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entry may be made by him, with credit for the money paid.-(Commissioner's letter to Taylor Flick, of September 27, 1875, case of Ludwig Hartz.)
9. The timber culture act of March 13, 1874, recognizes a contestant as a party in interest, and allows him, if successful in the contest, a preference right to enter the land either under the timber culture or bomestead laws.—(Commissioner's letter to the register and receiver at Concordia, Kans., of October 30, 1875, case of Kile vs. Wilson.)
10. In a case in which one party made a timber culture entry, and the next day another party filed a pre-emption declaration for the same tract, the latter alleging settlement as of a prior date, it was held that the preemptor's right took effect at date of settlement, and that of the timber culture claimant at date of entry; that the pre-emptor would have to prove his date of settlement before entering, and to give his adversary notice when about to make proof; or that should an affidavit be presented calling in question the alleged date of settlement and compliance with law, and asking for a hearing to be ordered to determine the rigbts of the parties in interest, it would receive prompt attention.-(Commissioner's letter to Lars O. Stroud, of March 27, 1876.)
11. The filing of the application and the affidavit, together with the payment of the fee, are essential prerequisites to the allowance of the entry, and he obtains the priority of right who first complies with the conditions. A verbal application can give no priority under the law, which recognizes only the formal application in writing.–(Secretary's letter of May 15, 1876, case of Daymude vs. McNeely, arising in Lincolo district, Nebraska.)
12. The Eucalyptus, or Australian gum tree, is indigenous to warm climates, and is considered well adapted for planting under the timber culture laws on lands situate in the southern part of California.-(Commissioner's letter to Amos Harris, of July 17, 1876.)
13. In case of the contest of a timber culture entry, if the entry is reJinquished after the initiation of the contest, the relinquishment of the other party does not defeat the preference right of the contestant to enter as given in the law.-(Secretary's letter of March 19, 1877, case of Sherman vs. Atkins, and Gilbert vs. Vermillion, Larned land district, Kansas.)
14. Where a party applies to enter under the timber culture laws, and bis application is held for investigation as to the character of the land, it appearing by the plats to be timber bearing, the application reserves the land for a reasonable time from further disposition to any gther claimant, thereby affording the applicant an opportunity to perfect his entry thereof, should it be decided to be properly subject to the operation of the timber culture laws.-(Secretary's letter of July 31, 1876, case of Lamb vs. Reeser, Kirwin land district, Kausas.
15. The rulings of the General Land Office restricting entries under the timber culture laws to “ technical quarter sections” have been so far modified as to permit entries of parts of quarter sections, in a compact body not to exceed 100 acres.-(Commissioner's letter to register and receiver at North Platte, Nebr., of December 12, 1876, case of Frederick Bran.)
16. A strict compliance with the timber culture law in the matter of breaking, cultivating, &c., is required. The party must perform, or cause to be performed, the act of breaking ten acres of land within a period of one year from date of entry. Breaking done before date of entry cannot be appropriated by the party entering, and be claimed by
him as a compliance with the statute.—(Secretary's letter of December 23, 1876, case of Gepner vs. Miller, Concordia land district, Kansas.)
17. In the case of the death of a party having made a timber culture entry, who leaves a widow and heirs, his rights under the entry go to the heirs and not to the widow, contrary to the rule which prevails in similar cases arising under the homestead laws.—(Commissioner's letter to W. M. Robertson, of March 10, 1877.)
18. The timber culture laws in offering a land bounty for the production of timber on the western prairies had in view, not fruit trees or shrubbery, or trees of subordinate importance, but the object was to encourage the growth of what are known as “timber trees,” comprising oak, asb, elm, and such other trees as are commonly used in ship anil house building. The osage orange, although it attains a large growth in favorable localities, and is much used elsewhere for hedges, its wood being serviceable also for various purposes, is not of the class com. monly used for building, to encourage the growth of which the bounty is offered, and hence its cultivation would not satisfy the legal require. ments.-(Commissioner's letter to J. M. Easter, of April 9, 1877.)
