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pleader, who had paid on his behalf the Rule 14 of office circular, issued Octo- 3988, May 4, 1879, alleging settlement on sum of two dollars as part of the purchase ber 9, 1880, under the act of June 15,1880, the tract in question April 6, 1879, and money, with the understanding that such provides that “where the duplicate receipt gave notice January 30, 1882, that he receipt was to be turned over to the plain- has been lost or destroyed, and the appli- would make final proof April 8, 1882. tiff on his reimbursing the interpleader for cation to purchase is made by the original Darnell made entry January 13, 1882. said sum. On this point, however, it may homestead party, the applicant must make Lunney having failed to make final be stated that the interpleader denies that oath that he has not transferred, nor at- proof within the period required by law, the receipt was held by him for the pur- tempted to transfer, his homestead right and an adverse right having intervened, pose alleged. On the contrary, his version under said entry, nor assigned his right to and been properly asserted, lost his right of the matter is, that the receipt was pur- receive the repayment of the fees, com- to complete the entry. (Johnson vs. Towschased by himself from the defendant, with missions, and excess payments paid ley, 13 Wallace, p. 90.) the view of saving that portion of his im- thereon.” It is clear that this rule was in- I refer you to the case of Molyneux vs. provements, which he states he believes a tended to prevent the purchase by the Young (C. L. O., Oct., 1880), which deresurvey will show lies upon the tract in homestead claimant after he had irans- cides the points involved herein. dispute. ferred his interest in his entry, or attempted
Your decision is reversed. The interpleader, it seems, owns and oc- to transfer the same. Such transfer being cupies under his homestead entry No. usually made upon the duplicate receipt, 8957, (F. C. No., 2608) made May 4, 1874, the absence of the receipt would raise a
F. JOSEPH SHLOSSER. the N. W. S. E. 4, E. } S. W. 4, and N. strong presumption that a transfer had W. S.W.), 1,2 N., 23 W., which adjoins been made. Hence to rebut this presump
Irregular Application.-An application irreguthe tract in controversy. He admits how-tion an oath as to non-alienation was
lar in form is equivalent to no application,
and does not prevent another party from proever that he offered to sell the receipt to deemed necessary, and accordingly the perly applying for and entering the land. the plaintiff', but such offer having been above-mentioned rule was promulgated. Prior Settler.-The party thus deprived of the declined, he concluded to get the land The substance of the rule is that a home
land may, if the prior settler, initiate a conhimself. But he denies, as submitted in stead party cannot be permitted to pur
test against the entryman. evidence, though not conclusively proved chase the land after he has sold his rights COMMISSIONER, MCFARLAND to Regand Rec., by the plaintiff, that one of plaintiff's to another. A transfer of the duplicate
Huntsville, Ala., Sept. 24, 1883. (C. T. Y.) witnesses offered to pay him the alleged receipt is not, however, the only evidence
Shlosser claims the preference right of balance due on the receipt. The inter- of such sale.' The sale may be otherwise entry, by virtue of a contest initiated by pleader also acknowledges, as further established, and when established is suf
him against homestead entry No. 10839, charged by the plaintiff, that he procured ficient to bar a purchase by the homestead
for the same tract, which terminated in the the defendant to go to the Land Office and party of land to which he no longer has
cancellation thereof, March 10, 1882. The make application to purchase the land un- any. equitable claim, even if he does still before the Clerk of the Court April 29,
evidence shows that the contestant went der the act of June 15, 1880, and that he hold possession of the duplicate receipt. furnished the defendant one hundred In the present case, the duplicate receipt ter said tract, which was forwarded to the
1882, and executed his application to endollars two or three days before he—said does not show a transfer by the defendant. local office, and rejected for informality defendant-presented himself at your of But the fact that he had disposed of his local office, and rejected for informality
with the affidavit. fice for such purpose. He further admits entire interest in the land both by deed
A proper affidavit that he expected to get a deed to the land and otherwise is proven. To allow the was made before the clerk of the court from the defendant after the purchase had purchase by a homestead party under such
June 2, 1882, and forwarded to the local been consummated, and also paid him circumstances, would be a violation of the
office. During the interim, an application eight dollars in addition as an inducement. spirit and purpose of the rule referred to, office by Absalom Welden to enter said
in proper form was presented at the local It appears in evidence that such deed was and would place this office in the position
The question actually executed by the defendant about of aiding the consummation of a scheme tract, which was allowed. the time the application to purchase was to deprive the occupant of his improve testant's entry. The act of May 14, 1880,
now is as to the admissibility of the conmade. No testimony was offered by the ments placed upon the land defendant, and he appears to have been color of right, obtained through actual gives a contestant the preference right for singularly silent. transfer of possession from the homestead
thirty days from date of such notice to
enter said lands." An informal or incomThe receipt about wbich there is so much party. It is reasonably clear in this case contention accompanies the defendant's that the application to purchase is not plete application does not operate as a application to purchase.
