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entry, thus relieving the settler from the expense of a hearing to establish the facts in detail respecting the homestead claimant's residence, cultivation, &c. Hearings are in constant progress for the investigation of the first named conflicting claims, but they are not now held in the cases of homestead entries except where, in the record itself, or upon allegations presented by the company, sufficient reason is found for the belief that the entry was invalid.
Tbese bearings are beld before the district officers, and are reported by them to this office. Upon an examination of the testimony an award is made, subject to appeal within sixty days to the Secretary of the Interior. If no appeal is filed the award is made final.
Up to the close of the fiscal year 2,729 cases had been received and docketed, of which 2,449 have been acted upou, and either settled by award, so far as the action of this office is concerned, or remanded for further testimony or other action at the local offices, leaving on the dockets 280 cases received prior to June 30, 1877. It may be remarked tbat 1,888 of those cases have been finally disposed of and closed upon the records.
A large number of ex parte cases involving entries permitted upon alleged rights acquired prior to the withdrawal of lands within railroad limits, have also passed examination, and have either been approved for patent or furtber suspended, according to the nature of the proofs presented in each case. Tbe work in this branch of the division is in a satisfactory condition.
The number of letters received was 3,990. Five thousand two hun. dred and seventy-five letters were written, covering 3,726 pages of record.
Thirty-seven patents were issued, covering 282 pages of record, and embracing 23 approved transcripts, covering 26 pages.
The reports of construction received during the year aggregate 361.46 miles, wbich, added to the entire length of constructed road previously reported under the land grant system, and the length of roads in the State of Illinois heretofore omitted, amount to 14,343.18 miles, distributed as follows:
States and Territories.
States and Territories.
14, 343. 18
In their appropriate place in this report will be found carefully pre pared tables showing the condition of the adjustment of the various land grants at the close of the fiscal year ending 30th June last. .
The more importaut changes of ruling affecting railroad grants, promulgated since the date of the last annual report, are fully set forth in the text of the decisions forming a part of and found in their appro. priate place in this report.
By the decision of the Supreme Court in the case of the Leavenworth, Lawrence and Galveston Railroad Company vs. United States, and Missouri, Kansas and Texas Railroad Company vs. Same, it was declared that the Osage ceded lands in Kansas formed no part of the grants to the State of Kansas for said companies. The patents issued by the Government therefor were vacated, and by the act of August 11, 1876, the lauds were thrown open to settlement and entry. Steps were immediately taken to carry into effect the terms of that statute, and up to the 30th June last 3,715 filings and 1,871 entries had been perunitted.
Numerous controversies havearisen between settlers upon these lands, and are being rapidly disposed of. In my last annual report mention was made of the decision of the Supreme Court in the case of Newhall 08. Sanger, wherein it was declared that the lands within fraudulent and rejected exterior limits of Mexican and other private grants in Califordia were 6 reserved," and not “public lands;" and that in consequence thereot did not pass to the railroad companies under their grants made during such reservation. Reference was made also to the fact that lists of such lands erroneously patented to said companies were being prepared as the bases for the institution of suits to vacate such patents. Thus far but little progress has been made in this line.
The grant to the California and Oregon Railroad Company has been examined, and a list of the tracts erroneously patented has been prepared. A demand has been made upon this company for a surrender of the patents covering such lauds, but thus far no reply has been received. Data for use in the suit are now being prepared, and the matter will be reported, with proper recommendations, at an early date. The delay in preparing these lists has been caused by my limited clerical force, and owing to the fact that on account of the importance of the subject, inex. perienced clerks cannot be permitted to perform the work.
By an act of Congress approved April 21, 1876, certain illegal entries within the limits of railroad grants are confirmed, and patents directed to issne thereon. While but few patents have been issued under said act, the work of carrying into effect its provisions bas formed a great part of the labors of this division. Many difficulties are met with in the execution of this law, owing more to its ubiguity than the complication of the cases brought within its provisions.
If a valid pre-emption claim subsisted to a tract of land at the date of attachment of a railroad company's right, it excepted the tract from the operation of the grant, and it becomes liable to appropriation by a second claimant, notwithstanding the land has been patented to the company, under the former rulings of the Department.