19. Wbere a tract of public land is entered under the timber culture laws and the entry canceled, the tract is thereafter open to entry by preemption, but subject, if the timber culture entry was contested, to the preference right of the contestant to enter it under the homestead or tiin ber calture laws.-(Secretary's letter of May 28, 1877, case of Tewks. bury and Christensen vs. McPeck, New Ulm land district, Minnesota.)
20. For a tract of public land to be subject to timber culture entry the section embracing it must be naturally devoid of timber. No rule can be prescribed as to the number or kind of trees sufficient to give character to a section as timber bearing, and excluded from the operations of the timber culture laws, but cases involving the point must be decided on their merits as they arise.—(Comunissioner's letter to C. C. Sprigg, of July 5, 1877.)
21. Where a party enters for timber culture land which was formerly broken up and cultivated, he is not required to do the prescribed breaking on land not before broken, but he may go over the land formerly broken and again break it and prepare it for the reception of the trees, to the extent of area and in the periods prescribed.-(Commissioner's letter to David D. Hoag, of July 18, 1877.)
SOUTHERN PUBLIC LANDS.
Congress, on the 22d June, 1876, passed an act repealing section 2303 of the Revised Statutes of the United States, which coutined the disposal of the public lands in the States of Alabama, Mississippi, Louisiana, Arkansas, and Florida to the provisions of the homestead laws. It also provided that the public lands affected thereby should be offered at public sale, as soon as practicable, from time to time, and according to the provisions of existing law, and that they should not be subject to private entry until they were so offered.
In carrying this law into effect, five presidential proclamations bare been issued for offering at public sale the lands in the several land dis. tricts in the State of Arkansas. These proclaimed offerings to take place as follows: On the 1st October, 1877, at the district land office at Harrison ; on the 22d of the same montb, at the district office at Little Rock; and on the 4th February, 1878, at the offices at Camden, Little Rock, and Dardanelle, respectively.
Preliminary, to issuing the proclamations it was necessary to make lists of the lands, and subject the same to careful examination in connection with the records of this office and of the district offices, to ascertain the true condition thereof, with the view to exclude from the offerings any not vacant and unappropriated.
This was a work of some magnitude, the lands aggregating about nine million acres.
Proclamations will be issued and offerings authorized as soon as practicable for the sale of the public lands in the other States named, according to the requirements of said act.
SOLDIERS' ADDITIONAL HOMESTEADS.
In consequence of frauds baving been committed in making soldiers additional homestead entries under section 2306 of the Revised Statutes, as related in my last annual report, page 119 et seq., regulations bave been established to prevent similar frauds hereafter, by which, where the claims were actually in the hands of agents or attorneys at the date of my circular of May 22, 1876, in regard to this class of cases, and still remain in their bands, the same will be recognized, but to this eud: The papers held by agents or attorneys must be forwarded to this office, in order that a critical examination of the same may be made, upon wbich, if found admissible, they will be returned to the proper parties duly certified as to their sufficiency, and may thereafter be accepted by registers and receivers when presented for location.
If it shall appear that the party has already used bis additional homestead privilege, or if, from any other cause, the right cannot be admitted, the parties will be prowptly advised of the facts in each case.
Where the rights yet remain in the hands of the parties originally interested, wbich have never been presented for satisfaction or made the subject of transfer or agency, the regulations require that a full recital of military service be presented to this office, with due proof of the identity of the party making the claim, and with proper reference to his original homestead entry, giving the name of the district office, date and pumber of entry, and description of the land. In addition, a detailed statement, under oath, must be filed by the party in interest, setting forth the facts respecting his right to make the entry, and containing his declaration that he has not in any manner exercised his right, either by previous entry or application, or by sale, transfer, or power of attorney, but that the saine remains in him unimpaired. He must also declare, under oath, that he has made full compliance with the homestead law in the manner of residence upon, cultivation and improvement of, his original homestead entry; and should further recite whether or not he has proved up his claim and received a patent for the land.
