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high, between the Jefferson and Madison rivers, near the junction of Willow creek with Jefferson river, and twelve miles southwest of the junction of the Three Forks of the Missouri river, and was therefore selected as the initial point of surveys in Montana Territory.
The surveyor general, whose office is located at Helena, has been furnished, for his information and government, with all the existing formula adapted to facilitate and secure uniformity under the surveying system, and in order to accommodate miners or claimants on mineral lands under the provisions of the act of Congress approved July 26, 1866, he is directed, after first extending the lines of public surveys to portions of the mining regions, to proceed with the survey of the mining claims in strict conformity to the law and instructions, and at cost of claimants.
As the present and future prosperity of the people of Montana, insofar as their land interests are concerned, will materially depend upon the certainty of title, at the basis of which are the lines of public surveys, it bas been enjoined upon the surveyor general, as indispensable to the successful discharge of his duties, to restrict his selection of deputies to men of high professional skill, experience, and established reputation for fidelity.
The surveying instructions direct that contracts shall be made for the survey of the base meridian, standard parallels, and for the township and sectional lines. It is required that the deputy surveyors shall be familiar with the use and practice of Burt's improved solar compass, and in order to insure uniformity in the establishment of the principal base meridian and standard parallels, in accordance with the principles laid down in the printed manual of surveying instruetions, the survey or general is directed to survey with the greatest care, and chain with the strictest accuracy, as upon those lines will depend the whole structure and correctness of the public surveys.
Lands deemed unfit for cultivation are not to be subdivided into sections, except in the mineral regions when required by claimants under the act of Congress approved July 26, 1866, deputies being inhibited from charging for any lines but such as may be actually run and marked in the field, or for any not actually necessary to be run under existing laws.
The organic act providing temporary government for the Territory of Montana prescribes no surveying rates per lineal mile. The Commissioner, therefore, in virtue of the third section of the act of Congress approved May 30, 1862, to “ reduce the expenses of the survey and sale of the public lands in the United States,” has fixed the price for the surveys in Montana in accordance with the appropriation act of July 28, 1866.
The attention of the surveyor general has been invited to the "act for the disposal of coal lands, and of town property in the public domain," approved July 1, 1864, the supplemental act of March 3, 1865, and to the recent town-site act approved March 2, 1867.
In extending the surveys over towns or cities already existing on the public lands, it is stipulated that deputies shall designate in their field-notes the intersections of the public lines with the municipal out boundaries, so as to determine their precise localities in reference to the particular township, range, and section, with a view to the ultimate adjustment of those out boundaries with the surveys of public lands.
The Mortana surveying department has been furnished with a four pole chain of true standard measure, to be retained in the surveyor general's office for regulating the working chains of the deputy surveyors, each of whom is required to take to the field a similar standard for comparison and test, from time to time, of the chains in practical use.
A standard yard measure from the Superintendent of Weights and Measures bas been obtained, so as to test the standard chain in the surveyor general's office.
While the maximum allowance per mile is established, the surveying department is required to have the work performed at as much less a rate as it can be done by experienced, well-tried, and faithful surveyors, intimately conversant with the systern.
As a general rule, surveying contracts are to be restricted to limited fields of labor, so as to insure the work being thoroughly done within the period fixed in contracts, usually from four to six months.
It is required that the original township plats shall be protracted from the field-notes of surveys, the original plats to be retained in the surveyor general's office; duplicates and triplicates, to bear the same dates of approval as the originals, are to be prepared for the register of the district, and for the General Land Office.
By the first section of the act of Congress of 30th May, 1862, for reducing “the expenses of the survey and sale of the public lands in the United States," the Commissioner's approval of surveying contracts is prerequisite to their becoming binding “except in such cases as the Commissioner shall otherwise specially order."
As the Montana fields of operation are so remote from the capital, it has been ordered that the exception shall apply to contracts for the surveys which are there to be made, and hence the Commissioner's sanction in all such legally executed contracts is given in advance, each contract, however, to be promptly reported for final action.
The 10th section of the act of May 30, 1862, authorizes the survey, at cost of parties, of the public lands not mineral or reserved by the government.
When an application may be made to the surveyor general under the law for the survey of a township, he is directed to estimate its cost according to established rates. When the expenses are thus ascertained, which are to be paid by survey applicants, and the latter shall have presented duplicate certificates showing that the requisite sums are placed to the credit of the surveying fund with a United States depositary, it will then be the duty of the surveying department to have the survey properly executed.
In surveying the lines of the public lands containing coal it is required that the mineral shall be indicated in the field-notes, not only on the intersecting lines, but further, that the contour to such an extent shall be shown as will afford necessary data for delineating in dark purple, in smallest legal subdivi. sions, the coal beds and fields upon official plats.
