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Cases in each of the classes mentioned, except class 22, have been confirmed under section 2450 of the Revised Statutes.
It is believed that these classes will cover all agricultural entries falling under gen. eral rules.
Special cases not covered by the foregoing rules, in which equitable relief should be atforded, will probably arise. Such cases will be submitted as special, with letters of explanation.
I respectfully request that, if you should approve the accompanying rules, you will submit them to the Hon. Attorney General for his concurrence." I am, sir, very respectfuly,
J. A. WILLIAMSON,
Commissioner. Hon. CARL SCHURZ, Secretary of the Interior.
DEPARTMENT OF THE INTERIOR,
OFFICE OF THE SECRETARY,
Washington, D. C., May 18, 1877. SIR: I return berewith, approved by the Attorney General and myself, the additiopal rules tradsinitted with your letter of the 25th ultimo, numbered from 17 to 27, both inclusive, to govern your office in the disposal of suspended entries of public lands under various laws. I am, sir, very respectfully, your obedient servant,
Secretary. Hon. J. A. WILLIAMSON,
Commissioner General Land Office.
Under section 2450 of the Revised Statutes of the United States, the following rules. additional to those established under the act of August 3, 1846, are provided for the government of the Commissioner of the General Land Office:
17. All entries where the pre-emption affidavit was taken before an officer authorized to administer oaths, when, on account of bodily infirmity, the party cannot appear at the local office.
18. All entries where the pre-emption affidavit was taken before come officer otber than the register or receiver, and the pre-emptor died before the defect could be cured.
19. All entries maile upon land appropriated by entry or selection, but which entry or selection was subsequently canceled for illegality.
20. Pre-emption entries in which the party has shown good faith, but did not, through ignorance of the law, declare his intention to become a citizen of the United States until after he inade bis entry.
21. All entries based upon pre-emption proof where the party bad failed to file a declaratory statement therefor, provided no adverse claim attached prior to entry.
22. All entries of unoffered land, based upon a second declaratory stateinent, where the same was filed between Juve 22, 1874, and June 30, 1875.
23. All pre-emption entries in wbich the affidavit is defective in not showing that the party was not the owner of 320 acres of land in any State or Territory, and had never had the benefit of the act, the form for which affidavit was furnished by the local land office.
24. All homestead entries in which, by reason of ignorance of the law, sickness of the party or his family, the final proof was not made within the period prescribed by statate, but in other respects the law has been complied with.
25. All homestead entries in which the party failed to settle on the land within the time required by law by reason of physical disability, and where good faith is shown.
26. All homestead entries by mistake made in the name of the wrong party, but where on fival proof tbe error may be corrected without prejudice to another's right.
27. In all homestead entries where the husband has deserted his wife and children, if he have any, who bave in good faith complied with the homestead law by residence upon and cultivation of the land, and final proof shall be made by the wife, or, in case of her death, ly her heirs or their legal guardians, such entry shall be confirmed, and patent shall issue to the parties entitled thereto.
J. A. WILLIAMSON,
Commissioner General Land Office. We concur in the above rules, May & 1877.
C. SCHURZ, Secretary of the Interior. CHAS. DEVENS,
M'KELVEY VS. RENCASTLE.
Under the act of Congress approved March 3, 1875, entitled "An act for the relief of settlers on lands within railroad limits,” it is held that the grants must be forfeited and the granted sections restored to the public domain by reason of failure to build the road for whose benefit lands were withdrawn, in order to entitle the settler to relief.
DEPARTMENT OF THE INTERIOR,
GENERAL LAND OFFICE,
Washington, D. C., June 7, 1876. GENTLEMEN: The testimony in the contested case of George McKelvey vs. Thomas Rencastle, involving title to the south half of the southeast quarter and south half of the southwest quarter section 20, township 20, range 28 east, has been received and considered.
George McKelvey claims the land under the act of March 3, 1875.
Thomas Rencastle filed declaratory statement 4674 April 16, alleging settlement March 16, 1875.
