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itself, but rather enlarges it by changing the rule of the common law requiring the names of the grantees to be inserted in the conveyance of a present interest in a deed. It does not devolve upon the Land Department the duty of inquiring whether or not the party deceased has, in fact, left any heirs, and the question is not material. If there be such, they will, of course, share in the estate, and be liable for its debts; and the statute, as before stated, merely casts the title distributively by including him in the general provision.

Letters of administration issued December 14, 1871, from the probate court of Yuba County, California, in favor of William L. Lawrence, who applies to prove up the claim. He is, therefore, one of the parties designated by the act of 1843 to complete the title of the decedent, and his right to represent the estate is not questioned.

Even if this were not so, the railroad company had no right to the tract at the date of definite location, Redington being then living and competent to make entry of his pre-emption. Consequently, it has no interest in the question as to the rights of the heirs or of other persons at the present time, unless it can defeat the original claim as it existed in 1867.

The claim of the company is therefore rejected.

The land being awarded to the "heirs," the claim of Nunnelly must be held subject to the prior right.

You will so advise the parties in interest, and allow sixty days for appeal.

Very respectfully,

S. S. BURDETT,

Commissioner.

DEPARTMENT OF THE INTERIOR,
Washington, D. C., November 27, 1875.

SIR: I affirm your decision, and herewith return the papers transmitted with your letter of 19th June last, in the case of the Heirs of John Redington vs. John Nunnelly and the California and Oregon Railroad Company, involving the right to the southeast quarter section 17, township 15 north, range 6 east, Marysville, Cal.

I am, sir, very respectfully, your obedient servant,

Hon. S. S. BURDETT,

Commissioner General Land Office.

Z. CHANDLER,

Secretary.

4.-WHERE PERFORMANCE OF TRANSFER IS NOT SPECIFIC, CLAIM OF SETTLER DOES

NOT FAIL.

DEPARTMENT OF THE INTERIOR,

Washington, D. C., September 1, 1875.

SIR: I have examined the case of David F. Coon vs. The Missouri River, Fort Scott and Gulf Railroad Company, involving title to southeast quarter of section 23, township 24 south, range 23 east, Independence, Kans., on appeal by Coon from your decision of January 22, 1875.

November 15, 1867, one Charles Ketchum entered the land as a homestead, and at once established a residence thereon with his family. In December following the plaintiff, Coon, and said Ketchum entered into a verbal agreement by which it was stipulated that the said Ketchum should sell to said Coon, for a stipulated price, the improvements which he (Ketchum) had placed upon the land in contest; that payment therefor should be made when said Coon should receive some money which he was expecting, and that thereupon Ketchum should deliver possession of the land to Coon. Under this agreement Coon established a residence upon the land in the house occupied by Ketchum and his family. He also commenced to improve the tract, it being further agreed between him and Ketchum that in case he (Coon) should not receive the money which he was expecting, and should be unable to pay the stipulated consideration, then he (Ketchum) should pay him (Coon) the value of the improvements which he (Coon) should have placed upon the land.

March 1, 1868, Coon, having secured the money, paid the stipulated price; Ketchum thereupon left the tract and released to the Government, and the entry was regularly canceled April 7, 1868. April 23, 1868, Coon entered the land as a homestead, and, having lived thereon until 1874, applied to make final proof.

You rejected his application and awarded the land to the company, on the ground that Ketchum had abandoned the same in December, 1867, by a sale to Coon; that this sale was prior to the definite location of the line of the road, and that, therefore, the land inured to the company as against the subsequent entry by Coon.

I do not think the facts in the case, as recited above, show a sale of the improvements by Ketchum to Coon until after the definite location of the road, which was February 11, 1868. The so-called sale (more properly speaking, a verbal contract to sell)

was entirely conditional upon the happening of a future event, viz, the receipt of money by Coon.