bona fide on the part of the defendant, but segregation of any of the public lands; the On inspection it appears never to have is in reality made in the interest of the in- statute is specific as to the time allowed a been relinquished or transferred by the terpleader, who has no standing in the contestant to make entry, which must be defendant. The purchase or possession of case.
accomplished in the usual manner; i. e., it by the plaintiff or the interpleader would The application to purchase is therefore upon the proper application. In the case therefore have availed nothing to either. rejected, and the aforesaid entry No. 13,828 is equivalent to no application, and the
at bar, the first application being irregular It is only touched upon so largely in my is held for cancellation. consideration of the case, because of the
thirty days' limitation having expired beexceptional character of the point involved,
fore a proper application had been pre
PRE-EMPTIONS. which renders it necessary to take in col
sented at the local office, the contestant lateral issues in order to show as clearly
LUNNEY vs. DARNELL.
thereby forfeited his preference right acas possible the respective equities of the Final Proof:—Adverse Claim.-A pre-emptor quired under the statute, and the land becontending parties.
who fails to make final proof within the time came subject to entry by the first legal From the foregoing, the real question at
prescribed by law, loses his right to do so applicant thereafter, which seems to have
after a valid adverse timber culture claim in- been Mr. Welden; therefore, in my opinissue would seem to be, is the defendant tervenes. entitled to purchase the land under the Acting SECRETARY Joslyn to Commissioner ion, the latter's entry cannot be set aside act of June 15, 1880, when it is admitted McFarland, July 25, 1883. (F. W. B.)
in favor of the contestant, on the ground and proved that such purchase is intended I have considered the appeal of William of his preference right; but he may, under solely for the benefit of the interpleader, Darnell from your decision of June 3, the 3d section of the act of May 14, 1880, and will
, if allowed, result in the defeat of 1882, in the case of Lunney vs. Darnell, attack the existing entry on the ground of the superior equities of the plaintiff? I cancelling his timber culture entry No: a prior settlement, if such are the facts. do not think the defendant is under the cir- 1385, Grand Forks District, Dakota. [See decision in Banks vs. Smith, this cumstances so entitled.
It appears that Lunney filed D. S. No.'number.-ED.]
TIMBER AND TIMBER CULTURE. Glaze, that at the same time that papers in
the new contest of said Ella R. Bogardus COMMISSIONER MCFARLAND to Samuel Dewell, COMMISSIONER MCFARLAND to Reg. and Rec., were being drawn up in your office after Harrold, Dak., Sept. 13, 1883. (S. W. S.) Fargo, Dakota, Aug. 28, 1883. (X. G. H.) dismissal of the first contest, namely Dec. There is no provision in the timber cul
You inquire : "Is it admissible for a 7, 1881, he (Roe) presented before the ture laws giving any preference right of Register, or Receiver, or Special Agent, contest was perfected the relinquishment entry by reason of settlement or of breakor Člerk, to make a Timber Culture Entry of entry No. 9141, of said Rebecca Jane ing a portion of the land prior to filing of in a district other than the one in which Glaze, together with the application of township plat in the local land office. he is located?”
Joseph Glaze, to make T. C. E. of said I think such entry, excepting as to tracts, said papers being accompanied by
GOLDEN VS. SPEEGLE ET AL. special agent, is admissible. The officer, the sum of fourteen dollars, as fee and Act of June 3, 1878.-—- Pre-emption.—Timber and or clerk, making such entry, should state commissions, and said Glaze made his affi
stone act of June 3, 1878, construed.-In in his affidavit the particular position he davit then and there before the Register.
view of the pre-emption claim, the timber holds, that the entry may be intelligently
The Register then took the papers un- application is rejected. dealt with. [Condensed.]
der advisement, and the next day returned COMMISSIONER MCFARLAND to Register and Rethem to Roe, rejected for the reason that ceitel, San Francisco, California, April 17,
a contest was initiated by Ella R. Bo- 1883. (J. G. J.) GLAZE VS. BOGARDUS.
gardus, against entry of Rebecca Jane I have examined the contested case of Defective Notice.-- Affidavit of, Contest not. Cor- Glaze, before relinquishment of said Glaze King Hiram Golden vs. James Simpson Void at Inception.-In view of the evidence, was presented to us with this application, and Lysander Speegle, forwarded with the timber culture entry of defendant is can- said contestant having acquired inceptive your letter of February 9, 1883. celled as void at inception. right."
