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During the year three thousand sex parte" entries were examined and approved for patenting. Letters received during the year ...............................
............................. 5, 488 Letters written ........
...................................... 5, 990 The latter covering 4,548 pages of record.
Section 2262, Revised Statutes, provides that the affidavit of the claim. ant in pre-emption cases shall be taken before the register or receiver of the land-district in which the land is situated. This requirement of the law has worked a hardship in many cases which have been brought to the attention of this office. It often occurs that pre-emptors are compelled to travel hundreds of miles in order to comply with this statute, and in many cases parties are delayed in their efforts to enter their claims on account of sickness or other disability, which prevents their attendance at the local office.
The testimony of witnesses in pre-emption cases can be taken before any officer authorized to administer oaths, and by recent legislation the affidavits and testimony of witnesses in homestead cases can be taken before a judge or clerk of any court of record in the county where the land is situated.
I would therefore recommend that section 2262 be so modified that the pre-emptor's affidavit may be taken before a judge, or, in his absence, before a clerk of any court of record in the county in which the land claimed may be situated, as the law now allows of homestead final affidavits and proof being taken.
In reference to the subject of town-sites on the public lands, there has been no new legislation, and no important decisions have been rendered during the fiscal year.
The act of May 23, 1844 (5 Stat., p. 657), which provided for the entry of town-sites at the minimum price, was repealed by the act of July 1, 1864 (section 2382, Rev. Stats.). The last-named act provided for the sale of the lots in any town, which it provided should not contain more than 4,200 square feet each, at not less than $10 per lot. This law had not long been in force when it was found that a statute similar to that of 1844 was demanded by the people. The act of March 2, 1867, (section 2387, Rev. Stats.), was passed, which embodied some of the provisions of the act of 1844, with a few needed alterations and additions as to the number of acres, inhabitants, &c. The inhabitants of hundreds of towns have availed themselves of the privileges of this act, and have made entries of the public lands thereunder.
The principles of the act of 1864 have been in force more than fourteen years, and but six towns-one in California, two in Nevada, and three in Oregon-have filed plats with a view of obtaining lands under its provisions. This law provides for the patenting of each lot by the government, which involves a great amount of labor by the clerical force of this and the district land offices.
More than $100 per acre is realized by the government for any lands sold under this law, and it is natural that the inhabitants of the towns desiring title to the public lands should prefer a cheaper mode of obtaining such title, which is afforded in sections 2387, 2388, and 2389 of the Revised Statutes.
For the sake of uniformity, I would respectfully recommend the repeal of sections 2382, 2383, 2384, and 2385 of the Revised Statutes, with the provision, however, that the six towns which have already filed plats under said act of July 1, 1864, and the act of March 3, 1865, may obtain titles to their lots thereunder, or that the lots not yet disposed of may
be sold to the mayor or proper county judge, acting as trustees for the occupants thereof, at a stated price, say $1 per lot of 4,200 feet.
The following town sites have been patented since September 1, 1877, viz:
Acres. Sun City, Kans.......
163, 25 Howard City, Kans. .....................................................
366.24 Belmont, Nev ......
160 Tybo, Nev ..... .......................................................
120 Portage, Utah
160 Heneferville, Utah
240 Ouray, Colo....
300 La Grange, Cal........
50 Malad City, Idaho.......
280 In addition to the foregoing, San Juan, Wash., 153.45 acres, has been patented under the county-seat act of 1824.
Sixteen entries, covering 59 lots in Sault Ste. Marie, Mich., have been patented under the ninth section of the act of September 26, 1850. (9 Stats., p. 469.)
An additional entry has been granted to the town of Auburn, Cal., under the fourth section of the act of March 3, 1877. (19 Stat., p. 392.)
In regard to appeals from decisions of district land officers in pre-emption contested cases, this office addressed circular instructions to the registers and receivers, under date of the 20th September, 1878, as fol. lows, viz:
DEPARTMENT OF THE INTERIOR,
GENERAL LAND OFFICE,
Washington, D. C., September 20, 1878. To REGISTERS and RECEIVERS
United States Land Offices : GENTLEMEN: A modification of the rules has been decided upon in the adjudication of contested cases where the parties having claims of record under the pre-emption laws fail to appear and sustain such claims after due notification, or where, having appeared, the unsuccessful party fails to appeal from the decision of the local officers within the time prescribed.
The practice of this office has been to require the party desiring to clear the record and enter the tract, to give notice to adverse claimants of the time fixed for a hearing of the case; and, if no opposition is offered, the proofs of abandonment are forwarded to this office, a decision rendered, and, after the expiration of the period allowed for appeal, the claimant is allowed to enter the land, the adverse filings having first been canceled.