Until the happening of this contingency the title to the property was in Ketchum. After the happening of the contingency and the delivery of possession to Coon the title was in him; that neither of the parties understood the effect of this agreement to be an immediate sale is conclusively shown by the stipulation relative to the improvements which, prior to payment, should be placed upon the land by Coon. The money was received by Coon, and by him paid over to Ketchum, March 1, 1863, which was subsequent to the definite location of the line of the road. Then and then only, by the strict terms of the agreement, was there a sale of the claim or improvements by Ketchum, and, consequently, until that time there was no abandonment by him.

In this view of the law, as applied to the facts in the case, the right of Ketchum was valid and subsisting at the date of definite location, and excepted the tract from the grant to the company.

I accordingly reverse your decision, and affirm that of the local officers in favor of Coon, returning herewith the papers transmitted with your letter of May 10, 1875.

Very respectfully,

The COMMISSIONER OF THE GENERAL LAND OFFICE.

B. R. COWEN,
Acting Secretary.

5. AT THE DATE THE RIGHT OF A RAILROAD ATTACHED, THE GRANTED LAND PRIMA FACIE BELONGED TO THE ROAD, AND THE BURDEN OF PROOF RESTS UPON HIM CLAIMING ADVERSELY TO SHOW AFFIRMATIVELY TO THE CONTRARY.

DEPARTMENT OF THE INTERIOR,

Washington, D. C., January 19, 1876.

SIR: I have considered the case of John F. McComber vs. The California and Oregon Railroad Company, involving the right to the south half of southwest quarter section 31, township 34 north, range 1 west, Mount Diablo meridian, Shasta district, California, coming up on appeal by the company from your adverse decision of April 26, 1875. McComber claims that at the date the right of the road attached, the land in dispute was covered by the pre-emption claim of one Jesse Crumes, and thereby protected against the grant, and is now subject to his, McComber's, filing, which was offered October 29, 1874, alleging settlement May 1, 1872.

The land is unoffered, and was withdrawn for the benefit of the company, by order of November 25, 1867. Township plat was filed August 1, 1874.

The right of the company attached September 13, 1867.

The evidence is to the effect that Crumes is an American citizen, and settled on the land in March, 1862, occupied and cultivated it until May, 1869, when he sold to one Moody; that after other transfers, it was purchased by William McComber, who sold to his son, the present claimant, some time during the winter of 1872 and 1873. It does not show that Crumes was a single man, over the age of twenty-one years, or the head of a family, nor that he did not leave his own land to settle upon this, nor that he was not the owner of 320 acres at that date, nor does it show in general terms that he was a "qualified pre-emptor." Testimony on these points seems to have been carefully avoided; for when Crumes, who appeared as a witness, was asked on direct examination, "Were you a bona fide pre-emption settler and entitled to take a pre-emption claim at the date of your settlement on said (this) land ?" he evaded a direct answer, and replied, "I never have pre-empted any land, never had the benefit of a pre-emption," and the examination was not pursued further in that direction. The evidence therefore fails to establish the fact that Crumes was a qualified pre-emptor.

The decision of the Department, of November 18, 1875, in case of Barnes vs. The Saint Joe and Denver City Railroad Company, follows the principles established by other cases therein quoted, and is to the effect that a qualified pre-emption settler upon lands-being under the decision of the Supreme Court in case of Johnson vs. Towsley (13 Wall., 72) entitled to file his declaratory statement at any time before another qualified person shall settle upon the same tract, file notice of his claim, and otherwise comply with the conditions of the law-is possessed of a pre-emption claim that will protect the land it covers against the grant to the railroad company.

The argument being that, as the grant excepts lands to which a pre-emption claim has attached, the question is between the settler and the Government, and if without reference to the company a settler has, at the date the right of the road attaches, a claim which under the pre-emption law may be ripened into a perfect title, the company has no right thereto, it is not included in its grant, and if the settler's claim is not perfected the land it covers reverts to the Government, and that this rule applies in all stages of a pre-emption claim, from its inception to its completion.

The burden of showing affirmatively the existence of a bona fide pre-emption claim upon lands, sufficient to take them out of the grant, is upon those alleging it; it cannot be presumed nor taken for granted.

This has not been done in this case, for Crumes's personal qualifications as a preemptor have not been established. I think, therefore, that the land in question must pass to the company under its grant, and so decide.