The records show that Golden made COMMISSIONER MCFARLAND to Reg. and Rec., Mr. Roe further alleged that Ella R. Timber Application No. 273, March 10, Grand Island, Neb., Sept. 13, 1883. (J.W.B.) Bogardus was a married woman, and if 1882, under act of June 3, 1878, for lots.
The Register in his letter of Nov. 13, she claimed the right to enter by reason 13 and 14, Sec. 19, lot 12, Sec. 30, and 1882, transmitted the papers in the con- of having been deserted by her husband, N. E. L of N. W. 1, Sec. 32, 17 N., 12 W. test case of Joseph Glaze vs. Ella R. Bo- he believed that he could produce evi- Simpson filed D. S. 15,597, November gardus, involving the N. 1, N. W. 1, and dence to prove that she had not been so 9, 1880, alleging settlement August 26, W.IN. E. , 12, 10 N., 14 West. deserted.
1880, claiming lots 12 and 13 of Sec. 30. It appears from our records and files He also alleged that the affidavit of con- Speegle filed D. S. 16,431, May 8, althat one Rebecca Jane Glaze made H. E., test had not been corroborated as required leging settlement May 4, 1882, claiming No. 9141 of said tracts on the 28th of by the Rules of Practice—which fact so lots 12, 13 and 14, Sec. 19, and lot 4, Sec. August, 1879; that Ella R. Bogardus on appears from the papers. He accordingly 30. the 28th of October, 1881, filed affidavit asked for a hearing in order to present Township plat filed July 14, 1879. of contest against said entry, and trial was him an opportunity to prove his allega- Simpson, although duly notified, made set for December 7th following.
tions. You refused his application in that default at the hearing, and the testimony The charge in this case was abandonment. direction, and he appealed to this office, shows that he does not reside on the land.
On said December 7, 1881, the plaintiff renewing his application for a hearing to Your decision, as between Golden and was present, and the defendant appeared determine the respective rights of Joseph Speegle, is based solely upon the propoby attorney, who filed motion to quash Glaze and Ella R. Bogardus to the tracts sition that as Speegle settled subsequent service of notice. mentioned.
to the timber application of Golden, the This motion was sustained, and the con- By letter addressed you March 29, 1882, only question involved is as to the chartest was then and there dismissed, and no you were called upon for more full report acter of the land, whether it is chiefly appeal appears to have been taken from in the premises, and to this the Register valuable for timber or stone, and unfit for your action. Immediately after this dis- responded April 14, 1882, at the same cultivation, and therefore ignoring the missal, on the same day-Dec 7, 1881—the time sending up the rejected timber cul- consideration of the rights of Speegle by contestant, said Bogardus, filed a new afli- ture application papers of Joseph Glaze, virtue of his settlement and improvements davit of contest which was not corrobor- and therefore, by letter addressed you on the land as a pre-emptor. ated as required by Rule 4 of Practice, and May 14, 1882, a hearing was ordered. But in this view of the case I think you thereupon you issued notice setting trial From your joint report and opinion have misconstrued the tenor of the act of for January 18, 1882. Some time before rendered September 19, 1882, the case was June 3, 1878. this, namely, on December 23, 1881, the heard July 24, 1882, all the parties being The first section of said act provides relinquishment of said Rebecca Jane Glaze present or represented; and your finding that nothing therein contained shall “deof her aforesaid H. E. No. 9141 was filed, was, in substance, that said Ella R. Bogar- feat or impair any bona fide claim under and the entry was canceled thereon on dus, at the time of initiating “ her several any law of the United States, or authorize your records. On the day set for trial, contests did not have the legal standing the sale of any mining claim, or the imJanuary 18, 1882, the case was called, and to entitle her to the benefits of the prefer- provements of any bona fide settler." there being no appearance on the part of ence right rule," and from such decision The second section designates the predefendant, the plaintiff filed a notice ask- said Ella R. Bogardus, through her at- liminary steps to be taken by the appliing that the aforesaid relinquishment be torney, appeals to this office.
