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chased his interest in the tract and the This was five weeks subsequent to Probst's 1880, and directed a hearing to determine improvements thereon, consisting of an old entry. I think the tract was free from the rights of the parties as in cases of and nearly worthless house, the eight or appropriation or any pre-emptive right on simultaneous applications. The testimony nine improved acres, and the fencing ma- the part of Whyte at the date of Probst's at this hearing shows that Spellman had terial around the same, for the sum of entry, and the latter must be recognized. abandoned the tracts and removed from fifty dollars ; and on the 17th and 18th I reverse your decision, and award the the State of Kansas. Whatever right he moved the house materials to another part tract to Probst, as recommended by the formerly had to it became thereby forof the land, and rebuilt it, except the bat- local officers.

feited, leaving only for consideration the tening of the cracks, the want of which

right of Townsend, as against the governrendered it unfit for habitation. On Jan

L. A. JENNINGS.

ment. Townsend died September 20,1880, uary 19th, Patrick Whyte relinquished his Married Woman-Proceedings for Ilusband's having made certain improvements on the entry, and the same was canceled on that Benefit.-A homestead entry by a married land with intention of moving thereon and day. On March 1st she took some house- woman is illegal. In this case the wife may making it his home, which hy reason of hold effects to the house, but did not commence residence therein until March 29th,

enter the land, and in making final proof, his long continued ill-health he was unable to

do.

right will relate back to date of original setsince which time she has continuously oc- tlement.

The question presented is, whether or cupied it. From January 18th to March COMMISSIONER MCFARLAND to L. A. Jennings, not his heirs are entitled to any right unIst she does not appear to have been upon Lice Oak, Florida, Oct. 12, 1883. (H. F.S.) der Sec. 2291, which provides for a certifithe land, or to have performed any act of There is no evidence on the records of cate of entry and for patent to“ the persettlement thereon, but has since the latter this office showing that you ever made an son making such entry; or if he be dead, date broken two acres and cultivated a entry of the land as alleged; but the land his widow; or in case of her death, his small garden.

in question appears in the name of Rachel heirs or devisee.” It also appears that a county road runs J. Jennings, who, you assert, is your wife, The record shows that Townsend filed a across one forty-acre tract of the land in and that while you were absent from timber culture application for the tracts dispute, and that since 1853 the father of home she, becoming alarmed at not hear- August 28, 1878, and that Spellman filed Probst has occupied and cultivated from ing from your entry of the land, made ap- a pre-emption declaratory statement Notwenty-five to forty acres of the tract plication in her own name for the same vember 23d following; alleging settlement south of the road (the improvements of tract, and made the entry now on record. the same month. Townsend's application Whyte being on the north side) which The entry made by your wife is clearly was rejected by your office February 12, were enclosed with his adjoining land, and illegal, as the law makes no provision for 1879, and on April 12, 1879, Spellman that he gave to his son, the contestant, all the entry of lands under the homestead act made homestead entry for the tracts. On his right to and interest in the same a by a married woman, and therefore will April 15th, Townsend applied to enter the short time prior to the latter's entry, and necessarily have to be canceled.

tracts under the homestead laws, but his that the son entered upon the tract, built In view of the fact, however, that the application was rejected by reason

of a house and other out-buildings, and has entry made by Mrs. Jennings was for the Spellman's prior entry. The local officers continually since resided thereon, and has purpose of protecting your home and im- then notified Spellman that his entry had from fifteen to twenty acres under cultiva- provements, and that her interests and been removed from the records because tion. His improvements are valued at yours are identical, I have decided to al. Townsend's adverse claim had attached about $300.

low you, if properly qualified, to make an under his timber culture application prior Prior to these acts of the parties, the entry of the land in question on filing in to his (Spellman's) settlement, and that former occupants appear to have respected the District Office, at Gainesville, the re- they would consider the claims of the two each other's enclosures.

linquishmennt of Mrs. Jennings for the as made simultaneously. This accords There are equities in favor of both same, and on making final proof you will with the views announced by my prede. parties; but their rights must be deter- be entitled, under the Act of May 14, 1880, cessor in his decision of March 18, 1880, mined under the law.