Your decision is reversed, and the papers in the case, transmitted with your letter of July 3, 1875, are herewith returned.

Very respectfully,

The COMMISSIONER OF THE GENERAL LAND OFFICE.

Z. CHANDLER,

Secretary.

6. THE RIGHT TO CHANGE FROM A PRE-EMPTION FILING TO A HOMESTEAD ENTRY IS INCIDENT TO AND A PART OF THE RIGHT GIVEN A PRE-EMPTOR.

DEPARTMENT OF THE INTERIOR,
Washington, March 22, 1876.

SIR: I have considered the case of Marcus D. Watson vs. The Missouri River, Fort Scott and Gulf Railroad Company, on appeal from your decision of May 24, 1875. The land in dispute is the southwest quarter of section 5, township 26 south, range 23 east, Kansas, and within the limits of the grant to the Missouri River, Fort Scott and Gulf Railroad Company, which took effect February 11, 1868.

The records of your office show that Watson filed declaratory statement for this land October 15, alleging settlement September 16, 1866.

The evidence shows that he has plowed and cultivated about 60 acres of the land, built a house, dug two wells, fenced the entire tract, set out 200 fruit trees and two miles of hedge, and resided thereon since July 9, 1867.

It also appears that he failed to make payment for the land under his pre-emption filing, within the time limited by law, and on the 25th of August, 1868, applied at the local office to make homestead entry of the same, which was allowed.

He made final proof October 16, 1873, at the local office, showing full compliance with the homestead law, and received the usual certificate for a patent of the land.

He now makes application for a patent, which you approve, for 80 acres, but deny as to the whole tract, on the ground that it is double minimum land, being within the grant aforesaid.

The grant to said company is as follows, to wit: "Every alternate section of land or parts thereof designated by odd numbers, to the extent of ten sections per mile on each side of said road, to be selected within twenty miles of the line of said road; but in case it shall appear that the United States have, when the line of said road is definitely located, sold any section or any part thereof, granted as aforesaid, or that the right of pre-emption or homestead settlement has attached to the same, or that the same has been reserved by the United States for any purpose whatever, then it shall be the duty of the Secretary of the Interior to cause to be selected, for the purposes aforesaid, from the public lands of the United States nearest to the sections above specified, so much land as shall be equal to the amount of such lands as the United States have sold, reserved, or otherwise appropriated, or to which the right of homestead settlement or pre-emption has attached as aforesaid." (Act July 25, 1866, sec. 1, vol. 14, Stats., p. 236.)

The second section of said act, after providing that the lands within the limits of ten miles on each side of said road which remain in the United States shall not be sold for less than double minimum price, and shall not be subject to private entry until offered at public sale, reads as follows: "Provided, That actual bona fide settlers under the pre-emption laws of the United States may, after due proof of settlement, improvement, and occupation, as now provided by law, purchase the same at the price fixed for said lands at the date of such settlement, improvement, and occupation."

The manifest intention of Congress in these provisions was to protect actual bona fide settlers in their rights at the time the grant should take effect, and to give the company other lands in lieu of the lands thus or in any wise appropriated.

It is also clear, I think, that as to those settlers the price of their lands was not to be changed, if they proceeded to perfect their titles thereto in accordance with law. You held, and as I think correctly, that Watson acquired a valid subsisting right to the land under his pre-emption filing and settlement, and that notwithstanding his failure to make payment therefor within the time limited by law, there being no adverse claimant to the land, his right thereto was not forfeited, the land was excepted from the operation of the grant to the railroad, and its rights did not attach thereto. (Johnson vs. Towsley, 13 Wallace, 72; Schwerin vs. Western Pacific Railroad Company; Copp's Public Land Laws, 409.)

In the case of Arnold vs. The M., K. and T. and L. L. and G. Railroad Companies, (C. P. L. L., p. 398,) it was held that, on failure to make payment within the time limited by law, the pre-emption claimant forfeited his right to the land, and the grant to the company attached thereto, but I am of the opinion that the doctrine there sought to be maintained is untenable and manifestly unjust.