When these papers are filed and examined, they will, if found satisfactory, be returned, with a certificate attached recoguizing the right of the party to make additional eutry under the law; and when preseuteil with a proper application at any district land office, either by the party entitled or his agent or attorney, they will be accepted by the register and receiver, and forwarded with the entry papers to this office in the usual manner.
In this office special proceedings are provided for in relation to all (ases of this kind to be passed upon, wbich must secure the most care. ful examination and the detection of any error or intended fraud.
D.-PRIVATE LAND CLAIMS.
During the fiscal year which ended Jane 30, 1877, the following cases have been disposed of: California private land claims patented
21 New Mexico private land claims patented New Mexico dodation land claims patented
1 Oregon and Wasbington Territory donation land claims patented
377 Louisiana and Florida private land claims patented....
20 Indian claims patented ...
99 Final approvals of entries made with certificates of location, act of Juoe 22, 1860, and supplemental legislation...
73 Cases in Louisiana and Florida for which script has been issued.
11 Total .....
607 In addition to the foregoing, there have also been examined, approved, and recorded the assignments of 326 certificates of location under said act of June 22, 1860, and supplemental legislation.
The above statement bas reference only to such cases as have been finally settled. Preliminary examinations have been made in a large Damber of cases, some of which have been passed for patent, while others bave been suspended on account of imperfections, and are now the subjects of correspondence. A number of cases have been decided, and are now on appeal, or waiting the expiration of the time within which appeal may be taken, or, having been decided on appeal, are now waiting the execution of the decision by the proper officers.
The total nuinber of letters received in this division of the office during the fiscal year was 1,032, and the total number of letters written was 1,135, coverivg 1,375 record pages.
Decisions of the Supreme Court of the United States affecting private land claims in New
Mexico confirmed by the act June 21, 1860, (Statutes at Large, vol. 12, p. 71.)
No. 73.—OCTOBER TERM, 1876.
JOHN G. TAMELING, PLAINTIFF IN ERROR, 18. THE UNITED STATES FREEHOLD AND EMI
In error to the supreme court of the Territory of Colorado.
Mr. Justice Davis delivered the opinion of the court :
This is an action by the defendant in error against Tameling, to recover possession of one hundred and sixty acres, in the county of Costilla avd Territory of Colorado. The tract is situate within the exterior boundaries of a larger one, known as the “ Cos. tilla estate," which was severed from the “Sangre de Cristo grant." The latter is known and designated as "claim No. 14 of Charles Beanbien," in the letter of the Sec. retary of the Interior to the Speaker of the House of Representatives, bearing date Febrnary 11, 1857. With that claim were transmitted copies of the grant, order of prefect's coort, notice of claim, derd of administrator, testimony, and report.
The case was submitted to the district court on an agreed statement of facts. Judgment was rendered in favor of the plaintiff below. It was affirmed by the supreme court of the Territory, and Tameling sued out this writ of error.
The determiuation of this case depends upon the effect of the act of Congress "to confirm certain private land claims in the Territory of New Mexico.” approved June 21, 1860. (12 Stat., 71.) Did the act confirm the Sangre de Cristo grant to the extent of the exterior boundaries of the claim? If it did, the judgment below must be affirined. If it did not, inasaiuch as no specific portion of the land within those boundaries was severed from the remainder and contirmed to the claimants, the plaintift below, who derives title under them, has not shown his right to the demanded premises, in possession of the defendant below, and the judgment must be reversed.
The plaintiff in error insists that, under the Mexican colonization laws in force when the grant was made, not more than eleven square leagues for each petitioner could be
lawfully granted. There were, in the present instance, but two petitioners, and the lands within the boundaries of the grant are largely in excess of that quantity.