In August last the attention of the Commissioner was drawn to an application presented by the governor of Montana for a geological survey. This Office then reported, and now submits, that there is no appropriation or any available means applicable to a geological survey of Montana. There exists in fact an interdict in a proviso to the act of Congress approved July 21, 1852, (Statutes at Large, voluine 10, page 21,) to the following effect : “ that there shall be no further geological survey by the government unless hereafter authorized by law."
The only geological survey now authorized by Congress is in process of execution in Nebraska under an appropriation only to the extent of five thousand dollars, to be paid out of the unexpended balance of the appropriations made for defraying the expenses of the legislative assembly of the Territory of Ne. braska. (Vide Laws 1866 and 1867, page 470.) In this connection it may be proper to state that in addition to the small geological appropriation for Nebraska, Congress, as shown in the 3d section of the act approved 2d March, 1867, have delegated authority to the War Department for a geological and topographical exploration of the territory between the Rocky mountains and the Sierra Nevada, including the route or routes of the Pacific railroad, pruvided the same can be done out of existing appropriations.
Montana, with the exception of a small projection, lies between the 45th and 49th parallels of latitude and the 104th and 116th meridians of longitude, em
bracing an area of 143,776 square miles, or 92,016,640 acres, all of which is subject to disposal as public lands.
RIGHTS OF PROPERTY-OPERATION OF THE PRE-EMPTION LAWS.
The relation of man to real property is a natural right, yet modified and regulated by institutions of the state. As all things originally belonged in common, according to the doctrine of writers on natural law, the exclusive right of property or land in severalty resulted from the acts of organized society, because the appropriation by an individual to himself of a portion of the earth's surface could not be effected consistently with justice unless the consent of mankind was given, either tacitly or by express declaration.
It is the remark of that distinguished American jurist, Chancellor Kent, that " the sense of property is inherent in the human heart, and the gradual enlargement and cultivation of that sense, from its feeble force in the savage -state to its full vigor and maturity among polished nations, forms a very instructive portion of the history of civil society."
We realize the force of this view in tracing out the principles upon which rest the rights of property, and in doing so we mark the progress of mankind from the condition of hunters and fishermen to their advance in agriculture, in the mechanic arts, and in commerce, with all the civilizing influences of those elements of progress. Experience teaches that in the early ages, and in every age, labor, however, is the great agent of success and prosperity.
Directed in the infancy of the world by some knowledge of agriculture, its results were realized in the superabundant supplies drawn from the fertile valleys of the East. That knowledge was carried to Greece by Egyptian enterprise, the teachings of which withdrew the people from a wandering life, directed their attention to the culture of the earth, and founded a city, on the site of which subsequently arose in magnificence the citadel of Athens, the ancient and modern capital of the Hellenic states.
The science of agriculture subsequently passed to the Latin peninsula, and was there developed with all its benefits accruing in the property relations of the mighty state which held supremacy in the ancient world for a thousand years.
At a later historic period, when that state was dissolved and overthrown, the most numerous and powerful tribe of the Germans which appeared in Europe had no knowledge, or at most a very imperfect idea, of property in severalty. Like the American aborigines, real property was possessed by them in common.
It is the observation of the philosophic author of De Fimbus, that was in a theatre, though it be common, yet there are proper places for the several speetators it contains, so, though the world or a city is in common, yet this is no bar to every individual possessing a determinate share of property in either,” as man emerges from a primitive condition in the social scale, his relations to landed property gradually become changed and shaped for the ends of civilization.
The products of uncultivated soil are, as a general thing, of inferior quality. Writers on natural law assert the truth, that by labor and industry man soon renders the products of the earth more abundant and much superior, results of the utmost importance; and as by labor he thus changes the character of the soil, it is natural the occupant should have a right to that to which he had imparted enhanced value.
Rutherford, in philosophizing on the subject of property and contemplating the same in its primitive relations, maintains that when an individual enters upon land which had not previously been appropriated, with the purpose of making it his own, it will fairly become such when the members of the community, with opportunities of observing and understanding his purpose, show, in not molesting him, “ they agree to let his design take effect;" but the evidence of that purpose the same author holds to be the act of occupancy, as the out
ward sign by which the settler's purpose is made manifest, it being necessary, however, that the thing seized upon should be certain and determinate, assent not being implied where it is so uncertain and indefinite as to leave the intention obscure or doubtful.
These principles of natural law interwoven with congressional legislation are now found everywhere illustrated in the land administration. The proclamation of Congress in 1785, forbidding settlement on public domain; the act of 1804, of like import; the law of 1807, giving power to the Presideut for the removal of any persons attempting to make a settlement therein until authorized by law, all yielded to the justice and policy of the pre-emption principle, which at the opening of this century had in special instances been legislatively asserted, and was afterwards developed in the general pre-emption laws of 1830, 1832, 1834, retrospective in their bearings, yet guarding pre-existing actual settlements by throwing around them the protection of law, and investing the settler with the right in soil to which be had imparted value by the labor of his hands. Seven years thereafter Congress laid the foundation of a permanent prospective preemption system by the law of September 4, 1841, which, with the act of March 3, 1843, operates upon lands remaining undisposed of after having been offered at public sale, as well as upon those not brought into market pursuant to the proclamation of the President of the United States, yet restricts the preference privilege to lands over which the lines of the public surveys have been extended. These laws, just to the actual settler, liberal in conceding to him one hundred and sixty acres, require of him the erection of a dwelling with actual inhabitation and cultivation.