Section 2289 Revised Statutes gives to the qualified pre-emptor the right to enter as a homestead one quarter section of unappropriated public lands upon which he may have filed a pre-emption claim at $1.25 per acre, or 80 acres of such land upon which he may have filed a pre-emption claim at $2.50 per acre.

This right to change from a pre-emption filing to homestead entry is incident to and a part of the right given the pre-emptor at the time he initiates his claim, and, upon the change being made, relates back to the date of his settlement. (Ross vs. Sinclair, C. L. L., page 398.)

When Watson initiated his pre-emption claim, the land in question was subject to entry at $1.25 per acre, and he thereby acquired the right to buy the same at that price, or, at his election, to enter it as a homestead. Possessing this right, he applied to make his homestead entry, and his application must be governed by the condition of the land at the time his pre-emption claim took effect.

Your decision, so far as it restricts the issuing of a patent to Watson for 80 acres only, is reversed, and I direct that a patent issue to him for the entire tract.

The papers transmitted with your letter, F, of August 21, 1875, are herewith returned.

Very respectfully,

The COMMISSIONER OF THE GENERAL LAND OFFICE.

Z. CHANDLER,

Secretary.

7.—THE FACT THAT A PARTY FILED UNDER A GROTESQUE NAME SHOULD NOT OPERATE SO AS TO DEFEAT HIS RIGHTS AS A SETTLER.

DEPARTMENT OF THE INTERIOR,

Washington, D. C., November 18, 1875.

SIR: I have considered the case of William E. Barnes vs. The Saint Joe and Denver City Railroad Company, involving the right to the southwest quarter of section 19, township 5 south, range 6 east, Concordia district, Kans.

The right of the company attached March 21, 1870, and the tract is within the limits of its grant.

Barnes filed declaratory statement for the land February 19, alleging settlement February 14, 1874. He claims that at the date the right of the company attached the land was covered by subsisting pre-emption claims, and thereby excepted from the grant; that on the subsequent failure of said claims, the land reverted to the Government, and is now subject to his filing.

The records of your office show that a filing was made August 6, 1869, for the west half of the quarter section in controversy, in the name of George Lucas D. Beverly, alleging settlement same day; and that filing was made August 3, 1869, in the name of Cuno Van Tansy, alleging settlement same day on the east half of the tract in dispute. The testimony submitted shows that one Daniel Beverly settled upon the east half of the quarter section on the 3d of August, 1869, built him a house, cultivated a portion of the land, and remained upon the land until June, 1870; that one Gus Usick settled upon the west half of the quarter section about the same time as Beverly's settlement, also built a house, resided on and cultivated the land until June, 1870; that each of these parties filed upon the land he claimed, one witness testifying to having seen the filings, and that they were for a while in his care; that both parties were qualified pre-emptors.

That both parties were residing upon the land in dispute, claiming in good faith, as pre-emptors, at the date the right of the company attached is established. That the filings of record, under the grotesque names recited, caused by the blunder or intentional wrong of some agent, are those of Beverly and Usick is, I think, probable.

Under the decision of the Supreme Court in case of Johnson vs. Towsley, (13 Wall., 72,) and of the Department in case of Hans Schwerin vs. Union Pacific Railroad Company, and case of H. Whitaker vs. Southern Pacfic Railroad Company, these parties, being bona fide settlers upon the land, were entitled to file at any time before another qualified person settled upon the land.

This, at the worst, was their status when the right of the company attached. Theirs were pre-emption claims, capable of being perfected, and therefore sufficient to protect the land they covered against the grant. On the subsequent failure of the said claims the land reverted to the Government, and is now properly subject to Barnes's filing, which should be allowed to stand.

I therefore reverse your decision of October 6, 1874, and return the papers in the case, transmitted with your letter of March 8, 1875.

Very respectfully,

The COMMISSIONER GENERAL LAND OFFICE.

Z. CHANDLER,

Secretary.

8.-DECISION DEFINING 66 PROPER NOTICES BY LOCAL OFFICERS.