to credit for the period of settlement and wherein he held, among other things, that It is well settled that a homestead entry cultivation made before the entry was Townsend's application to enter the tract is a segregation and appropriation of the made; or in other words, your right may under the liomestead law was equivalent public land, which ceases to be at the dis-relate back to the original date of com- to actual entry as respected his rights. posal of the government so long as the mencing residence and cultivation upon Concurring in this opinion, and there entry subsists, and that a pre-emption the land.

being no other party in interest, and right can not be initiated to such tract

Townsend having since died, his heirs beuntil some act of settlement subsequent to TOWNSEND'S HEIRS vs. SPELLMAN. come entitled to perfect the entry he cancellation of that entry. During its Entry by Heirs-- Application Equivalent to En- initiated. continuance an adverse pre-emptive right try.- Where an application is made by a party Your decision that, as Townsend died can not attach. (Dahl vs. Crystal, Copp,

to enter land as a homestead, and the party before actual entry of the tracts, his heirs Sept., 1874; Op. of Atty. Genl., Copp,

dies before the entry is perfected, his heirs have no rights, notwithstanding his appli

may make the desired entry. August, 1881.)

SECRETARY TELLER to Commissioner Mc Far- cation to enter them, is reversed; and The only act of settlement performed land, October 16, 1883.

Spellman having removed from the State by Whyte prior to Probst's entry on Feb- I have considered the case of A. C. and no longer prosecuting bis claim, his ruary 21st was on January 17th and 18th, Townsend vs. Hiram Spellman, involving entry will be canceled, and the application but at this date Patrick Whyte's home- the S. E. } of the S. W. 1, the W. LofS. W. of the heirs of Townsend be allowed. stead entry was in force, and the land was and the S. W. of S. E. of Sec. 24, under his appropriation. It therefore Tp. 1, R. 27, Kirwin, Kansas, on appeal

HAWKER VS. FOWLKS. availed her nothing. Had she followed by the heirs of Townsend (deceased) up this act by others subsequently to can- from your adverse decision of September Act of June 15, 1880.- Construction of Written cellation of Patrick Whyte's entry and 2, 1881.

Agreement.-The written agreement in this

case is not such as is contemplated by the 2d prior to Probst's entry, (to wit, between On appeal from your decision of July section, act of June 15, 1880, but is in contraJanuary 19th and February 21st,) she 21, 1879, in this case, holding that Spell. vention of Section 2290 R. S. would have been found the prior settler. man had the superior right and should be SECRETARY TELLER to Commissioner McFarBut she did nothing during this time, and permitted to enter the tracts under his land, July 5, 1883. not until March 29th, according to her homestead entry, my predecessor, Secre- I have considered the case of Robert own testimony, did she go upon the land tary Schurz, reviewing the law and the Hawker vs. John W. Fowlks, involving the for the purpose of making it her home. 'facts, vacated your decision, March 18,'N, W. of Sec. 22, Twp. 2 S., Range 1 E., Salt Lake City, Utah, on appeal by Haw- space, after it was read to them ; that other 80-acre tract in substitution of said ker from your decision of October 27, John W. Fowlks in signing his name N. : Upon advice by the officers that it 1881, holding the entry of Fowlks for said omitted the letter “W.,' but that upon could not be permitted, Fowlks shortly N. W. I intact, and the cash entry of Haw- his attention being called thereto, wrote afterwards forbade Hawker's further imker for the N. } of said N. W.1, under said letter by interlineation. On the con-provement of the tract, whereupon Hawthe act of June 15, 1880, for cancella-trary, the Fowlks—father and son-testify ker commenced the contest. tion.