cant in the prosecution of his claim; and considered as an admission of the allega- It is clear from the evidence in this after the requirements of this section have tion---abandonment—made by plaintiff, and case that the affidavit of contest filed by been complied with, the third section preprayed that she, the plaintiff, be relieved said Ella R. Bogardus Dec. 7, 1881, was scribes the duties of the Register as to from furnishing any further evidence in not corroborated as required by Rule 4 of posting notice of application to purchase, support of her charge, and in support Practice Rules, and that she at the time and furnishing copy of same to applicant thereof cited Johnson vs. Halvorsen, of the initiation of her several contests for publication; and after the expiration Copp's L. O., vol. 8, p. 56. This action was a married woman. I fail to perceive of the period of time for publication, this you granted, and plaintiff, said Ella R. any error in your findings, and your de- section further prescribes that, “if no adBogardus, there on said January 18, 1882, cision is therefore affirmed, and the afore- verse claim shall have been filed, the permade T. C. E. No. 3785, of the tracts in said T. C. Entry of said Ella R. Bogardus, son desiring to purchase shall furnish to dispute.
No. 3785, is held for cancellation on the the Register of the Land Office satisIt further appears from an affidavit filed ground that it was illegal and void at in- factory evidence; first, that said notice by John H. Roe, attorney for Joseph'ception.
of the application prepared by the Regis. ter as aforesaid, was duly published in a 1771 for the said land, and that her right It is not shown nor claimed that B. J. newspaper as herein required; secondly, name is Eliza E. Robertson, not Eliza J. Robertson ever made any improvements that the land is of the character contem- - which initial was a clerical error—and on the land, or that he had such a claim plated in this act, unoccupied and without that she did not receive notice of the as his legal representatives could have improvements, other than those excepted, railroad claim for her land.
perfected. Had such been the case, they either mining or agricultural."
The facts as shown by the records of very probably would have made applicaThe improvements referred to as ex- this office are as follows:
tion to perfect the same. But Mrs. Robcepted are “for ditch or canal purposes,” The land in question is within the thirty- ertson made her filing in her own name as and I think the evident intent of the act mile or indemnity limits of the grant of a personal right, alleging settlement May was to allow adverse claims to be placed March 3, 1871, to the Southern Pacific R. 20, 1879. This filing was examined and upon record during the pendency of the R. Company, Branch Line, and was with canceled by my predecessor's decision of notice of publication, and that the result- drawn for the benefit of the same May 10, January 15, 1881, which also considered ing improvements of such claims are to 1871.
the rights of the railroad company, under be considered in the same light as im- The township plat of survey was filed the ruling then in force, after the removal provements made prior to the date of in the district office December 18, 1874. of the Rancho claim. application to purchase.
The records of this office show that B. Mrs. Robertson states, in her affidavit, The hearing in the case was had in July, J. Robertson filed I. S. No. 724, January that she was not notified of the claim of 1882, and as Speegle only settled on the 13, 1875, for Lots 2, 3 and 4, Sec. 1, and the railroad company for the said land. land in contest in May preceding, his Lot 4, Sec. 2, and N. E. I, N. E. , Sec. But the Register, who is a sworn officer, good faith and improvements must be 11, 3 N., 20 W., alleging settlement March reported by letter of April 5, 1881, that judged accordingly.
15,1872. This land with the exception of notice of my predecessor's decision of He shows, however, a bona fide act of N. E. 4, N. E. 1 of 11 was also within the January 15, 1881, was duly served upon settlement, and that he has resided on the claimed limits of the Sespe rancho, and Mrs. Robertson, January 31, 1881. land more than half the time since, having was not excluded therefrom until March The decision in this case being final, and in the meantime nearly completed his 14, 1872.
the land having been selected by the railhouse, and cleared some of the ground It appears that B. J. Robertson, who road company thereunder, were the facts and made some brush fence. The absence made the above filing, died in 1877. His sufficient (which they are not), I could not, of rain during his residence on the land widow, Eliza E. Robertson, filed D. S. No. in view of the Department ruling in the has prevented its cultivation.
1771, for Lots 2, 3 and 4 of Sec. 1, and Lot case of Eben Owen et al. (Copp, v. 9, p. The testimony as to the character of the 4 of Sec. 2, 3 N., 20 E., S. B. M., alleging 111), reopen the case and review it. One land is very conflicting. A portion of the settlement May 20, 1879.
Commissioner of the General Land Ofwitnesses testify that it is more valuable January 15, 1881, at the request of the fice has no authority to review a defor timber than for anything else, and the attorney of the Southern Pacific R. R. cision of his predecessor which has beother portion are just as positive that it is Company, the filing of Mrs. Robertson was come final. The application is aocordchiefly valuable for grazing purposes. taken up and examined by this office; and ingly rejected.