Trial had at your office January 17, 1876. McKelvey applied at your office to enter eaid land under the act above quoted, August 20, 1875, but was refused by you on account of the filing of Rencastle. On appeal to this office, September 14, 1875, you were instructed to receive his application, noting thereon the date when it was refused, the filing of Rencastle being no bar to the same.
The application of McKelvey was based on bis entry made in your office on the 25th April, 1873, of the south balf of the northeast quarter and west half of the southeast quarter section 24, township 23 south, range 28 east, paying therefor the double minimum price.
Said tract at the date of the entry was within the 20-mile limits of the withdrawal of January 3, 1867, for the benefit of the Southern Pacific Railroad.
August 20, 1873, you were notified that, by the adjustment of the withdrawal, said tract was thrown outside the 20-mile limits and within the indemnity limits, and was, therefore, restored to the minimum price.
The act of March 3, 1875, bas reference to those grants op]y which have been declared forfeited, and the granted sections restored to the public don ain by reason of failure to build the road for whose benefit said lands were witbdrawn.
In this case the land covered by the original entry of McKelvey was not forfeited, and he is not, therefore, entitled to an additional entry under said act.
In my letter of September 14, 1875, the only question considered was whether the entry of McKelvey should be allowed for the tracts covered by the filing of Rencastle, and no pote was taken of the condition of the land covered by his original entry.
The entry of McKelvey is held for cancellation.
In regard to the claim of Rencastle I do not think it necessary to recite the testimony in the case, as it appears that on the 19th December, 1873, he filed for the southeast quarter section 20, township 20, range 28, which was canceled by my letter C of May 21, 1875, he having relinquished the same.
Under section 2261, Revised Statutes, bis second and present filing is illegal, and must therefore be held for cancellation,
You must notify the parties in interest of this action, and allow the usual sixty days for appeal. Respectfully,
U. J. BAXTER,
Acting Commissioner. REGISTER and RECEIVER,
LONG V8. HARRIS.
Under section 2265 of the Revised Statutes, a settler, who has failed to file his declaratory statement witbin three months from time of settlement, under the clause “his claim shall be forfeited and the tract awarded to the next settler, in order of time, on the same tract of land wbo bas given such notice and otherwise complied with the conditions of the law,” will be liable to forfeit his claim in favor of any person who, by settle. ment, makes a legal appropriation of the tract.
DEPARTMENT OF THE INTERIOR,
OFFICE OF THE SECRETARY,
Washington, D. C., May 2, 1877, SIR: I have considered the case of William L. Long 18. Stephen F. Harris involving the right to the north half of northwest quarter, southwest of northwest and northwest of southwest quarter of section 20, townsbip 24 north, range 6 west, Marysville, Cal., from your decision of June 29, 1876 adverse to the former.
You held the declaratory statement of Long for cancellation on the ground that he did not file within the time required by law, and that prior to said filing the adverse homestead right of Harris had attached.
The attorney for Long contends that under the provisions of section 2265 of the Revised Statutes, no forfeiture occurred by reason of failure to file within the time required by the statute, in the absence of the initiation of a claim under the pre-emption law, or, in other words, that only a claim initiated uuder said law can defeat the right of the prior settler.
I cannot agree with counsel in the position assumed.
To arrive at a correct conclusion in the case, the provisions of both the pre-emption and homestead laws must be considered.
Section 2265 is as follows: “Every claimant under the pre-emption law for land not yet proclaimed for sale is required to make known his claim in writing to the register of the proper land office within three months from the time of the settlement, giving the description of the tract and the time of settlement; otherwise bis claim shall be forfeited and the tract awarded to the next settler, in order of time, on the same tract of land, who bas given such notice and otherwise complied with the conditions of the law."
It is clearly provided that upon failure to file, the claim is forfeited, and the tract awarded to the next settler, who has given such notice and otherwise complied with the conditions of the law.