that John W. Fowlks could not then write On these facts the local officers found It appears that John Fowlks, father of his name, and did not sign the paper, but that J. W. Fowlks executed said paper ; the contestee, made homestead entry of that John Fowlks only signed it, and they that it was in violation of Sec. 2290 R. S., said N. W. 1, May 8, 1869, that the entry claim that the letter "W" was interlined which requires a homestead entry to he was canceled for relinquishment by your afterwards by some person to them un- made for the party's exclusive use and letter of July 20, 1871, but the cancellation known, and that th:it name was not in- benefit, and not directly or indirectly for was not noted on the local records until tended to mean John W. Fowlks, but John the use and benefit of any other person, reception of your subsequent letter of Fowlks only, thus making a contract be- and recommended cancellation of his enNovember 23, 1873; and that John W. Itween John Fowlks and Robert Hawker, try. Your decision holds that Fowlks did Fowlks made homestead entry of the tract and excluding any agreement on the part not execute said paper; that also if he did, February 27, 1874.

of the homestead entryman. This state- not being under seal nor acknowledged, it Hawker filed an affidavit February 15, ment, if true, would show that John could not be enforced by reason of Haw1879, alleging that, with his family, he had Fowlks was a mere witness to his own sig- ker's failure to comply with the required continuously resided on the N. } of the N. nature. John Fowlks and James Hawker conditions on his part, and that his remedy, W. & since the fall of 1869, and had val- admit their signatures as witnesses. if any, was in the courts; and you held uable improvements thereon, and that The testimony further shows that John Fowlks' entry intact. Fowlks had never been in possession W. Fowlks is an illiverate person, that his Whether or not J. W. Fowlks actually thereof, but had agreed to convey the father signed his name to his original signed this paper is not, in my opinion, tract to him. A hearing was ordered homestead paper (but at his request and material under the statute. if he was thereon, and held in April following. in his presence), and has generally trans- present at the time of its execution, knowIt further appears that in June, 1881, acted for him his business matters.

ing the nature of the business for which the local officers allowed Hawker to make This conflict of testimony requires elu- the parties had met, and permitted his cash entry for the N. 1 of the N. W. , cidation from collateral facts. It appears father to sign his (J. W. Fowlks') name, under the second section of the act of that Robert Hawker had, at the date of and to act as his agent, the agreement June 15, 1880.

the hearing, been in possession of the N. would be equally binding upon him as if Hawkers's possession of said N. is not of said N. W. from about October, he had signed it; and I cannot doubt, seriously questioned, but the issue is 1869; that he had thereon two houses, a under all the facts, that it was the inchiefly confined to the alleged contract, stable, and other out-houses, 200 rods of tent of Fowlks to recognize the claim which is in the following words:

ditching, and about 30 acres under culti- of Hawker to said N. ), and to convey “Big COTTONWOOD, Salt Lake Co.,

vation; that he bought these improve- it to him upon acquisition of his own

“April 7, 1874. ments or a portion of them from John title to the N. W. . This was in viola"This is to certify that I, John W. Fowlks, Fowlks. and procured the relinquishment tion of that provision of Sec. 2290 which my heirs and assigns, do promise and agree to of the latter's entry, intending himself to requires an entry to be for the exclusive give_to Robert Hawker a full warrantee deed to enter the whole N. W. upon cancellation use and benefit of the person making it. the north half of northwest quarter of Section 22, in Township 2 soutlı, Range 1 east, contain- of that entry, but upon the understanding I, therefore, reverse your decision in this ing 80 acres, not later than June, 1879. In con- that after he had procured title, he should respect and order cancellation of Fowlks' sideration whereof, I, Robert Hawker, my heirs convey the S. } to Fowlks, and retain the entry. and asssigns, agree to let the homestead entry N. f only. The cancellation was delayed on the above named quarter of Section be com- for some years, as stated, but as soon as which holds for cancellation Hawker's cash

I also affirm that part of your decision pleted and the patent to issue therefor. “Witness :

he learned of it in April, 1874, he went to entry of said N. }, under Sec. 2 of the act “James Hawker,

Fowlks for the purpose of completing the of June 15, 1880." This entry was allowed “John Fowlks.'

arrangement and making his entry, when in June, 1881, after initiation of the conThis paper seems to mean that Fowlks he ascertained that it had been entered by test, and was in violation of Practice Rule would convey to Hawker the N. of said John W. Fowlks.