DECISIONS AFFECTING RAILROAD GRANTS.
DEPARTMENT OF THE INTERIOR,
Washington, October 8, 1877. Sir: I bave considered the case of Thomas McQuat vs. The Winona and Saint Peter Railroad Company, involving the southwest quarter section 29, township 110, range 27, New Ulm, Minn., on appeal from your decision of January 26, 1877, adverse to Mr. McOpat. • The tract in question is within the six mile limits of the grant to the Trapsit, pow Winona and Saint Peter Railroad Company, the right of which to the lands included in its grant attacbed July 17, 1857.
This land was approved to the State of Minnesota for the benefit of said company December 1, 1802.
The records of your office show, that one Timothy T. White filed declaratory statement 12788 for said tract, May 26, 1857, alleging settlement March 1, of the same year.
M.Ouat applied to file for said tract May 31, 1876, alleging settlement July 5, 1868, but his application was refused by the local officers for the reason that the land bad been certified to the railroad company.
You rejected McQuat's application on anthority of my predecessor's decision in the case of T. D. Scott vs. The Hastings and Dakota Railroad Company, decided May 8, 1876. Since your decision was rendered, Mr. McOuat has submitted two affidavits, showing the grounds on which his claim is based.
The first of these affidavits is made by Spencer Sutherland, who alleges that Timothy White settled on the land in dispute in the spring of the year 1857, and built a house and resided upon and cultivated and improved said tract until late in the fall of that year, when, on account of the destruction of his house by a prairie fire, be left the land and did not thereafter return to it. He also states that McQuat has lived on said tract continuously since the year 1867, :/ ud has valuable improvements thereon. The second affidavit is that of the applicant himself, who alleges that he settled on said land in July, 1867, and has lived thereon with his family since the date of his settlement.
He also alleges that his improvements are worth the sum of $1,500.
The grant to the Territory of Minnesota o aid in the construction of a railroad from Winopa, via Saint Peter, to a point on the Big Sioux River south of the furty-fifth parallel of north latitude, is found in the 1st section of the act of Congress approved March 3, 1857, but the act expressly excepts from the grant any odd numbered sections of land, or parts thereof, wbich had been sold by the Government or to which the right of pre-emption bad attached at the time the line of said road was definitely fired, and certain otber lands are granted to said company in lien of lands thus lost. It is unnecessary to cite authorities to show that if i he pre-emption claim of White was a valid one at the time the right of the road attached in July, 1857, this tract was thereby excepted out of the grant, and if so excepted, it follows that it was improperly certified to the road.
Whether or not this tract inured to the grant, must depend upon the existence or non-existence of a valid pre-emption claim at the time the line of the road was definitely fixed.
If White's claim was valid at the date of definite location, then by the very terms of the act this tract was excepted from the grant, and a mere erroneous certification could not pass title to the company.
I do not think the case cited in support of your decision is in point, and I therefore direct that a bearing be ordered to determine the validity of the pre-emption claim of Wbite.
If the testimony taken on the hearing is of a character to show that White was a qualified pre-emptor, and that his claim was a valid and subsisting one at the time the right of the road attached, the company should be called upon to relinquish said tract to the United States.
If the company shall fail or refuse to relinquish, then you will report that fact to this Department, in order that proper steps may be taken to procure the cancellation of the patent to said company.
Your decision is reversed, and the papers transmitted with your letter of June 1, 1877, are herewith returned. Very respectfully,
Secretary. The COMMISSIONER OF THE GENERAL LAND OFFICE.
The words • public lands," in the first section of the act of April 21, 1876, were used in a special sense, meaning land within the limits of any land grant prior to the date of the receipt at the district office of the letter of withdrawal.
DEPARTMENT OF THE INTERIOR,
Washington, August 9, 1876. SIR: I have considered the case of Nancy H. Plouch (widow of Everard Plouch) vs. The Missouri River, Fort Scott and Gulf Railroad Company, involviog the right to the southeast quarter section 33, township 25, range 22 east, Independence district, Kansas, coming up on appeal by the forcuer from your adverse decision of January 25 last.
