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Where the land has not been offered at public sale, a similar declaratory state. ment must be filed within three months after settlement, and the proof, payment, and affidavit of the claimant must be made before the day fixed for the commencement of the public sale, which shall include the tract claimed.
The tracts liable to entry under this act are some one of the following designations:
First. A regular quarter section, notwithstanding its quantity may be a few acres more or less than one hundred and sixty; or a quarter section, which, though fractional in quantity, by the passage of a navigable stream through the same, is still bounded by regular sectional and quarter-sectional lines.
Second. A fractional section, containing not over one hundred and sixty acres, or any tract being a detached or anomalous survey, made pursuant to law, and not exceeding said quantity.
Third. Two adjoining half quarter-sections (in all cases to be separated by a north and south line, except on the north side of townships, where the surveys are so made as to throw the excess or deficiency on the north and west sides of the town. ship) of the regular quarters mentioned in the first designation; or, two adjoining eighty-acre subdivisions of the regular quarters found on the north and west sides of townships, where more than two such subdivisions exist, or the excess may render them necessary, provided, in the latter case the aggregate quantity does not exceed one hundred and sixty acres.
Fourth. Two half quarter or eighty-acre subdivisions of a fractional or broken section, adjoining each other, the aggregate quantity not exceeding one hundred and sixty acres.
Fifth. A regular half quarter and an adjoining fractional section, or an adjoining half quarter subdivision of a fractional section, the aggregate quantity not exceeding one hundred and sixty acres.
Sixth. If the pre-emptor should not wish to enter the quantity of one hundred and sixty acres, he may enter a single half quarter-section (made by a north and south line), or an eighty-acre subdivision of a fractional section.
Seventh. One or more adjoining residuary forty-acre lots may be entered, the aggregate not exceeding one hundred and sixty acres.
Eighth. A regular balf quarter subdivision, or a fractional section, may each bo taken, with one or more residuary forty-acre subdivisions lying adjoining, the aggre gate not exceeding one hundred and sixty acres.
These lots can only be called "residuary,” after the sale of the other portions of the same quarter-section, or fractional quarter-section, pursuant to the act approved April 5, 1832, authorizing such minor subdivisions.
Forty-acre tracts are now subject to entry in precisely the same manner that eighty-acre tracts are.
Only one person on a quarter section is protected by this law, and that is the one who made the first settlement, provided he shall bave conformed to the other provisions of the law,
A person who has once availed himself of the provisions of this act, cannot, at any future period, or at any other land office, acquire another right under it.
No person who is the proprietor of three hundred and twenty acres of land in any State or Territory of the United States, is entitled to the benefits of this act.
No person who shall quit or abandon his residence on his own land, to reside on the public land in the same State or Territory, is entitled to the benefits of this act.
No pre-emption right exists by reason of a settlement on and inbabitancy of a
tract, unless, at the date of such settlement, the Indian title thereto bad been extirguished, and the land surveyed by the United States.
Land is not properly legally surveyed until the surveys made hy the deputies are approved by the Surveyor General, but in accordance with the spirit and intent of the law, and for the purpose of bringing tbe settler within its provisions, the land is to be construed as surveyed, when the requisite lines are run on the field, and the corners established by the Deputy Surveyor,
No assignments or transfers of pre-emption rights can be recognised. The patents must issue to the claimants, in whose names alone all entries must be made.
SUNDRY DESCRIPTIONS OF LAND WHICH ARE EXEMPTED
FROM THE OPERATION OF THIS ACT.
lat. Lands included in any reservation by any treaty, law, or proclamation of the President of the United States, and lands reserved for saljnes, and for other purposes.
2d. Lands reserved for the support of schools.
3d. Lands acquired by either of the two last treaties with the Miami tribe of Indians in the State of Indiana, or wbich may be acquired of the Wyandot tribe of Indians in the State of Ohio, or other Indian reservation, to which the title has been or may be extinguished by the United States at any time during the operation of this act.
4th. Sections of land reserved to the United States, alternate to other sections granted to any of the States for the construction of any canal, railroad, or other public improvement.
5th. Sections or fractions of sections included within the limits of any incorporated town.
6th. Every portion of the public lands which has been selected as a site for a city or town.
7th. Every parcel or lot of land actually settled and occupied for the purpose of trade, and not agriculture.
8th. All lands on which are situated any known salines or mines.
Persons claiming the benefit of this act are required to file duplicate affidavits, such as the law requires, and to furnish proof by one or more disinterested wito negres, to your entire satisfaction, of the facts necessary to establish the three requisites pointed out in the commencement of these instructions.