53, which forbids further action by the N. W. # if Hawker would not contest It appears also that in 1876 a measure- local officers affecting the disposal of the Fowlks' entry on the N. W... It was ment was made by John W. Fowlks for land in contest, pending the contest, until given to Hawker at the date thereof, and the purpose of establishing the dividing so instructed by your office. This entry has been in his possession from that time line between the N. and the S. } of the was allowed without such instructions, and to the date of the hearing. Upon the day N. W. à, and that he drove stakes to indi- was, consequently, unauthorized. Nor of its execution, John Fowlks and John cate the same. He has also admitted to was it, in my opinion, within the provision W. Fowlks, at the request of the contest- others that the N. 1 belonged to Hawker, of the act of June 15, 1880. The second ant Hawker, went to the latter's house, and that he had given him (Hawker) a section authorizes one to whom the right for the purpose of arrangements relative paper securing it to him after he got his of the person making a homestead entry to said N. They were accompanied own title. He also negotiated with Haw- has been attempted to be transferred by also by Alfred, the brother of John W., ker for purchase from him of portions of a bona fide instrument in writing," to purbut who appears not to have been present the N. }, that he might add them to the chase the tract at the government price. when the paper was executed. They there S. of said N. W. ), and also permitted This means an executed or present transmet the contestant, Rose his wife, and Hawker to make improvements on said N. fer, and not a mere agreement to transfer James Hawker, his son. The paper was 7, subsequently to his own entry for the in futuro. Whether or not, therefore, the written by James Hawker, who testifies whole N. W. ), without objection. There paper in question was executed by Fowlks, that he left blanks in the body of the in- had also been conversations between the and a bona fide or valid instrument, being strument for the signatures of John W. parties relative to a release by Fowlks dated in 1874, and not necessarily to take Fowlks and Robert Hawker. The Haw- from his entry of said N. }, and they effect before June, 1879, it was not at the kers, father, son, and wife, testify that visited the land office to ascertain whether date of its execution a transfer or an atJohn W. Fowlks and Robert Hawker this could be done and Fowlks be permit- tempted transfer within the meaning of signed their names in the appropriated Ited to amend his entry by insertion of an- the act.

WILLIAM FRENCH (REVIEW). June 10, 1879. The affidavit and applica- lison to enter the tract. For the reasons Act of June 15, 1880.- The purchaser of the tion, however, bear date Nov. 1, 1878. stated your decision holding his entry for

unlawful homestead certificate in this case is Claimant swears that the difference as to cancellation is accordingly reversed. allowed to purchase the entered land under dates is due to the fact that the land was the act of June 15, 1880. covered by a prior entry that was not can

RAILROADS. SECRETARY TELLER to Commissioner McFar-celed until June 3, 1879. The act of SOUTHERN MINNESOTA RAILWAY EXTENSION land, October 1, 1883. March 3, 1879 is, in a legal point of view,

COMPANY VS. KUFNER. In the case of the additional homestead operative from its date, and is of itself Patent.Certification.- A patent is not necesentry made in the name of William French constructive notice to alí. Entries made sary for the purpose of vesting title in the for the W. } of the S. E. 4, and the S. W. of the N. E. ¢ of Sec. 17, Tp. 16 N., R. 80 acres; consequently this class of set

company ; but title vests by virtue of the subsequent thereto, were not restricted to

grant, and the act of certification of the land

to the State for the use of the company. i E., H. M., Humboldt, California, can- tlers are not, by law, beneficiaries of said SECRETARY TELLER to Commissioner Mc Farceled by the decision of this Department act. But this office construes the law, as land, October 22, 1883. August 30, 1883, a motion has been filed

applied to the settler, in an equitable I have considered the case of the Southon behalf of the present holder of the cer, spirit, especially this particular statute, ern Minnesota Railway Extension Co.us. tified right of said French, to have said and allows a few months to elapse for the Augustine Küfner, involving title to the entry reinstated and referred for confirm-promulgation thereof. Therefore, under N. W. of Sec. 17, Twp. 104, Range 24, ation to the Board of Equitable Adjudica- the circumstances, I am of opinion that Worthington, Minnesota, on appeal by tion.

