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sidered that he was restored to his position as an applicant and a party in interest before your office, whose claim is not finally adjudicated.
If it should be ascertained that the question is one between bimself and the Government, his claim should be determined upon its merits; and to that end, evidence on the question of his residence on the tract and compliance with the law from date of alleged settlement should be admitted. All claimants of record should be made parties to the bearing. The papers in the case are herewith returned. Very respectfully,
Acting Secretary. The COMMISSIONER OF THE GENERAL LAND OFFICE.
Wbere an entry is confirined under the act of April 21, 1876, the railroad company will be permitted to relinquish the tract embraced in such confirmed claim, and select indemnity tberefor under the act of June 22, 1874.
DEPARTMENT OF THE INTERIOR,
GENERAL LAND OFFICE,
Washington, D. C., September 16, 1876. SIR: I have the honor to submit herewith letter from John B. Bloss, esq., dated 11th instant, asking whether the Sioux City and Saint Paul Railroad Company is entitled to select, under the provisions of the act of June 22, 1874, land in lieu of the west half of the northeast quarter and northwest quarter of the southeast quarter of section 5, township 88 porth, range 44 west, Sioux City district, Iowa, lost to the grant by reason of the confirmation of homestead entry No. 605, final certificate No. 829, of Jacob Weaver, under the act of April 21 last, by your decision of 17th ultimo.
It is well known that under the rulings of the Department, based, it is believed, upon well-settled decisions of the Supreme Court, the right of said company attached upon the definite location of its line of route, and that from that time title vested in the specific lands embraced within the lateral limits fixed by such definite locatiou.
The entry was con tirmed under the provisions of the act of 1876, but such confirmation could not take away nor divest the rights of the company.
Where an entry comes clearly within the provisions of the confirmatory statute, patent must issue to the individual. The right of the company to relinquish under the act of 1874 is not, however, by such confirmation restricted or removed. It was the manifest intent of the act of 1876 (as appears from a perusal of the debates in Congress thereon) to confirm the entries as a basis for patents to issue, so as to give the claimants a proper standing before the courts to test the question of title, and it is clearly evident to me that it could do nothing more. It certainly could not operate to divest rights long since acquired under previous laws.
By tbe recent decision of the Supreme Court in Leavenworth, Lawrence and Gal. veston Railroad Company 18. United States, known as the Osage decision-not yet reported—it was declared that, from the date of the attachment of the right of the company by definite location, pre-emption and other rights ceased, and could not there. after be initiated.
I therefore conclude that the company is still entitled to the benefits of the provis. ions of the act of 1874. la view, however, of the importance of the question, I submit the matter for the consideration of the supervisory authority, and have to request your instructions in the matter before communicating to the parties interested iny decision in the case. Very respectfully, your cbedient servant,
U. J. BAXTER,
Acting Commissioner. Hon. Z. CHANDLEP, Saretary of the Interior.
DEPARTMENT OF THE INTERIOR,
Washington, D. C., October 16, 1876. SIR: I bave to acknowledge the receipt of your communication of the 16th ultimo, inclosing a letter from John B. Bloss, esg., attorney of the Sioux City and Saint Paul Railroad Company, which submits the question whether in the case of Jacob Weaver rs. Sioux City and Saint Paul Railroad Company the company will not be entitled to indempity under the act of June 22, 1874.
Yon express the opinion that in this case the company is entitled to the benefit of the provisions of the act above mentioned.
I concor in your opinion. In the case above mentioned and similar cases the company, on relinquishment of its title to the settler, will be entitled to select lieu lands under the act above cited. The letter of Mr. Bloss is herewith returned. Very respectfully,
CHAS. T. GORHAM,
Acting Secretary. The COMMISSIONER OF THE GENERAL LAND OFFICE.
An entry, to be confirmed under tbe language in the first section of the act of April 21, 1876, " after their restoration to market by order of the General Land Office," must come clearly within its provisions. The land must have been actually restored.
DEPARTMENT OF THE INTERIOR,
Washington, D. C., October 24, 1876. Sir: I have considered the case of the Cedar Rapids and Missouri River Railroad Company vs. James Shelmerdine, involving the rigbt to the east balf of the northwest quarter and southwest quarter of the northeast quarter, section 22, township 88, range 37, Sioux City, Iowa, on appeal from your decision of February 14, 1876, holding for cancellation the latter's homestead entry on said tract.
Shelmerdine made homestead entry March 3, 1869; made final proof and received fined certificate January 19, 1875.
The grounds of appeal, with the exception of the one that the entry has been confirmed by an act of Congress, bave been frequently decided by this Department, and a further consideration of them is not deemed necessary; but the important question remains, is the entry confirmed by the act of Congress approved April 21, 1876
The claimant alleges that the tract in question was included in the clear list of lands ordered by express instructions of the General Land Office to be sold at public sale October 29, 1866. These lands were ordered to be restored to market October 29, 1866, by notice dated July 5, 1866. By letter dated September 21, 1866, the order was suspended for one year from July 5, 1866, unless otherwise ordered, and the lands were held subject to homestead and pre-emption settlement only.