Section 2289 of the Revised Statutes provides that one quarter section or less of unappropriated public land, subject to pre-emption, may be entered as a homestead. The Supreme Court in the case of Johnson vs. Tousley, in discussing the effect of a filing, say:
* The words 'sball have given such notice' presuppose a case where some one has given sucb notice before the party who has thus neglected seeks to assert his right. If no other party has made a settlement or has given notice of such intention, then no one has been injured by the delay beyond three months, and if at any time after the three months, while the party is still in possession, he makes his declaration, and tbis is done before any one else bas initiated a right of pre-emption by settlement or declaration, we can see no purpose in forbidding him to make his declaration or in making it voidl when made. And we think that Congress intended to provide for the protection of the first settler by giving him three months to make his declaration, and for all other settlers by saying if this is not done within three months any one else who has settled on it within that time, or at any time before the first settler makes bis declaration, shall have the better right."
This language clearly indicates that in the opinion of the Court, any legal appropriation of ibe land, by settlement, will be a bar to the claim of the prior settler, otherwise the second settler would be injured by his delay, and subsequent assertion of right.
Long's right was forfeited by his neglect to file, and the homestead entry of Harris, being a notice of a claim made in compliance with a law for the disposal of the land in question, must be recognized as the notice provided for in the statute.
Your decision is therefore affirmed, and the papers transmitted with your letter of January 18, 1877, are herewith returned. Very respectfully,
Secretary. The COMMISSIONER OF THE GENERAL LAND OFFICE.
MINOR VS. BRIGGS.
But one pre-emption right is extended to the settler, and only one declaratory statement can be legally filed by the same party.
DEPARTMENT OF THE INTERIOR,
Washington, D. C., June 2, 1877. SIR: I have considered the case of William H. Minor vs. S. F. Briggs, involving the south balf of southwest quarter and north half of southwest quarter of section 7, township 6 north, range 2 east, Humboldt Meridian, Eureka, Čal., on appeal from
your decision of December 16, 1876, rejecting the claim of both, and holding their declaratory statements for cancellation.
The claims are based upon second declaratory statements filed for the same tract of land-the prior filing having been canceled for non-compliance with the law. It is contended by counsel for claimants that a second filing for the same tract is not prohibited by section 2261 of the Revised Statutes, which provides that “no persou shall be entitled to more than one pre-emption right by virtue of the provisions of section 2259; nor where a party has filed his declaration of intention to claim the benefits of such provisions for one tract of land, shall he file at any future time a secund declaration for another tract.”
But one pre-emption right is extended to the settler, and the filing of a declaratory statement is an essential feature of that right. If a settler may file a second vleclaratory statement for the same tract of land he may file a third or a fourth, and in this manner retain the possession and the right to purchase the tract for a long series of years without making actual payment for the same, a proceeding not contemplated by the statute, and in violation of its letter and spirit.
Your decision is, in my opinion, in accordance with the proper construction and interpretation of the statute, and is affirmed. The papers transmitted with yoor letter of February 13, 1877, are herewith returned. Very respectfully,
Secretary. The COMMISSIONER OF THE GENERAL LAND OFFICE.
H.-MILITARY BOUNTY LAND WARRANT DIVISION.
Summary of the work of this division during the year. Letters received.
2,502 Letters written
2,481 Number of pages of record occupied ......
2, 498 Number of warrants examined and transmitted to Recorder for patent......... 875 Number of agricultural college scrip certificates examined and passed as above. Number of certificates of revolutionary bounty land scrip issued and recorded under act of August 31, 1852 ..........
104 Amount of acres called for thereby......
....... 7,212 Number of warrants, the assignments of which have been approved ....
420 Number of certificates of scrip, the transfers of which by attorneys have been approved .
60 Number of certified copies of records, &c., made under section 461, United States Revised Statutes ...
217 Number of agricultural college scrip certificates reissued under act of June 20,
........................................... 1874.............. Number of patents issued under acts of August 10, 1790, (1,) July 27, 1842, (1,7)
and special act of April 11, 1860, “Porterfield warrants,” (7)... Amount of acres called for thereby..
