation of said illegal entry.

The title to the land remained in the United States. The land was public land, although withheld for a time from sale, at ordinary private entry, and liable to be restored to market by a public notice, should you think that course proper. The ninth clause of the regulations of January 9, 1836, I regard as based on the general obligation of the executive, to see that the laws respecting the sale of the public lands are faithfully executed. Where particular tracts have, for some time, remained out of market, from oversight, neglect, or improper action on the part of subordinate officers, or from accident, or mistake, it is proper and legal to instruct local officers to cause notice of the time and place of restoring them to sale, to be published, and to direct them to conform their action to the terms of such notice.

The acts of Congress, by which the ordinary public and private sales of governmental lands are, in the most material respects, regulated, were passed in 1810 and 1820. The laws now in force, conferring pre-emption rights, are of comparatively recent date, and have introduced a new and distinct manner of sale, not very readily harmonized with the methods and form of other authorized disposals of public lands. But to all these laws, full force and effect must be given, if possible. The pre-emption laws confer upon those who establish a compliance with them, a preference right to purchase a limited quantity of public land, and so far, that right is in derogation of the more general right of the public to purchase at public and private sale, under the old laws.

If the preference right of the pre-emptor is ever to be recognized in lands which have once been illegally sold, it should be available to him, as soon as all legal impediments to its consummation are removed; and that it may so be available, we are compelled to recognize his settlement, though

* See No. 486.

commenced before the cancellation of a previous void entry of the tract claimed.*

The Act of Congress of August 3, 1846, and acts supplementary thereto, do not inhibit pre-emption settlements on tracts that have been withheld from entry, or covered by suspended entries that shall be rejected by the Board; though it is provided in the fifth section of said act, that the Commissioner of the Land Office shall order such lands "into market," after the publication of notice for thirty days, in like manner as though they had been brought to sale under the formality of a proclamation of the President. It would therefore seem to do no more violence to the Act of 1816, to recognize pre-emption settlements, and admit pre-emption entries. before the expiration of the Commissioner's public notice, than is done to the Acts of 1810 and 1820, regulating sales, by the allowance of pre-emption entries in the body of unoffered lands, before the day fixed by the proclamation of the President, for offering them at public sale.

These remarks will not be understood as relating to tracts or bodies of land that have been specially reserved from settlement or sale, by order of the President, or other due authority; in respect to which, of course, the special laws or orders made in each case will be respectively observed and carried out.

In the case of Dewey and Allen, now before me, on the appeal of the latter from the decision of the Register and Receiver at Plattsburg, in favor of the claim of Dewey, it is sufficient to say, that Allen does not show that he and was the first settler; and the decision of the local officers against him, in favor of the claim of Dewey, is therefore affirmed. The papers in the case are now returned to your office.

Very respectfully,

Your obedient servant,

Commissioner of the General Land Office.

J. THOMPSON, Secretary.

No. 461.

Where land has been once entered, no Pre-emption right will attach to the same, until after the entry is set aside. A settlement made during the pendency of a prior entry by an adverse claimant, will confer no right. Decision of 13th December, 1858, in the case of Dewey v. Allen, (No. 460,) explained.

September 30, 1859.

Sir-Your report, together with the accompanying papers relative to a claim asserted by John R. Gilman to a tract of land in Nebraska Territory, which had been entered by one Henderson Grey, about two years previous to the inception of the pretended right of said Gilman, has been considered.

Gilman cannot be regarded as a party to a contest in regard to the land in question. His settlement was made during the pendency of Grey's entry, which had been allowed by the Register and Receiver upon proof satisfactory to them. No one appeared at that time to dispute the right of said Grey, and no one, whose settlement did not commence prior to the date of the entry of said Grey, can now be permitted to appear as an ad

* See letter of the Secretary, in the case of J. R. Gilman, (No. 461,) explanatory of part of the foregoing decision.

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