By letter from your office dated August 5, 1867, the register and receiver were ordered to restore the lands after thirty days' public notice, and the lands were actually restored to market September 23, 1867,
Without discussing the legal right or power to restore these lands, it must be held that they were restored to market so far as an express order of the General Land Office coulıl effect that purpose. Public notice to that effect was given, and parties making entries in good faith, in accordance with that notice, have an equitable right to claim the protection of the Goverument, so far as the same can be extended.
The first section of the act approved April 21, 1876, provides that homestead and pre-emption entries made in good faith by actual settlers upon lands after “their restoration to market by order of the General Land Office," and when the laws have been complied with and proper proof made, shall be confirmed.
It is plain, I think, that the intention of Congress was clearly expressed by the language used. Entries made in good faitb on lands after their restoration to market by order of the General Land Office are confirmed, and patents are ordered to issue to said claimants.
It is contended by counsel for the railroad company that the tract in question inured to the grant for said company June 2, 1864; that it was no longer public land, and could not be affected by the first section of the act of April 21, 1876.
Upon this point I am governed by the opinion of the Attorney General of the United States, of August 4, 1876, as follows: “I think it plain that Congress in the above act used that phrase (public lands) in a special sense, virtually defined in the context as being lands within the limits of any land grant prior to the time when notice of their withdrawal is received at the local land office," &c. It is the duty of the Department to execute the plain provisions of the law and not question what the effect will be.
Was the tract claimed by Shelmerdine restored to market by order of the General Land Office ? His attorney alleges that it was in the list of lands ordered to be sold September 23, 1867.
Upon examination of the list of vacant lands referred to, prepared by your office, I fail to find the tract in question. The tract book of your office shows that a military bounty land warrant was located on said land May 24, 1856. This entry was, however, erroneous, as the tract located was in township 87. The error was detected and corrected, but at what date I am unable to state. The fact of this erroneous entry no donbt accounts for the non-appearance of the tract in the list prepared by your office in the spring of 1866, but it minst be treated as land not restored to market. The record further shows that the land was eutered as a homestead July 20, 1867. This entry was canceled January 30, 1869; hence it could not be treated as vacant land subject to restoration September 23, 1867.
The tract was vacant June 2, 1864, and by the terms of the granting act inured to the grant for the benefit of the railroad company at that date; and the homestead entry, not being confirmed by the act of April 21, 1876, must fail.
Your decision is affirmed ; and the papers transmitted with your letter of August 24, 1876, are berewith returned. Very respectfully,
CHAS. T. GORHAM,
Acting Secretary. The COMMISSIONER OF THE GENERAL LAND OFFICE.
A legal bomestead entry of record segregates the land from the mass of public lands, and excepts the tract covered thereby from the opera. tion of a railroad grant attaching during the existence of such entry.
DEPARTMENT OF THE INTERIOR,
Washington, D. C., February 7, 1877. SIR: I have considered the case of Chalkley Thomas vs. The Saint Joseph and Denver City Railroad Company, involving the right to the northwest quarter of section 5, township 2 north, range 2 east, Beatrice, Nebr., on appeal from your decision of April 27, 1876, holding for cancellation the homestead entry of the former.
This tract is within the limits of the grant for the above named railroad company, made by act of Congress approved Jaly 23, 1866.
Said road was definitely located March 21, 1870, and the notice of withdrawal was received at the local office April 15, 1870. Thomas made homestead entry July 26, 1871, and made final proof January 20, 1874. Thomas Keyes made homestead entry for the tract November 11, 1868.
At a trial held January 25, 1870, on the charge of abandonment, it was shown that Keyes never resided upon the land nor improved the same, and said entry was canceled for abandonment May 20, 1870.
From this statement it will be seen that at the date of the definite location of the road the tract in question was covered by a homestead entry, subsequently canceled for abandonment, and the questions arise, Did said entry defeat the claim of the railroad company, and does a homestead entry operate as a reservation of the land covered from all other appropriation
If a homestead entry is a legal appropriation of the land, it is a well established principle of law that from the moment of such entry the land becomes severed from the mass of public lands, and no subsequent law, proclamation, nor sale would be constrned to embrace or operate upon it, although no other reservation were made of it. (13 Peters, 498; 2 Otto, 733.) The preference right to purchase, the only right initiated under the pre-emption law by settlement, is not, prior to payment and entry, such a legal appropriation of the land as above indicated. (15 Wall., 77.)