Under the circumstances I reverse your under the department decision of Janudecision and reject the application of ary 4, 1881, in the case of Johanna RichGolden, and award the land to Speegle ardson et. al, vs, said Company, it was CENTRAL Pacific RAILROAD Co. vs. ORR. subject his full compliance with the law hell that the land in question being within all respects, when he applies to make in the thirty-mile limits of the grant, it Pre-emption Claim.- Public Sale.--As the preproof and payment. might be selected after the removal of the
emption right upon which Orr bases his right
was extinguished on the day of public sale The D. S. of Simpson is this day can- rancho claim, to satisfy deficiencies in the
described, the land became public land, and celed.
granted limits; that after the removal of passed to Company under its grant.
said claim, the withdrawal of May 10,1871, SECRETARY TELLER to Commissioner McFarRAILROADS.
became effective, and the land was held in land, Sept. 21, 1883. (S. W. R.) ROBERTSON vs, SOUTHERN PACIFIC R. R. reservation to supply losses in the granted I have considered the case of the CenBRANCH LINE.
limits, and was not subject to pre-emption tral Pacific Railroad Company vs. Michael Official Reports. Where an issue of fact is settlement; that Mrs. Robertson having Orr, involving the W. 1 of the S. E. and
raised whether or not notice of a decision settled May 20, 1879, as alleged in her s. of S. W. 1 of Sec. 5, Twp. 12 N., R. 8 was given to a party in interest, the official filing, No. 1,771, the same was held for E., M. D. M., Sacramento District, Calireport of the Register that such notice was cancellation, to the extent of the tracts in fornia, on appeal by the Company from given will be accepted in preference to the the odd-numbered section. affidavit of an interested party.
your decision of April 28, 1882. Res Judicata.—The Commissioner of the Gen
By letter from the Register at Los The tract is within the limits of the eral Land Office has no authority to review Angeles, dated April 5, 1881, this office grant by act of July 1, 1862 (12 Stat. 489), a final decision of his predecessor.
was advised that Mrs. Robertson was to the Company, the right whereof attached COMMISSIONER McFARLAND to Reg. and Rec., served with notice of above decision, Jan-June 1, 1863, and the withdrawal for which Los Angeles, Cal., August 25, 1883. (W.J.D.) |uary 31, 1881, and that no appeal there was made Sept. 13, 1862. I have considered the application made from had been filed in that office.
It appears that one W. B. Wilson filed May 3,1883, by Wm. J. Johnston, as attor- The said decision having become final declaratory statement No. 421 for the tract, ney for Mrs. Eliza E. Robertson, for a for want of appeal, Mrs. Robertson's filing June 15, 1856, alleging settlement July 1, reconsideration of my predecessor's decis-was canceled, to the extent of the tracts 1852. ion of January 15, 1881, rejecting her in the odd numbered section, by letter Under date of January 25, 1877, Orr apclaim for Lots 2, 3 and 4 of Sec. 1,3 N., 20“ F,” of June 14, 1881, and the case closed. plied at the local office to make homestead W., S. B. M., Cal., and cancelling her pre- The records of this office also show that entry of the tract, basing his right upon emption filing for the same.
the said land was selected by the Southern Wilson's filing, etc. At Orr's instance, Mr. Johnston has filed the affidavit of Pacific Railroad Company, May 25, 1883, citation duly issued the same day to the Mrs. Robertson, who swears that she now List No. 5.
company to appear at the local office, occupies the said lots, together with lot 4 Mr. Johnston's application is based upon March 6th ensuing. Hearing was accordof Sec. 2, said township and range, and the assumption that Mrs. Robertson has ingly had, whereat both parties appeared. has continuously occupied the same since been claiming this land since 1872, whereas Under date of June 29, 1878 (the record the year 1872; that after the death of her the fact is, she was not qualified to make fails to discover the cause of such delay in husband (Benjamin J. Robertson), in 1877, a pre-emption settlement until 1877, after the rendition of their decision), the Regshe filed her declaratory statement No. her husband, B. J. Robertson, died. ister and Receiver finally found from the
evidence in favor of the company.
From BRAMWELL VS. CENTRAL AND UNION PA- It appears that Craig alleges settlement such action Orr appealed, but by reason CIFIC RAILROAD COMPANIES. on March 11, 1881, and Morgan on March of the contradictory character of certain Private Rights-- Privity of Estate.-F. filed D.S. 18, 1881, and that on April 9, 1881, the material testimony, you were unable to May 19, 1869, and relinquished March 29, latter filed an affidavit charging mala fides determine as to the validity of Wilson's
1871. B. homesteaded March 29, 1871— rail. in Craig's claim, and that it was not made claim at the date the company's right at
roads claim under act of May 6, 1870. tached, to wit, June 1, 1863. Wherefore,
privity of interest is shown between T. and for his own benefit, but for speoulation.