The witnesses are to be first duly sworn or affirined to speak the truth, and the whole truth, touching the subjects of inquiry, by some officer competent to admin. ister oaths and affirmations; and, if not too inconvenient by reason of distance of residence from your office, or other good cause, must be examined by you, and the testimony reduced to writing in your presence, and signed by each witness, and certified by the officer administering the oath or affirmation, who must also join you in certifying as to the respectability and credit of each witness.
In case adverse claims shall be made to the same tract. each claimant must be notified of the time and place of taking testimony, and allowed the privilege of cross-examining the opposite witnesses, and of producing counter proof, which should also be subject to cross-examination
When, by reason of distance, sickness, or infirmity, the witnesses cannot come before you, you are authorized to receive their depositions; which must be in all other resposta, conformable to the within regulations.
The notice of adverse claimants should be in writing, and should be served in time to allow at least a day for every twenty miles the party may have to travel in going to the place of taking 'evidence. The proof, in all cases, should consist of a simple detail of facts merely, and not of statements in broad or general terms, involving conclusions of law. It is your exclusive province to determine the legal conelusions arising from the facts. For instance, a witness should not be permitted to state that a claimant is the “head of a family," &c., following the words of the law, but should set forth the facts on which he grounds such allegation : because such a mode of testifying substitutes the judgment of the witness for yours, and allows him not only to determine the facts, but the law. A witness may possibly conscientiously testify that a minor son living with a widowed mother was the head of the family; and in another case, similar in point of fact, another witness, equally conscientious, might testify that the widowed mother was the head of the family. There cannot be a uniform construction given to the law, if it is carelessly left to the opinion of every witness. You are therefore instructed not to receive as testimony or proof, a general statement which embodies, in general terms, the conclu. sions of law, without stating the facts specifically.
The witnesses must state, if the pre-emptor be the head of a family," the facts which constitute bim such, whether a husband, having a wife and children, or a widower, or an unmarried person under twenty-one years of age, having a family, either of relatives or others, depending upon him, or hired persons, or slaves.
All the facts respecting the settlement in person, inhabitancy, or personal residence, the time of commencement, the manner and extent of continuance, as well as those showing the apparent objects, should be stated.
It niust be stated, that the claimant made the settlement on the land in person; that he has erected a dwelling upon the land; that the claimant lived in it, and made it his home, &c. By this means you will be enabled to determine whether or not the requisites of the law bave been complied with in any given case. Should you decide against a claimant, who, feeling dissatisfied with such decision, may request, in writing, the opinion of this office thereon, you will forthwith forward all the original papers touching said claim, and a brief report of your reasons for rejecting it; and, in the meantime, will not permit the land claimed to be entered or sold without an order from the Department.
The affidavit of the claimant in reference to the fact of settlement, &c., need not be required. It is in no case legal evidence on these points, and therefore should not form a part of the proof in reference thereto. The only affidavit required of tho claimant is that prescribed by the 13th section of the act, which is to be taken before the Register or Receiver. (See Form C, hereto annexed.)
No entry must be permitted until this affidavit is taken. Duplicates thereof must be signed by the claimant, and the fact of the oath being taken must be certified by the Register or Receiver administering it.
The forms for applications, receipts, and certificates, will be the same as those used for private entries, the distinct provision for land subject to private entry rendering a separate form for lands of the latter description unnecessary.
The proof filed by every claimant must show the time of the commencement of the settlement; a claimant is bound to prove his right to and enter all the land embraced by his declaratory statement, if liable to the operation of the act.
The act of 1843 provides for the rights of parties, who shall have died before oonsummating their claims. The only things required of a purchaser of public lands are an application in writing to the Register and payment for the tract.
DECLARATORY STATEMENT OF A SETTLER ON LAND SUBJECT TO PRI
VATE ENTRY AT THE DATE OF SETTLEMENT, REQUIRED BY THE FIFTEENTH SECTION OF THE ACT OF 4th SEPTEMBER, 1841.
[FORM A.] For cases where, at the date of the law, the land claimed was suhject to private entry.