This doctrine was reaffirmed in the case of Shepley et al. v8. Cowan et al., (1 Otto, 330,) in which the court says “ that the settlement, even when accompanied with au improvement of the property, did not confer upon the settler any right in the land as against the United States, or impair in any respect the power of Congress to dispose of the land in any way it might deem proper; that the power of regulation and disposition conferred upon Congress by the Constitution only ceased when all the preliminary acts prescribed by law for the acquisition of the title, including the payment of the price of the land, had been performed by the settler. When these prerequisites were complied with, the settler for the first time acquired a vested interest in the premises, of which he could not be subsequently deprived. He was then entitled to a certificate of entry from the local land officers, and ultimately to a patent of the Cnited States. Uotil such payment and entry, the acts of Congress gave to the settler only a privilege of pre-emption in case the lands were offered for sale in the usual manDer; that is, the privilege to purchase them in that event in preference to others."
Where the entry is niade a vested right is acquired, a right which may be transferred. (Myers vs. Croft, 13 Wall., 291.)
These decisions clearly establish the character of an entry, wbich is defined to be that act by wbich an individual acquires an incep ive right to a portion of the unappropriated soil of the country by filing his claim thereto with the proper land officer of the United States. (12 Wheaton, 586.)
The act providing for the disposal of the public lands, known as the “liomestead law," differs essentially in its principles from the pre-emption law. Uuder the latter statute an entry is not permitted until payment is made. Section 2289 of the Revised Statutes, however, provides that "every person who is the bead of a family, or who has arrived at the age of twenty-one years and is a citizen of the United States, or who has bled his declaration of intention to become such, as required by the naturalization laws, shall be entitled to enter one-quarter section or a less qnantity of anuppropriated public lands, upon which such person may have filed a pre-emption claim, or which may, at the time the application is made, be subject to pre-emption, at one dollar and twenty-five cents per acre, or eighty acres or less of such unappropriated lands at two dollars and fifty cents per acre, to be located in a body, in conformity to the legal subdivisions of the public lands, and after the same have been surveyed.”
It is thus stated who may make an entry; and the succeeding section, No. 2290, provides how the entry shall be made, which is as follows:
“The person applying for the benefit of the preceding section shall, apon application to the register of the land office in which he is about to make such entry, make affdavit before the register or receiver that he is the head of a family, or is twenty-one years or more of age, or has performed service in the Army or Navy of the United States, and that such application is made for his exclusive use and benefit, and that his entry is made for the purpose of actual settlement and cultivation, and not, either directly or indirectly, for the use or benefit of any other person; and upon filing such affidavit with the register or receiver, on payment of $5 when the entry is not more thau eighty acres, and on payment of $10 when the entry is for more than eighty acres, he shall thereupon be permitted to enter the amount of land specified.”
Each of the three elements of which this transaction is composed forms an essential part thereof-the application, the affidavit, and the payment of money; and when the application is presented, the affidavit made, and the money paid, an entry is made, a right is vested, which is perfected to a complete title by the performance of certain conditions subsequentra residence on the tract for a certain period of time; and at the expiration of that time, upon making proper proof thereof, the party is entitled not to make an entry of the land, but he is entitled to a patent for the same, as provided in section 2291, as follows: “No certificate, however, shall be given, or patent issue therefor, until the expiration of five years from the date of such entry; and if at the expiration of such time, or at any time within two years thereafter, the person making such entry, or if he be dead his widow, or in case of her death his heirs or devisee, or in case of widow making such entry ber heirs or devisee, in case of her death, proves by two credible witnesses that he, she, or they have resided upon or cultivated the same for the term of five years immediately succeeding the time of filing the affidavit, and makes affidavit that no part of such land has been alienated except as provided in section twenty-two hundred and eighty-eight, and that be, she, or they will bear true allegiance to the Government of the United States, then, in such case, he, she, or they, if at that time citizens of the United States, shall be entitled to a patent, as in other cases provided by law."
That it was the intention of Congress to copfer a right and interest in the party, is sbown by the provisions of the section just quoted, allowing heirs in certain cases to perfect title without actual residence on tbe land. By the same section the interest of the settler appears to be recognized as an estate capable of passing by devise, and the deviseo is invested with the right to complete the title.
This view is also borne out by the provisions of section 2292, allowing an executor, administrator, or guardian, in the case of the death of both father and mother, to sell the land for the benefit of the infant heirs. In such case the purchaser acquires the absolute title by the purchase, and is entitled to a patent from the United States on the payment of the office fees and the sum for which the property was sold. This proceeding is a necessary result, if the interest created by the entry is a vested one, but a proceeding that would be logically inconsistent with the theory that there was no vested interest created by the entry.
That it was the intention of Congress to grant an estate or interest in land to the party making a homestead entry is clearly shown by the term employed in section 2297, providing that the land entered shall revert to the United States under certain circumstances. There can be but one meaning attached to the term “revert ;" there must have been an estate or interest created ; and it is employed in the same sense as in the different acts making grants to States, Territories, railroad companies, and other corporations.