B., and T.'s right was simply inchoate, the On a careful review of the testimony taken you advised the Register and Receiver, land is awarded to the railroads.
at the hearing, I am convinced that the February 24, 1882, to inform appellant that ActinG SECRETARY Joslyn to Commissioner charge is wel founded, and that Craig's he would be allowed to explain the patent McFarland, Sept. 12, 1883. (S. W. R.) settlement was not bona fide, but was made discrepancy of statement in the testimony I have considered the case of George with the intention of proving up for the of one of his material witnesses, after due Bramwell vs. Central Pacific and Union benefit of another person, to whom he had notice to the company.
Pacific Railroad Companies, involving the agreed to convey the land after entry. This Orr accordingly did so far as lay W. of N. W. I of Sec. 26, Tp. 7 N., R. The ground of your decision is that the in his power, the company's attorney, T. 2 W., Salt Lake City, Utah Territory, on mere fact that such an agreement may B. McFarland (who was the Register at appeal by Bramwell from your decision of have existed is insufficient to debar him the time the Register and Receiver decided July 21, 1881.
the right of entry, when he swears that in the company's favor, as aforesaid,) ob- The township plat was filed in the local no such contraci now exists,” and you cite jecting to the admissibility of such testi- oflice March 15, 1869.
as authority the case of Larson vs. Weismony at that stage of the proceeding, May 19, 1869, one Elisha Thomas filed becker (9 Copp's L. O., 60). Said case is after the case had been submitted and for- declaratory statement No. 574, for the N. one where a pre-emptor, who had made warded on appeal to your office. But not. w. of said section 26, but relinquished settlement in good faith, “mortgaged his withstanding such demurrer, you rendered the same March 29, 1871.
land for no speculative purpose," but for your decision in question, holding that
It appears that under date of March 29, the purpose of procuring means wherewith while the testimony “is not so clear as 1871, Bramwell made homestead entry to make entry for his own benefit, and, in could be desired,” it establishes the fact No. 1072 of the tract, and made final proof my judgment, is not applicable to the case that Wilson had a valid, subsisting claim December 22, 1877, whereupon final cer- at bar, where the evidence shows that the to the tract at the date of the definite loca- tificate No. 923 issued to him therefor. settlement itself was not in good faith. tion of the road, June 1, 1863, which, un- The companies claim the tract jointly Section 2 of the act of May 28, 1880, der the terms of the statute (12 Stat. 492), by virtue of the act of May 6, 1870 (16 (21 Stat., 143,) under which Craig's claim excepted the tract from the operation of Stat., 121), whereby said ' section was made, provides that said land "shall the grant.
“granted to them in equal shares, with the be subject to disposal to actual settlers Without discussing the minutiæ of the same rights, privileges, and obligations only," and a comparison of said act with several points of exception specifically now by law provided with reference to that of May 9, 1872, (17 Stat., 90,) and raised upon appeal by the company's other lands granted to said railroads," with other acts relating to the disposal of counsel, touching Wilson's personal qual subject, however, to the proviso: “ that no Indian lands in Kansas, shows that it was ifications and Orr's, it will suffice to state rights of private persons shall be affected the policy of Congress to subject private that your own records discover the fact by this act.”
entries upon these diminished reserve lands that the premises were proclaimed for sale You held that as Bramwell's rights were to the general principles of the pre-empunder date of June 30, 1858, but that they initiated subsequently to the date of the tion laws. It was this view that your were not offered by reason of their alleged approval of the act cited, his case is not office took in your circular instructions of mineral character. Such being the case, protected by said provision.
June 28, 1881, to the Wichita Land Office, Wilson should have made proof and pay- I concur with you in this opinion; as it approved by this Department, which prement forthwith, pursuant to the express will be observed that the record fails to scribed certain prerequisites to entry, provisions of the original pre-emption act, discover any privity of estate between under "the general principles of the preto wit, the act of September 4, 1841 (5 Thomas and Bramwell, whereby the lat- emption laws, * as evidence that Stat. 457), the 14th section whereof pro- ter's rights could be made to antedate the the settlement is made in good faith." vides "that this act shall not delay the grant, or to take effect by relation as of the Bona fides in settling is an original and sale of any of the public lands of the date of Thomas' initiation of claim to the fundamental principle of the pre-emption United States beyond the time which has premises. Moreover, it should be ob- laws, and an actual settler" is one who been, or may be, appointed by the pro- served that Thomas' right was merely in-goes upon the land animo manendi, or, as clamation of the President, nor shall the choate, he having relinquished without the court remark in Lytle vs. State of Arprovisions of this act be available to any perfecting the same, or doing anything to kansas, (22 How., 193,) for the purpose of person or persons who shall fail to make that end.