the fact that the entry post-dates the said Company from your decision of March I am of the opinion that the motion

act, is no bar to an additional entry. | 31, 1883, permitting Küfner to make homeshould be denied, for the reason that the

stead entry of said tract. case does not come within the class where

The land described is within the tensubstantial compliance with the law can

TIMBER CULTURE.

mile or primary limits of the grant by the be shown. William French was a member of the

EUGENE Q. POWLISON.

act of July 4, 1866 (14 Stat., 87), making “Missouri Home Guard," and as such was

an additional grant of lands to said State Preferred Right. --Relinquishment.-Notice.-- In not entitled to the benefits of Sec. 2306 of

view of the facts presented, the timber culture to aid in the construction of railroads entry is allowed to stand.

therein. The grant was accepted by the the Revised Statutes. An additional

SECRETARY TELLER to Commissioner McFar- State February 25, 1867, at which time it homestead entry made by him was illegal land, Sept. 20, 1883.

became effective. at its inception, because the service upon I have considered the appeal of Eugene May 24, 1864, J. A. Hovey made homewhich the right to make such entry was Q. (not "0.") Powlison from your deci- stead entry 1773, of the tract in question, based was not in the army of the United sion of January 23, 1883, holding for can- which remained intact until March 27, States.

cellation his timber culture entry No. 6241 1872, when it was canceled. The motion is therefore overruled. The of the S. W. of Sec. 4, Twp. 142, Range The following facts appear from the second section of the act of June 15, 1880 53, Fargo district, Dakota Territory.

final homestead proofs tendered and sub(21 Stat. 237), provides that persons who have heretofore under any of the home-covered by timber culture entry No. 2957

It appears that the tract was formerly mitted with the record, viz.:

Küfner settled upon the land in October, stead laws entered lands properly subject in the name of one John E. Bergrem, which 1867, and since then has resided upon and to such entry, or persons to whom the one William P. Burdick contested and cultivated the same. His improvements right of those having so entered for home procured the cancellation of, but that by thereon are valued at $700. In June, 1872, steads may have been attempted to be

reason of the Register and Receiver hav- he applied to enter the land as a hometransferred by bona fide instrument in ing inadvertently notified one J. W. Burn- stead, and paid $18 for fees and commiswriting, may entitle themselves to said ham (who was merely a witness in the sions. The local oflicers informed him lands by paying the government price case), he had received no notice of the that they would send him a receipt as soon therefor, and in no case less than one dol- cancellation until April, 1882, when, upon as Ilovey's entry was canceled.

Some lar and twenty-five cents per acre, and the inquiring at the local office he was in- months after paying such fees, not receivamount heretofore paid the government formed thereof, and that Powlison had ing the receipt, he wrote to your office, and upon said lands shall be taken as part entered the tract November 17, 1881. in reply wa

informed that the land had payment of said price." The present holder of the right of Wil- be cancelled and he be allowed to enter the Whereupon Burdick asked that the entry been awarded to said company.

March 6, 1876, the tract was certified to liam French, upon showing his possession tract as a preferred claimant under the the State of Minnesota for the benefit of of said right by bona fide instrument in provisions of the 2d section of the act of the railroad above named. writing, will be entitled, under the provis- May 14, 1880 (21 Stat. 140).