The land is within the limits of the grant to the company, which took effect, as per decision of this Department of April 7, 1876, in the Tinsman case, June 27, 1868. Withdrawal made June 12, 1869.
On May 16, 1863, one William N. Fly made homestead entry of the tract. He abandoned the land in August, 1866, and his entry was formally canceled August 22, 1868. Proof of abandonment being made at the instance of Everard Plouch.
October 28, 1868, said Plouch was permitted to make bomestead entry of the land
He died July 25, 1873. On October 12, 1875, bis widow, Nancy H., applied to make final proof, said proof showing settlement September 28, 1868. Affidavits accompanying it set forth tbat Plouch bought the improvements and possessory right of oue Stubblefield, who had occupied it for one year, and who had bought from Fly, the original homestead claimant.
This can only be introduced for the purpose of showing that Plouch had some legal or equitable right anterior to his homestead entry. Assuming the facts to be established as stated, I do not see tbat it can belp Plouch's claim, for it is so well settled as to be beyond question, that a homestead entry takes effect only from its date, and can have no retroactive effect.
It is well settled " that a homestead claim, to exclude land from a railroad grant, must be subsisting, and capable of being perfected at the time the road was definitely located.” (See Missouri, Kansas and Texas Railroad Company us: Block, Copp's Land Laws, 395; Sayers vs. Atcbison, Topeka and Santa Fé Railroad Company, Ib., 397; circular, August 15, 1872, Ib., 389.)
In this case the claim of Fly had been abandoned nearly two years, and was not capa. ble of being perfected.
It therefore did not operate to protect the land it covered from the grant, and the same daly attached at date of definite location, to wit, June 27, 1868. I think, therefore, the entry must be canceled, unless saved by the act of April 21 last, “ To confirm pre-emption and homestead entries of public lands within the limits of railroad grants," &c. The first section of said act provides, “That all pre-emption and homestead entries * * * of the public lands made in good faith by actual settlers upon tracts of land of not more than one hundred and sixty acres each within the limits of any land grant prior to the time when notice of withdrawal of the lands embraced in such grants are received at the local office, * * * and where the pre-emption and homestead laws have been complied with they shall be confirmed, and patents for the same shall issue to the parties entitled thereto.”
Plouch's entry is clearly within this section and entitled to confirmation, provided lands within the limits of the grant, after definite location of the line of route, and prior to withdrawal, may be considered public lands within the meaning of the statute.
Being somewbat in doubt as to the proper construction of tbis phrase as it occurs in the first section of said act as quoted, I, on the 29th ultiino, referred it, with a statement of this case, to the honorable Attorney General for his opinion. I am in receipt of his opinion, dated 4th instant, wherein he holds, after reciting the facts in the case and the material portion of the section, as follows: “In this connection you ask whether the section above quoted is applicable to the case of Plouch, and, more specifically, whether lands situated as those granted to the railroad company after its map of survey bad been filed and before notice of their withdrawal, can be termed public lands within the meaning of such section.
"The question is not whether lands in that situation are in general public lands, but whether from the context and other ineans of interpreting the above statute, it appears that Congress there intended by the pbrase 'public lands' to designate lands so situated.
"I tbink it plain that Congress in the above act used that phrase in a special sense, virtually being lands within the limits of any land grant prior to the time when notice of withdrawal is received at the local land office, &c., and therefore I conclude that the case of Plouch is included tberein."
I adopt this opinion as the true construction of the law and the proper decision of this case. Yon will therefore perinit the entry to stand and proceed to completion in conformity to law.
I reverse your decision, and return the papers in the case transmitted with your letter of May 19 last. Very respectfully,
Secretary The COMMISSIONER OF THE GENERAL LAND OFFICE.
Where a party fails to appeal from the action of the local officers, the award becomes final as to his right, and is not subject to review by this office.