"seeking a home." In the case just cited, proof and payment, and file the affidavit
Your decision is accordingly affirmed. the court instanced the fact that the claimrequired before the day appointed for the
ant went upon the land with a view to commencement of the sales as aforesaid."
selling it after entry as evidence of bad The record fails to discover that Wilson
faith, and held his entry void. In Hark. complied with such requirement. Hence
MORGAN VS. CRAIG.
ness vs. Underhill (1 Black, 316), where it must be assumed that he failed to do so, Oxage Indian Trust and Diminished Reserve entry was made under the proviso to the and that the provisions of the act cited Lands.-Consideration of a case involving act of April 5, 1882, (4 Stat. 503,) grantwere not available to him. Thus it ap- question of good faith and speculative entry. ing pre-emption privileges to "actual setpears that the particular claim upon which Acting SECRETARY JOSLYN to Commissioner tlers," and where there was an agreement Orr bases his claim having fallen, Orr's McFarland, Aug. 27, 1883. (D. A. McK.) to sell the land, the court say, “ It was an must fall likewise.
I have considered the case of Agnes attempt to speculate on his part, and also I am therefore of the opinion that at Morgan vs. James H. Craig, involving a on the part of Stillman, his co-partner, by the date of the definite location, June 8, tract within the Osage Indian trust and fraud and falsehood; they both knew 1863, there was, so far as the record dis- diminished-reserve lands, namely, the S. E. equally well that Walters was no actual closes, no valid, subsisting claim to the # of Sec. 29, Twp. 29 S., Range 1 W., settler on the public lands;" and they actract in question, whereby the same Wichita, Kansas, on appeal by Morgan cordingly held that such a speculative setwas excepted from the operation of the from your decision of July 2, 1882, allow- tlement was not even a foundation for an grant.
ing Craig to make entry, and holding her equitable right to the land. Under these Your decision is accordingly reversed.'filing for cancellation.
rulings, since Craig's settlement was not
in good faith, he acquired no right of en- that he went there in good faith, believing in the investigation of the question of the try by it, and his declaratory filing should that there was no bona fide prior settle- alleged error in the location of the western be canceled. ment on it.
boundary of the Devil's Lake Indian ResYour decision is accordingly reversed. On April 28, 1879, Seacord returned to ervation in Dakota.
the land, repaired and set up the house In Article IV. of the treaty of February SEACORD Vs. TALBERT.
within a few rods of Talbert's house, on 10, 1867, with the Sioux Indians (15 Stat., Settlement.-The settlement claimed by Seacord the same subdivision, and soon moved into 595), the boundaries are described as folis not a legal settlement.
it. He has made some improvements, and lows: SECRETARY TELLER to Commissioner McFar- has had his residence there since. He
"Beginning at the most easterly point land, September 24, 1883. (D. A. McK.) filed his aflidavit of contest on November of Devil's Lake; thence along the waters I have considered the case of James M. 4, 1879.