They were enacted in the spirit of natural justice, so forcibly developed in the Ordenanzas de Terras y Aguas, by Galvan,* in which regarding property as one of the fundamental principles of social order, it is held to have for its basis the relation between man and the fruit of his labor; that if the earth produced without effort all that was necessary for man's existence, property would be useless ; that the field becomes to some extent a part of him who cultivates it by bis will, his strength, the individual qualities inherent in his person, and that property should be distinct because each individual is distinct from every other. With earnest and steady purpose Congress has still further legislated in aid of actual settlers by holding out encouragement to take possession of the national soil without even awaiting the extension of surveys, and this has been done by acts of Congress passed in 1853, 1854, and 1862, opening the way to the agriculturist in most of the organized land districts stretching from the valley of the Mississippi to the Pacific ocean ; also in subjecting the alternate even-numbered sections along the line of railroads to the preference right where settlements exist prior to final allotment, extending the preference principle to tracts once covered by invalid foreign titles, confirming occupants in their improvements on the odd sections along such lines where settlement was made before withdrawal for railroads, securing to cultivators their tracts even on school lands where the settlement was made before the survey and official designation of the school seetions, yet allowing the cause of education full indemnity. These legislative measures carry with them stipulations requiring that the first evidence to be given of individual right shall be the visible signs of residence and cultivation, thus redeeming the soil from a state of nature, appreciating its value, and, while the cultivator draws from it comfortable support, the wealth of the country is in constant process of augmentation by the increase of its productive forces. Nor has the legislative department been unmindful of the importance of encouraging the founding and growth of towns and cities, provision of law for such interests having first been made in 1844, then by the acts of July 1, 1864, March 3,
* De la Propriedad en General, por Galvan, in which the authorities he refers to are Garcia Malo en su Politica Natural, and Locke in his Treatise on Civil Government.
1865, and finally with enlarged proportions by the act of March 2, 1867, “for the relief of the inhabitants of cities and towns upon the public land," whereby municipal settlements are authorized either upon surveyed or unsurveyed lands, and the extent of the grant with limitation graduated according to the number of inhabitants. By the pre-emption and homestead policy, places once desolate have been dotted with farms, villages, towns, and cities, showing that the land system has done its part in the great movement and unprecedented progress of the people of this country, which in 1775 had a population of 2,389,900,* with limited resources, but which now contains over thirty-eight millions of inbabitants, whose industry, energy, and genius have established two million seven hundred thousand farms under cultivation, thirty thousand urban settlements, consisting of villages, towns, and splendid cities, linked together by telegraph and railways, our principal cities vying in the enlightened condition of the people, in their industrial relations, social comforts, luxuries, and even in palatial establishments, with some of the capitals of Europe.
Experience, however, has shown the importance of some further legislation to generalize and give greater vigor to the pre-emption and homestead measures. To this end legislation is recommended, fixing limitation as to time within which pre-emptors upon unoffered lands shall make proof and payment, prescribing limitation as to appeals, and requiring, when a claim is initiated under the preemption or homestead, that the claimant shall consummate the same pursuant to the requirements of statute under which his claim had inception.
The question has been raised whether “ an unmarried woman, over the age of twenty-one years, not the head of a family," has the right to pre-empt, on making proof of settlement and cultivation, as required by the pre-emption act of 1841.
The law extends the privilege to three classes, each having the qualification of citizenship, or having filed a declaration to that end :
1. “Every person being the head of a family.”
The case presented not coming within the first or second class, the question arises whether it does fall within the third class, according to the spirit and intent of the statute.
In the opinion of all etymologists, the name designating our race is derived from the power or faculties of body and mind, with which man has been furnished by nature above all other animals.
The Anglo Saxon word mag-an means to be able or strong; this, by elision, naturally glides into the word “man," a generic term, applying to both sexes, the original Saxon from which the English word is derived having been used in a sense so comprehensive as to mean “mankind," man, woman, a vassal, also any one, like the French “on,” Gothic“manna ”—the Hebrew meaning species, or kind. “That's woman's ripe age, as full as thou art at one and twenty.".
Understanding the terms of the law in their wider sense, this Office has decided that an unmarried or single woman over the age of twenty-one years, pot the head of a family, but able to meet all the requirements of the pre-emption law, has a right to claim its benefits, and that while man is the general term including each sex, the specific name in the Anglo-Saxon of wif-man having been given to the female from her in-door employment at the woof, shows that in the ordinary doings of society the sphere of woman is generally in household, rather than in the duties requiring labor in the field essential to the establishment of a farm.
* Seybert's Statistics, page 27.