DEPARTMENT OF THE INTERIOR,
Washington, July 20, 1876. SIR: I have considered the appeal of the California and Oregon Railroad Company from your decision of September 17, 1875, in the case of George W. Eatoll v8. California and Oregon Railroad Company, involving the right to porth half of southeast quarter, Dortheast quarter of southwest quarter, and lots 14 and 15, section 35, township 22 north, range 1 east, Marysville, Cal.
The land in question is within the withdrawal limits of the California and Oregon Railroad, the right of wbich company attached September 13, 1867.
Township plat was filed June 24, 1867, suspended same day, and released from suspension September 14, 1868. David W. Haines filed declaratory Rtatement 5443 November 12, 1868, alleging settlement of the land in question December 26, 1865. His claim was canceled by you March 24, 1874.
At some time prior to July 16, 1875, but on what day the record does not disclose, Eaton, who had succeeded Haines in the possession of the land, applied to file declaratory statement for it, and at the last named date a notice of said application was issued to the railroad company returpable on the 2d September following. Both parties appeared and proof was taken, the point at issue being whether Haines's settlement and filing operated to except the land from the grant to the railroad company.
Upon consideration of the proof, the register and receiver held that it did not, and “ decided that George W. Eaton is not entitled to file his declaratory statenient for the tract claimed, and that the land in question inures to the California and Oregon Railroad Company.” This decision was made December 30, 1874, and notice served on Eaton on the following day. He took no appeal from this decision.
The papers were forwarded to your office and the case was there reviewed; the decision of the register and receiver was reversed, and the declaratory statement of Eaton was ordered to be received by them. In this I think there was manifest error. The decision of the register and receiver rejecting Eaton's application, not having been appealed from, was final as to him, and was not subject to review by you. (Brown ts. White, Copp's Land Laws, p. 298; Shuster vs. Grady, Ib., 314.)
It does not follow, bowever, that the railroad company is entitled to the land. While the proof as to Haines's qualifications as a pre-emptor is not as full as could be desired, enough appears to raise a very strong presumption that he was qualified, and that his occupation of and claim to the land was sufficient to except it from the grant.
Upon the evidence in the case, it would undoubtedly be your duty to refuse to certify and patent the land to the company. But it appears that on the 7th March, 1875, while this contest was pending in your office, a patent was issued for the land in question to the railroad company.
By this act of gross carelessness the burden of proof is cast upon the Government to show that the lands did not pass by the grant to the company, and a further investigation is made necessary. I have, therefore, to reverse your decision, allowing Eaton to file his declaratory statement for the land, and to direct that further proof be taken by the register and receiver as to the qualifications of Haines as a pre-emptor at the time he occupied the land.
If, on such proof, bis qualification shall appear, you will renew your demand on the company for a release of the land and return of the patent, and, in case it shall refuse to comply therewith, you will report the fact to me, in order that legal proceedings inay be instituted to set the patent aside.
The papers transmitted with your letter, F, of December 30, 1875, are herewith returned. Very respectfully,
Secretary. The COMMISSIONER OF THE GENERAL LAND OFFICE.
DEPARTMENT OP THE INTERIOR,
Washington, May 14, 1877. SIR: I have considered the application of Messrs. Britton and Gray for a reconsideration of the decision of my predecessor, dated July 20, 1876, in the case of George W. Eaton vs. The California and Oregon Railroad Company.
In support of the application a number of affidavits have been filed, in which it is alleged that Eaton has resided upon the land since the year 1868.
In the decision of my predecessor, the claim of Eaton was rejected on the ground that he had not appealed from the decision of the local officers rejecting his claim.
A new hearing was ordered, however, for the purpose of ascertaining the validity of the claim of the railroad company to the tract, the right of the company depending upon the validity of the prior pre-emption claim of David W. Haines.
This hearing should proceed, and the status of the land be determined upon the evidence submitted.
Eaton, by his failure to appeal from the decision of the local officers, lost any right hə may have acquired by settlement, as against the claim of an adverse settler who settled and complied with the provisions of the law subsequent to December 30, 1874, the date of the decision of the local officers, and prior to September 17, 1875, the date of the decision of your office allowing him to file, from wbich tine it should be con