Section 2273, Revised Statutes of the United States, provides that all questions as to the right of pre-emption arising between different settlers shall be determined by the register and receiver of the district within which the land is situated; and appeals from the decision of district officers in cases of contest for the right of pre-emption, shall be made to the Commissioner of the General Land Office, whose decision shall be final unless appeal therefrom be taken to the Secretary of the Interior.”
On the 12th November, 1877, you were advised by my circular relating to appeals from the decision of the local officers that the appeal must be in writing, definitely setting forth in clear and concise terms the specific points of exception," and that this office would judge as to the sufficiency of such appeals.
In future, under the pre-emption law, à failure to appeal from the decision of the local officers will be considered final as to the facts in the case; and such decision will be disturbed by this office only where fraud or gross irregularity is suggested on the face of the papers, where the decision is contrary to existing law, or in the event of disagreeing decisions by the local officers, in any of which cases the Commissioner of the General Land Office will revise or modify the decision of the local office, at his discretion, under the general supervisory powers conferred upon him by section 453 of the Revised Statutes.
In cases where the defendants, or any of them, appear, should no appeal be taken during the prescribed time, you will allow an entry by the successful claimant and transmit with it the record of the case to this office, accompanied by your joint decision and report as to the status of the land.
When notifying the parties of your decision, they shall also be informed of the necessity of an appeal therefrom, to insure consideration by this office. When, after due and legal notice of thirty days, no appearance is entered by any defendant and the tegtimony clearly shows that he has abandoned the land and changed his residence to another part of the country, you are authorized to allow an entry by the actual settler, and send up with his proof and papers the testimony as to the abandonment of the tract by the adverse claimant, and if no appeal from your decision be taken, it will be considered final, and the entry, if regular, will be disturbed only in case of the exceptions mentioned above or where a rehearing is ordered by this office on the receipt of affidavits setting forth good and sufficient reasons for such action.
Care should be taken to give the parties proper legal notice of the hearing, evidence of service to be filed with the other papers in the case. Very respectfully,
J. A. WILLIAMSON,
DEPARTMENT OF THE INTERIOR,
September 23, 1878.
A. BELL, Acting Secretary.
The following decisions, rendered since the date of the last annual report of this office, are here presented as having an important bearing on pre-emption rights.
M'KEE VS. WALTHER ET AL.
The local land officers should not receive applications to file for or enter a tract of land while in a state
of reservation, and hold the same to advance the interest or accommodate any individual.
DEPARTMENT OF THE INTERIOR,
Washington, D. C., April 19, 1878. SIR: I have considered the case of Uri McKee v8. Leonard C. Walther, John O'Mara, et al., involving the W. $ of section 13, township 2 south, range 11 east, Stockton land district, California, on appeal from your decisions of March 20, 1876, and June 27, 1877.
The township plat was filed in the local office on July 26, 1858.
The lands in contest were formerly within the limits of the withdrawal of November 30, 1867, for the Stockton and Copperopolis Railroad Company. The grant to said road was declared forfeited by act of Congress approved June 15, 1874, and the lands were restored to pre-emption and homestead entry September 4, 1874, pursuant to published notice given under instructions from your office, dated July 9, 1874.
Uri McKee filed declaratory statement 7616, September 4, 1874, for the W. 1 of N. W. 1 and W. ; of S. W. 1 section 13, 2 S., 11 E., alleging settlement same day.
Leonard C. Walther filed declaratory statement 7737, September 4, `1874, for the N. W. 1 section 13, 2 S., 11 E., alleging settlement August 18, 1874.
Peter Finnegan filed declaratory statement 7796, September 4, 1874, for the W. 1 of N. W. 1 section 13,2 S., 11 E., alleging settlement September 4, '1874.
Timothy Ryan filed declaratory statement 7738, September 4, 1874, for the W. N. E. ; and Ě. of N. W. 1 section 13, 2 S., 11 E., alleging settlement March 16, 1874.
John O'Mara made homestead entry No. 2053, September 4, 1874, for the S. W. + section 13, 2 S., 11 E.
John L. Sullivan filed declaratory statement 7655, for the E. 1 of N. W. 1 and E. + of S. W. 1 sec. 13,2 S., 11 E., September 4, 1873, alleging settlement same day.