MILITARY BOUNTY LAND WARRANTS AND SCRIP.
Land warrants. The amount of land located with military warrants granted under general laws for the year ending June 30, 1877, is 97,200 acres, to which should be added 280 acres called for by special warrants issued under the act of April 11, 1860, making an aggregate of 97,480 acres, which is less by 40,160 acres than the quantity reported for the preceding year.
Of this amount, 320 acres were located in virtue of warrants issued under the act of 1812, 4,760 acres under that of 1847, 9,160 acres under that of 1850, 120 acres act of 1852,82,840 acres act of 1855, and 280 acres under the special act above referred to.
A tabular statement, No. 6, will be found accompanying the report, in wbich is set forth in detail all the operations bad under the said sev. eral bounty land laws of 1847, 1850, 1852, and 1855, from the commencement of operations in virtue thereof down to the present time.
From this statement it will be learned that 12,907,480 acres of the
public lands have been located under the act of 1847, 12,784,040 acres under act of 1850, 678,080 acres under that of 1852, and 31,902,770 acres in virtue of the act of 1855, amounting in all to 58,272,370 acres, and that 23,701 bounty land warrants issued under all of said acts, and representing 2,701,940 acres, are still outstanding and unsatisfied.
In addition to this, it is to be observed that 124 warrants issued under act of 1842, and calling for 20,480 acres, and 60 warrants granted under the special act of April 11, 1860, for 2,400 acres, bave never been presented for satisfaction.
There have been 875 warrants examined, found free from all defects or objection, and passed to the recorder for patent.
The approval of the assignments of 420 warrants in like condition has been certified to.
It was stated in the last annual report tbat 4,577 warrants were then on file, the location of which has been suspended, and the same withheld from patent for various defects. Of this number, 150 warrants have since been relieved and the patents therefor issued. There still remain 4,427 warrants suspended for material defects in the chain of title, or by reason of caveats filed against the satisfaction thereof either by the Commissioner of Pensions or by individuals claiming an interest therein.
Every suspended case has been promptly relieved and disposed of as soon as the objections to the satisfaction thereof were removed or cured.
Owing to the inadequacy of clerical force the necessary annotations as to the issue of patents under the act of 1855, and of the transmission or delivery thereof, bave not been made. This should be done as soon as practicable, as answers to inquiries in relation thereto can now be made only upon the withdrawal from the files of each specified case; whereas, if the proper notes were entered upon the abstracts, the latter would furnish an easy and ready response. Tois course has been practiced under all the preceding bounty land laws, and should be followed under that of 1855, involving, as that act does, a greater amount of land bounty than all the preceding laws combined.
Revolutionary bounty land scrip. Scrip bas been issued to the extent of 7,212 acres under the provisions of the acts of Congress of August 31, 1852, and June 22, 1860, in satisfaction of that amount of bounty land warrants issued by the State of Virginia to the officers, soldiers, and seamen of her Continental and State line and State navy, during the war of the Revolution, the just and fair obligatious of which commonwealth, under the bounty land laws thereof, the General Goverument has assumed; provided the same were allowed by the proper authorities thereof prior to March 1, 1852.
The issue of the scrip in question for the current year is embraced in 104 certificates, duly recorded, and 60 certificates of approval as to the transfer of the same have been indorsed thereon,
The amount of this class of scrip received in payment of the public lands as so much cash, at the rate of $1.25 per acre for the year, is 4,482 acres.
For the satisfaction of these Virginia military land warrants there are now pending 319 claims, calling for 100,508 acres, of which 11 claims have been presented during the year, the amount of which is 8,110 acres. Every perfected claim bas been duly commuted into scrip.
Agricultural college scrip. Of tbis class of scrip 224 pieces, calling for 35,840 acres, have been examined as to the regularity and validity of title thereto, and passed