DEPARTMENT OF THE INTERIOR,

Washington, D. C., February 8, 1876.

SIR: I have considered the case of Hiram Watts vs. The Missouri River, Fort Scott and Gulf Railroad Company, involving the right to lot 4, section 30, township 22, range 22, Topeka district, Kansas, coming up on appeal by Watts.

The tract is within the indemnity limits of the grant to the company, which attached February 11, 1868.

Watts made homestead entry of the land March 18, 1869; his entry was canceled November 12, 1873, because of the prior right of the company.

It also appears that one Hiram Jennings had, November 27, 1865, made homestead entry of the tract, formally relinquished the same May 2, 1868, and that his entry was canceled by your office June 10, 1868.

From these facts it would seem that the cancellation of Watts's entry for the reason alleged was error, for at the date the right of the company attached the land was covered by the homestead entry of Jennings, which was sufficient, prima facie, under the rulings to except the tract from the grant; and the land, reverting to the Government after the cancellation of Jennings's entry, was subject to the entry of Watts.

On February 16, 1874, your office directed a hearing before the local officers, "for the purpose of ascertaining the status of the prior claim of Jennings, at the date of the definite location of the road."

The foundation of this order is not apparent from the record of the case as transmitted, but I infer it was made at the request of the railroad company, after application o be permitted to select the tract, and on its allegation properly supported, that Jennings's entry was invalid at the date of definite location.

The hearing was fixed for May 20, 1874, and parties notified by the local officers. The company appeared by attorney. Watts did not appear. The case was thereupon continued to a later date, and again continued several times, the company always appearing_by attorney, and Watts making no appearance. Upon January 15, 1875, Walter I. Dallas, attorney for the company, made and filed affidavit in the district office, reciting the facts before stated, and further, that on or about May 10, 1874, he had a conversation with Watts, in which the latter stated that Jennings never resided on or cultivated the land in dispute, and promised in case a continuance was granted, to appear for trial at the day set; that, in pursuance of this agreement, the case was continued and Watts did not appear, and that several continuances were granted for the purpose of securing Watts's attendance, with like result; that affiant has used all the means in his power to induce Watts to attend the hearings, has offered to pay the expense of Watts and his witnesses if he would attend said hearing, and that Watts persistently refused to attend; that affiant is unable to procure other witnesses from the neighborhood of the land, by reason of their fear of violence from Watts and other settlers on lands within the limits of the grant, and said Dallas-evidently believing that Watts's entry was subsisting-asked that on the showing made, said entry be canceled and the land awarded to the company. The local officers, February 3, 1875, forwarded the papers to your office, saying, "In the absence of evidence we decline to make any recommendation."

Your office, February 24, 1875, after reciting the repeated refusal of Watts to appear and submit evidence in support of his claim, decides that "the records in the case will therefore govern, and the railroad company will be allowed to select the tract. With the application to select, the company will be required to file an affidavit, or evidence to the effect, that Jennings's claim was invalid at the date of definite location of the

road."

In my view of the matter, "the records in the case," if allowed to govern, would support Watts's claim, as already indicated by me. The burden of proof is upon the company, to show that it is invalid. This it has not done; the affidavit of Dallas is not sufficient for this purpose. Were there nothing else in the case, Watts's entry should be restored, if canceled, and permitted to stand.

But in his appeal from this decision, Watts takes exception to the "notice" served upon him, claiming that it was insufficient, did not inform him of the issue to be tried, and that he was not bound to regard it and take witnesses one hundred miles from his home to the land office to meet an unknown issne. The "notice" is as follows:

"HIRAM WATTS:

"LAND OFFICE, TOPEKA, KANSAS,
"December 8, 1874.

"In the matter of the Mo. River, Ft. Scott, and Gulf Railroad Co. against you, involving the right to lot 4, section 30, township 22, range 22, you are hereby notified that there will be a hearing in the above-stated case at this office on Friday, January 15, 1875, at 9 o'clock a. m., when you may attend and furnish testimony if you see

proper.

"GEORGE MERRILL, Receiver."

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