of said lake to the most westerly point of Seacord vs. Thomas Talbert, involving the These parties claim under the act of the same; thence on a direct line to the N. E. of the N. W. I, the N. W. Lol the July 5, 1876, (19 Stat., 74), section of nearest point on the Cheyenne River ; N. E. 1, and Lots 1 and 4 of the N. E. , which provides that these lands “shall be thence down said river to a point opposite of Section 22, Township 16 S., Range 9 E., subject to entry only by actual set- the lower end of Aspen island, and thence Kansas Trust and Diminished-reserve tlers," and their applications to enter have on a direct line to the place of beginning.” lands, Topeka District, on appeal by Tal- been filed since the initiation of the con- The boundaries of the reservation were bert from your decision of September 11, test. In considering their respective rights, surveyed in 1875, and their correctness 1882, awarding the land to Seacord. it is clear, in the first place, that Adams and accuracy have not been questioned
It appears that one Adams had made did not make a bona fide settlement on this until recently, the agent claims to have claim to the land in controversy, and had tract, such as would have avoided either discovered that the western reservation done some breaking and partially dug a party's subsequent settlement. He made boundary does not strike the Cheyenne cellar on it in 1878; but he had discon- a pretense of settling there, for the pur- River at the nearest point on a direct line tinued the improvements, never lived on pose of holding it if he ever concluded to from the most westerly point on Devil's the land, and informed Seacord that he settle actually, but had long before aban- Lake. would give up his claim if Seacord would doned his improvements, and was endeav
The recent survey made by the General buy the improvements. Seacord at this oring to negotiate their sale. Neverthe Land Office also purports to have discovtime was living in another county, where less when Seacord made what he is pleased ered a point further west on the Cheyenne he made a contract to remove a preacher's to call his settlement, namely, by driving River, which is about two and one-half family to the northern part of the State,' four stakes into the ground, he believed miles nearer to the most westerly point on . and, whilst engaged in fulfilling the con- that the right to the land was in Adams, Devil's Lake, than the point to which said tract, he passed in the vicinity of the land and he did not drive those stakes as western boundary line was made in 1875. on March 18, 1879, and on that day went an act of ownership, or as an assertion of Whether or not the Cheyenne River has upon it in company with Adams, and a claim, but by Adams' license, and for been brought nearer to the most westerly drove four stakes af the place where he the purpose of denoting the spot where he point of the Devil's Lake at another point proposed to put a house. He then went intended to place a house if he effected by changes in its bed, which often occurs away from the land, and made arrange- the proposed purchase of the improve in these western rivers, is not shown in ments with Adams to purchase the said ments. Consequently his temporary pres- the report. improvements, and also a house which ence there on March 18, 1879, and the act The boundary lines of the reservation Adams owned, and which was on another of driving the stakes, did not amount to a have already been surveyed and estabtract of land.' It does not appear that legal settlement, and such a settlement he lished; and since that was done, a large these improvements and this house were could only effect by again going on the number of settlers have in good faith gone then and there purchased. Next day Sea- land animo manendi.
upon the lands lying west of the reservacord, with his own family, went north in He claims that the subsequent purchase tion line established in 1875, believing continuation of his business of removing of the improvements, and the removal of them to be a part of the public domain, the preacher's family, and was absent until the house to the land, were in continuation and have acquired rights thereon. April 28, 1879.
of his settlement. But this position is In view of these facts, no change will be It also appears that while Adams was untenable. His purchase, even if it were made in the western reservation line, as still claiming this land, namely, about No- made afterwards on the same day, which is already established. vember 1, 1878, he contracted with one not shown, could have given him but the The Commissioner of the General Land Hollenbeck to place the aforesaid house on same right to the land which his vendor Office has been so instructed. it, and that, in pursuance of the contract had, and that has been shown to have been then made, and without further instruc-unsubstantial and invalid. And since the
CALIFORNIA is calculating on a vintage tions from Adams, he placed the house on house was not placed on the land by him of 12,000,000 gallons. the land on March 22, 1879. or for him, he could not acquire a settle
A FLORIDIAN estimates the cost of setIt appears further that on March 28, ment by virtue of it. 1879, Thomas Talbert, who was traveling When Talbert came upon the land six and the annual income as $1,000 per acre.
ting out a five-acre orange grove at $797, with his family in search of vacant land days afterward, he had no notice of any
MINNESOTA, according to a pamphlet just on which to settle, heard of this tract, thing which could affect his rights; he went there and saw it, and on the next found it unoccupied, unsettled, and with-issued by the State Board of Immigration, day settled on it with his family. He had out an adverse claim to it; and his actual has still a vast tract of unexplored terrinotice of the old breaking, of the partially settlement there next day gave him a valid tory within her borders. A number of dug cellar, of a house in two parts, empty and good right to the land, which he counties are as yet a veritable terra incog
nita, neither surveyed nor explored. and not set on a foundation, and of the should now be allowed to perfect. fact that no one had ever lived on the Your decision is accordingly reversed. The grazing lands of Colorado, Neland; and he also heard that Adams laid
braska, Wyoming, Montana, Eastern Oreclaim to the tract, and was going to sell DEVIL'S LAKE INDIAN RESERVATION. gon, and Idaho are estimated at 1,000,his improvements. It is not clear whether SECRETARY TELLER to the Commissioner of In- 000,000 acres. The Oregon Short Line is it was then, or two days afterwards, that dian Affairs, September 18, 1883.
now opening a region capable of supporthe was informed of Seycord's claim. He I herewith transmit a copy of a letter of ing 5,000,000 cattle and 10,000,000 sheep, built a house, and has made various im- the Commissioner of the General Land which, when it shall be fully occupied, provements since, and has continuously Office, of the 11th instant, submitting with can export yearly 600,000 cattle, 1,500,000 resided on the land ; and there is no doubt report on the subject, plat of survey made sheep, and 10,000,000 pounds of wool.