In the latter case, it is a well establisbed principle that an interest or estate in the lands described is conferred upon the grantee, which is subject to forfeiture and reversion upon failure to perform certain conditions ; but in no case is the manner of declaring a forfeiture and reversion provided for in the law making the grant. That act is ope to be performed by the legislative or judicial authority. But in the statute allowing a homestead entry, the manner of declaring a forfeiture and reversion is clearly provided.
When land is once entered, it becomes segregated from the mass of public lands, and the right of the claimant attaches upon such entry before a patent issues, (4 Wall., 210,) in which the court says: “That Congress has the entire control of tbe public lands, can dispose of them for money, or donate them to individuals, or classes of persons, cannot be questioned. * * * In either case, when the entry is made and certificate given, the particular land is segregated from the mass of public lands and becomes private property. In the one case the entry is complete when the money is paid, in the
other when the required proofs are furnished. In neither case can the patent be withbeld if the original entry was lawful.”
The entries under consideration by the court were not made in accordance with the provisions of the homestea i law, but I see no reason wby the same principles should not apply. By the entry an inceptive right is acquired which cannot be divested, except by failure to comply with certain conditions; and this right of homestead settlement is recognized in the acts of Congress making grants of land for various parposes.
If these views are correct-and they seew to me to follow the interpretation given by the courts to the term "entry " under the laws for the disposal of the public lands-it follows that such an appropriation of the land reserves it from the operation of any law, grant, or sale until it is restored to the mass of the public domain by due process of law.
It may be urged that if the party wbo makes a valid homestead entry neglects to follow up the same by settlement, or, in other words, abandons the land from inception, from said date of abandonment, or six months thereafter, the land is no longer reserved but becomes subject to a subsequent appropriation without the formality of a declared forfeiture. Such has been the view formerly taken by this Department, but I do not think it can be maintained, applying to the subject the reasoning employed by the supreme conrt in the recent cases above cited and other cases. The decisions of the court innst be accepted as the true basis for the interpretation of the laws. Neither do I think the view is founded on sound principles. If Congress should enact a law reserving a tract of land for military or Indian purposes, and said tract should not be occupied for the purposes indicated, it would not be contended that the reservation did not exist, or tbat it would cease, except by dne process of law.
I see no reason why the same principles should not apply in the case of a homestead entry, a reservation made in accordance with an express law of Congress, in the manDer prescribed.
Tbe inaoner of declaring a forfeiture and reversion under the homestead law is prescribed in section 2297, as follows: “If at any time after the filing of the affidavit, as required in section twenty-two hundred and ninety, and before the expiration of the five years mentioned in section twenty-two hundred and ninety-one, it is proved, after due pot ce to the settler, to the satisfaction of the register of the land office, that the person having filed such affidavit had actually changed his residence, or abandoned the land for more than six months at any time, then, and in that event, the land so entered shall revert to the Goyernment."
When the fact of an abandonment is established, the entry by which the tract was segregated must be canceled. Under the roles and practice of your office, which you are anthorized by law to prescribe, the fact of abandonment cannot be judicially determined until the evidence is submitted to you and your decision on the same is announced.
That decision is carried into effect by the cancellation of the entry, and then, and Dot until such action is taken, is the land restored to the mass of the public domain.
It has been the uniform practice of this Department, since the adoption of the homestead law, to regard a tract of laud covered by a homestead entry as reserved from appropriation in any manner by a private citizen prior to the cancellation of said entry, and no greater privileges can be extended to a corporation, unless they are clearly granted by law. Section 1 of the act making the grant for the benefit of the Saint Jo. seph and Denver City Railroad Company provides that, “ In case it shall appear that the United States have, when the line or route of said road is definitely fixed, 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 * * certain lands as indemnity.
The right of homestead settlement had attached to the tract in question by means of the entry of Keyes. It had been reserved and appropriated according to law, and remained so reserved and appropriated at the date of the definite location of the road. It was consequently excepted from the operation of said grant, and upon its subse. qoept reversion to the United States became subject to the entry of Thomas, who is entitled to a patent if he has complied with the law.
In the case of the Leavenworth, Lawrence and Galveston Railroad Company vs. Coited States, (2 Otto, 733,) the court held that when Congress enacts "that there be, and is hereby, granted” to a State, to aid in the construction of a specific railroad, every alternate section of land, designated by odd numbers, within certain limits of each side of the road, the State takes an immediate interest in land so situate, whereto the complete title is in the Uuited States at the date of the act. Such a grant is applicable only to public land owned absolutely by the United States.
It follows that lands situated within the limits of a road above indicated, covered by homestead entries at the date of the granting act, which entries are subsequently canceled, are excepted from the operation of the graut.