We have repeatedly held that individual rights of property, in the territory ceded by Mexico to the United States, were not affected by the change of sovereignty and jurisdiction. They were entitled to protection, whether the party had the full and absolute ownership of the land, or merely an equitable interest therein, which required some further act of the Government to vest in bim a perfect title. The duty of providing the mode of securing those rights and fulfilling the obligatious wbich the treaty imposed was within the appropriate province of the political department of the Government. In discharging it, Congress required that all titles to real property in California, whether inchoate or consummate, should undergo judicial examination. If any claimant failed to avail bimself, within a prescribed time, of the provisions of the act of March 3, 1851, and assert his rigbts thereunder, they were completely barred, and the land covered by the claim reverted to the public domain. The California land claims disposed of in this court were generally asserted in a direct proceeding against the United States. It became our duty, as it bas been that of the board of commissioners and of the district court, to decide on the validity of the claim upon the documentary and other evidence incorporated in the record. We were required to be governed by the treaty of Guadalupe Hidalgo, the law of nations, the laws, usages, and customs of the government from which the claim was derived, the principles of eqnity, and the decisions of this court, as far as they were applicable. Were we exer cising appellate jurisdiction over the proceedings of a court or officer especially appuinted to determine the validity and extent of the grant in question, it would be our duty to either affirm or reverse the decision, pursuant to the rules wbicb Congress bas prescribed for our government. But that body adopted a different mode for the adjustment of land claims in New Mexico. By the oth section of the act of 1854, (10 Stat., 308,) the duty was expressly enjoined upon the surveyor general of that Territory to ascertain the origin, nature, character, and extent of all such claims, under the laws, usages, and customs of Spain and Mexico. He was empowered, for that purpose, to issue notices, summon witnesses, administer oaths, and perform all necessary acts in the premises. He was required to make a full report on all such claims, denoting the various grades of uitle, with his decision as to the validity or invalidity of each of the same, under the laws, usages, and customs of the country before the cession to the United States. That report, accordii g to a form to be prescribed by the Secretary of The Interior, was to be laid before Congress for such action as might be deemed just aud proper:
It will thus be seen that the two modes for the determination of Spanish and Mexican land clains were radically different. In California, a procedure essentially judicial in its character is provided for securing an adjudication of them, with the right of ultimate appeal, by either the claimant or the United States, to this court. The surveyor general of New Mexico is clothed with large powers, and required to decide upon the validity of each claim. Fipal action on the subject is reserved to Congress. Such action is, of course, conclusive, and, therefore, not subject to review in this or any other forum.
It is obviously vot the duty of this court to sit in judgment upon either the recital of matters of fact by the surveyor general or bis decision declaring the validity of the grant. They are embodied in his report, which was laid before Congress for its consideration aud action. We need only say that the facts are distinctly set forth that Luis Lee and Narciso Beaubien, September 27, 1843, petitioned the then civil and military governor of New Mexico "for a grant of land in what is now the county of Taos, embracing the Costilla, Culebra, and Trinchera Rivers, including the Rito of the Indians, and Sangre de Cristo to its junction with the Del Norte River;" that the petition was referred by the governor to the prefect, with instructions to give the possession asked for by the petitioners; that they were put in possession, with the boundaries contained in the petition, “ vesting in them, their children and successors, a title in fee to said lands." After setting forth that, by the death of one of the parties, Charles Beaubien, as bis heir at law, inherited the uudivided balfof the land, and that he acquired the remainder from the administrator of the other grantee, the conclusion is reached that the grant is a good and valid one, and that a legal title vests in Charles Beaubien to the land embraced within the limits contained in the petition. The grant was approved and recommended for confirmation by Congress.
Congress acted upon the claim “as recommended for contirmation by the surveyor general.” The condirmation being absolute and unconditional, without any limitation as to quantity, we muss, regard it as effectual and operative for the entire tract.
Objections to the validity of the grant have been earnestly and elaborately pressed upon our attention. This was matter for the consideration of Congress, and we deem ourselves concluded by the action of that body. The phraseology of the confirmatory act is, in our opinion, explicit and unequivocal. We have at the present term, in Ryan et al. vs. Carter et al., recognized and eviforced as the settled doctrine of this court that such au act passes the title of the United States as effectually as if it contained in