The testimony shows that McKee and Sullivan went to the local land-office on the 2d or 3d of September, 1874, and executed their declaratory statements, dating them September 4, 1874. Settlement was alleged as of September 4, 1874, and said papers were left with the receiver or clerk to be filed when the lands came into market, and they were placed on record as having been filed September 4, 1874. Said parties then procured lumber and teams and started for the land. They arrived on the land Shortly after sunrise on the morning of September 4, and commenced building their honses before 12 o'clock m, on that day. The local land office was not opened for business until 10 o'clock a. m. on September 4, 1874, but the land was subject to settlement after twelve o'clock on the night of September 3, 1874. (Timinons vs. Gleason, Copp's Land-Owner for Angust, 1876, p. 71.)
Yon held that the filings of McKee and Sullivan were valid, and awarded them the lands claimed thereunder. I am unable to agree with your conclusion.
Section 2265 of the Revised Statutes requires the claimant for unoffered land to make known his claim in writing within three months from the date of his settlement.
In the presence of an adverse claim two things are necessary to the initiation of a valid claim under the pre-emption laws, viz:
1. Priority of settlement on the land in good faith.
2. The execution and filing of a declaratory statement, either in person or by an authorized agent or attorney, subsequent to settlement and within the time prescribed by statute.
McKee and Sullivan executed their declaratory statements before settlement, and at a time when the land was in a state of reservation. Said declaratory statements were post-dated and placed in the hands of the clerk or receiver with the manifest design of obtaining some supposed priority or advantage over other applicants for the land. The last paragraph of your instructions to the register and receiver, of July 9, 1874, relative to the manner in which these lands should be restored to market, is as follows, viz: “You will not allow any entries of lands or recognize any pre-emption rights as attaching prior to the date of restoration." This order prohibited the local officers from allowing any filings or entries prior to the day of restoration, September 4, 1874, and their action in receiving the declaratory statements of McKee and Sullivan prior to that time, and afterward placing them of record, was contrary to the spirit and intent of your instructions, as well as to a just and proper administration of the law.
When lands are subject to disposal under the laws of the United States, it is the duty of the local land officers to receive all proper applications therefor, and place them on record; but when the lands are not subject to disposal, the plain duty of these officers is to reject such applications. These officers have no authority to receive applications to file or enter lands which are in a state of reservation, and hold them until the reservation is removed, and then place them on record, in order to advance the interests, or accommodate any individual; such an act of favoritism is contrary to a proper administration of the public-land system, and cannot receive the sanction of this department; and the filings of McKee and Sullivan must be canceled. The testimony taken at the hearings held in March, 1875, and December, 1876, shows that Ryai has not complied with the requirements of the pre-emption laws, and your decision holding his filing for cancellation is affirmed.
Finnegan made default at the hearing held in March, 1875, and as it does not appea that he ever made any settlement on the land claimed by him, his filing will be ca. celed. O'Mara and Walther have shown a substantial compliance with the law.
Walther will be allowed to enter the N. W. 1 section 13, 2 S., 11 E., on showing full compliance with the requirements of the pre-emption laws to the date of enti and the S. W. 1 section 13, 2 S., 11 E., is awarded to O'Mara, subject to a full comi ance with the homestead law.
Your decisions are modified accordingly, and the papers transmitted with letters of January 30, 1877, and December 10, 1877, are herewith returned. Very respectfully,
C. SCHURZ, Secretar COMMISSIONER OF GENERAL LAND OFFICE.
WHITE VS. UNIVERSITY OF CALIFORNIA.
In the selection of land in California in lieu of school sections claimed to have been lost in plac
State locating agent, State surveyor general and local land officers, must certify that their res records do not show that a former selection has been made by the State for the same land clai have been lost, prior to July 23, 1866, and that to the best of their knowledge and belief ,
selection has been made. The warrants issued under the State law of May 3, 1852, for 320 acres each, of the 500,000 acre gr
der the Congressional act of April 4, 1841, disposed of that portion of the said governmen covered thereby. The provisions of the State law of April 23, 1838, regulating the dispos: unsold portions of the said 500,000 acre grant, are not applicable to parties who have purcha warrants.
DEPARTMENT OF THE INTERIOR
Washington, January 10, Sir: I have considered the case of The State of California, ex rel. John C. W1 plicant under the first section of the act of July 23, 1866, 18. the University of nia, on appeal from your decision of May 7, 1877.
The land involved is the N. W. 1 of section 6, township 2 north, range 6 east. E. 4 of N. W. I and N. E. # of section 32, township 3 north, range 6 east, Mi Stockton, Cal.
The N. W. 7 of section 6 and the N. 4 of section 32 were selected by the St 26, 1862, in lieu of lands in sections 16 and 36 claimed to have been lost in pl.