I, A. B., of 6 being (the head of a family, or widow, or single man over the age of twenty-one years, as the case may be, and a citizen of the United States, or having filed my declaration to become a citizen as required by the naturalization laws, as the case may be) have, since the first day of June, 1840, to wit.: on the day of , A. D., 185-, settled and improved the quarter of section, number — in township number, of range number —, in the district of lands subject to sale at the land office at —, and containing -acres, which land was subject to private entry at the passage of the act of 4th September, 1841; and I hereby declare my intention to claim the said tract of land as a pre-emption right under the provisions of said act of 4th September, 1841. Given under my hand this
A. D., 185, (Signed)
A. B. In presence of
[FORM B.) For cases where land claimed shall have been rendered subject to private entry since the
date of the law. I, A. B., of being (the head of a family, or widow, or single man over the age of twenty-one years, as the case may be, a citizen of the United States, or having filed my declaration to become a citizen as required by the naturalization laws, as the case may be,) have, since the first day of A. D., 185, settled and im. proved the quarter of section, number
in township number of range number in the district of lands subject to sale at the land office at
-, and containing acres, which land has been rendered subject to private entry since the passage of the act of 4th of September, 1841, but prior to my settle ment thereon; and I do hereby declare my intention to claim the said tract of land as a pre-emption right, under the provisions of said act of 4th September, 1841. Given under my hand, this
A. D., 185— (Signed)
A. B. In presence of
Affidavit required of Pre-emption Claimant. I, A. B., claiming the right of the pre-emption under the provisions of the act of Congress, entitled “an act to appropriate the proceeds of the sale of the public lands, and to grant pre-emption rights,” approved September 4, 1841, to the quarter of section, number -, of township number of subject to sale at -, do solemnly swear (or affirm, as the case may be) that I have never bad the benefit of any right of pre-emption under this act; that I am not the owner of three hundred and twenty acres of land in any State or Territory of the United States, nor have I settled upon and improved said land to sell the same on speculation, but in good faith to appropriate it to my own exclusive use or benefit; and that I have not, directly or indirectly, made any agreement or contract, in any way or manner, with any person or persons whatsoever, by which the title which I mny
acquire from the Government of the United States should inure, in whole or in part, to the benefit of any person except myself. (Signed)
A. B. I, C. D., Register (or E. F., Receiver) of the Land Office at do hereby cer tify that the above affidavit was taken and subscribed before me this
day of A. D. 185(Signed)
C. D., Register;
E. F., Receiver. AN ACT TO APPROPRIATE THE PROCEEDS OF THE SALES OF THE PUB
LIC LANDS, AND TO GRANT PRE-EMPTION RIGHTS. Sec. 10. And be it further enacted, That from and after the passage of this act, every person, being the head of a family, or widow, or single man over the age of twenty-one years, and being a citizen of the United States, having filed his declaration of intention to become a citizen, as required by the naturalization laws, who, since the first day of June, A. D., eighteen hundred and forty, has made, or shall hereafter wake, a settlement in person on the public lands to which the Indian title has been, at the time of such settlement, extinguished, and which has been, or shall have been, surveyed prior thereto, and who shall inhabit and improve the same, and who has or shall erect a dwelling thereon, shall be and is hereby authorized to enter with the Register of the Land Office for the district in which such land may lie, by legal subdivisions, any number of acres not exceeding one hundred and sixty, or a quarter section of land, to include the residence of such claimant, upon paying to the United States the minimum price of such land, subject, however, to the following limitations and exceptions: No person shall be entitled to more than one pre-emptive right by virtue of this act; no person who is the proprietor of three bundred and twenty acres of land in any State or Territory of the United States, and no person who shall quit or abandon his residence on his own land to reside on the public land in the same State or Territory, shall acquire any right of pre-emption under this act; no lands included in any reservation, by any treaty, law, or proclamation of the President of the United States, or reserved for salines, or for other purposes; no lands reserved for the support of schools, nor the lands acquired by either of the two last treaties with the Miami tribe of Indians in the State of Indiana, or which may be acquired of the Wyandot tribe of Indians in the State of Ohio, or other Indian reservation to which the title has been or may be extinguished by the United States at any time during the operation of this act; no sections of land reserved to the United States alternate to other sections granted to any of the States for the construction of any canal, railroad, or other public improvement; no sections or fractions of sections included within the limits of any incorporated town; no portions of the public lands which have been selected as the site for a city or town; no parcel or lot of land actually settled and occupied for the purposes of trade, and not agriculture; and no lands on which are situated any known salines or mines, shall be liable to entry under and by virtue of the provisions of this act. And so much of the proviso of the act of twenty-second of June, eighteen hundred and thirtyeight, or any order of the President of the United States, as directs certain reservations to be made in favor of certain claims under the treaty of Dancing-rabbit Creek, be, and the same is hereby repealed. Provided, that such repeal shall not affect any title to any tract of land secured in virtue of said treaty.
Sec. 11. And be it further enacted, That when two or more persons shall have settled on the same quarter section of land, the right of pre-emption shall be in him or her who made the first settlement, provided such persons shall conform to the other provisions of this act; and all questions as to the right of pre-emption arising between different settlers shall be settled by the Register and Receiver of the dis