The University of California, on February 27, 1874, applied to locate, unde of July 2, 1862, the N. W. 1 of section 6, and E. 5 of N. W. of section 32. T. cation was rejected on account of the adverse claim of White.
In 1869 there was approved to the State other land, in lieu of that claimer been lost in place, for which the tracts above described were selected in 10! should the selection under consideration be approved, it is asserted that thi
the State would be increased, in violation of the provisions of section 1 of the act of July 23, 1866: “That the State of California shall not receive, under this act, a greater quantity of land for school or improvement purposes than she is entitled to by law."
It cannot be denied that there is force in this objection, and upon this point your office ruled that the proviso applies to the grant in the aggregate, and not to indemnity that may be taken for any specific tract. Should it be held that by a subsequent selection the State had barred the right of confirmation of the selection made prior to 1866 the purchaser from the State would be the sufferer, and the very purpose of the act of 1866, viz, to quiet title, and to protect the rights of purchasers in good faith, would be defeated. The State cannot thus be permitted to defeat the rights of her grantees.
Great care, however, should be exercised by your office in the adjustment of the grant of the sixteenth and thirty-sixth sections, to prevent its being enlarged, under the provisions of the first section of the act above cited. And as preliminary to this step, you will in the case of each selection made in the future, of lands in lieu of those claimed to have been lost in place, require the State locating agent, the State surveyor general, and the local land officers, to certify that the records of their respective offices do not show that a former selection has been made by the State, for the same land, claimed to have been lost, prior to July 23, 1866, and that to the best of their knowledge and belief no such selection has been made. Should you ascertain from any source that a former selection has been made, you will hold the subsequent one in abeyance until an adjudication of the question of confirmation, and should the prior selection be confirmed, the latter must be canceled. You will also pursue a like course with all the selections now on file in your office, not approved to the State by the head of this department.
It appears that White has located a school warrant for 320 acres of land, and it is contended that he has exhausted his right, and is barred from obtaining title to an additional 320 acres under the act of the legislature of California approved April 23, 1858.
The act of the legislature of California approved May 3, 1852, authorized the issuing of warrants for not more than 320 acres each, of the 500,000 acre grant made to the State by the act of Congress approved April 4, 1841. They were to be sold for $2 per acre, and the purchaser was authorized, in behalf of the State, to locate them upon any land of the United States subject to location. This was done by White. The warrants this issued and sold by the State disposed of that portion of the 500,000 acres covered thereby. (Bludworth v8. Lake, 33 California, 255; Toland vs. Mondell, 38 California, 30.) If this be so, the provisions of the act of the legislature of California, approved April 23, 1858, regulating the disposal of the unsold portions of the 500,000 acre grant, are not applicable to parties who have purchased said warrants. This view is confirmed by the twelfth section of said act, which repeals the act of May 3, 1852, providing, however, “that all school land warrants now in circulation shall be received for school lands, and may be located as now provided by law.” For these reasons I am of the opinion that the case of Chapman vs. Buckman, 39, California, 674, cited by counsel in support of their position, is not applicable, as the lands therein involved were located under the provision of the act of April 23, 1858, regulating the disposal of the unsold portion of the 500,000 acre grant.
The question of the good faith on the part of White, who claims as a purchaser under the first section of the act of July 23, 1866, must now be considered. Said section provides that where the State of California has made selection of any portion of the public domain, in part satisfaction of any grant, and has disposed of the same to purchasers in good faith under her laws, said selection shall be confirmed.
The words “disposed of the same to purchasers in good faith under her laws," used in this connection, must be interpreted to mean sales or locations made according to the conditions of the State laws under which they purport to have been made, and which have been made in such a manner as would have passed title had it then been in the State. White appears to have made application in 1862, in due form, under the laws of the State, for the N. } of section 32, township 3 north, range 6 east, and made final payment for the same in 1868. I see no reason why he should not be recognized as a purchaser in good faith for said tract, and the N. E. and E. f of N. W. # of said section 32 be approved to the State. The W. f of N. W. 7 of said section 32 having been approved to the State under the swamp grant in 1866, no further action in reference to the same will be taken by this department.
The location of the N. W. 1 of section 6, township 2 north; range 6 east, was made in behalf of William B. Hood, who has assigned his interest to White.
The fourth section of the act of April 23, 1858, provides that “ the agent shall not locate more than 320 acres either directly or indirectly for any one person."
It is asserted that the location of Hood was made in the interest of White, to enable him to obtain more than 320 acres of land.
There can be no doubt, in my opinion, as to the truth of this allegation. In the record of the case of White vs. Lyons, in the State court, introduced in evidence at the