You hold that the certification was erions of the foregoing law, to purchase said

Burdick having procured the cancella- roneous, because Hovey's entry excepted lands, and you will so inform his attorney, tion of Bergrem's entry, was unquestion- the land from the operation of the grant; together with the disposition of the motion ably entitled to notice of the same by and that since the land must be conveyed referred to herein.

virtue of the express provision therefor by patent it is still under the control of

contained in the said 2d section : provided, the Land Department; and direct that THOMAS E. SMITH.

of course, he had paid the “land office Küfner be allowed to make complete final Act of March 3, 1879-Additional Homestead En- fees,” which is presumable, for that is a homestead proofs.

try. Notwithstanding the original entry post, condition precedent to the operation of dates the act by three months, an additional

The case thus presents for my considerentry is allowed.

such provision, and it nowhere appears ation two important questions : COMMISSIONER MCFARLAND to Reg. and Rec., that he had not so paid. I would, there First. Was a patent necessary for the Huntsville, Ala., Oct. 19, 1883. (C. T. Y.) fore, affirm your decision, had Burdick purpose of vesting title, or did the title by

I am in receipt of yours of August 8, not filed a relinquishment of his rights in virtue of the grant and the act of certifi1883, transmitting for instructions ihe ap- the premises, which was done subsequently cation pass to the State for the use of said plication of Thos. E. Smith, to enter un- to your decision. But having done so, company? der Act March 3, 1879, the E. } S. W. the land is, ipso facto, open to settlement Second. The lands having been awarded of Sec 12, 12 S., 7 E.

and entry, and this, by virtue of the pro- to the company and certified to the State The records show his original entry, visons of the 1st section of the act cited, in 1876, should your office, upon the facts No. 9363, for the S. } N. W. 1, same de- without any further action on your part. disclosed by the record, now proceed to scription, to have been allowed three (3) No reason appearing to the contrary, I do make another adjudication and disposition months subsequent to the act, to wit: 'not see why it is not competent for Pow-'of the land ?

66

The language of the grant before cited tions of lands shall be patented as afore- granting the same;" but the power to disis that of a présent grant: That there be, said, until said roads are completed, when pose of them upon such conditions after and is hereby, granted to the State of the whole of the lands hereby granted being certified to the State was clearly Minnesota."

shall be patented to the State for the uses recognized by the act. The lands were to The general rule undoubtedly is that aforesaid, and none other: Provided, That be certified from time to time, whenever title to the public lands of the United if said roads are not completed within ten any of the roads were definitely located; States shall pass only by patent.

years from the acceptance of this grant, but there was no condition like that of Probably the most marked exception to the said lands hereby granted and not pat- first receiving patents imposed upon the that rule is that of a congressional grant ented shall revert to the United States." power of the State to convey after the in presenti.

I do not mean to be understood as ex- lands were so certified; and no such conIn Wilcox vs. Jackson (13 Pet., 516), pressing the opinion that the title would ditions can be imported into the statute. the court say:

* We think it unnecessary not, in any instance, pass by a Congress- So much of any act as was in conflict to go into a detailed examination of the ional grant in presenti, although the act with the act of July 13, was thereby revarious acts of Congress for the purpose might provide for the issuing of patents. pealed. When, therefore, that act provi. of showing what we consider to be true in Such a provision, which would have the ded for the well-recognized mode of conregard to the public lands, that, with the effect to place in the lands of the grantee veyance of railroad lauds by certification, exception of a few cases, nothing but a evidence by patent of title would not nec-it repealed the provision in the act of patent passes a perfect and consummate essarily be inconsistent with the intention July 4, to the effect that the Secretary title. One class of cases to be excepted of Congress to pass the title by the act should issue patents to the State for the is where an act of Congress grants land, itself.

granted lands. Since it was unnecessary as is sometimes done, in words of present On the 13th day of July, 1866, Congress that the lands should be both certified and grant."

passed a further "act relating to lands patented, the mode provided by the later When the language imports a present grantıd to the State of Minnesota to aid act was sufficient to convey the title to the grant it is well settled that the title passes in constructing railroads" (14 Stat., 97). State. by the act, and attaches to the grant, and Section ? of that act provides, “That all Prior to the act of March 3, 1865, (13 such title becomes complete and perfect lands heretofore granted to the Territory Stat., 526,) the power of disposal as to when precision and identity are given to and State of Minnesota to aid in the con- lands granted to Minnesota, as in other the particular tract by selection or loca- struction of railroads, shall be certified to States, was governed by the specific protion of the land. (Rutherford es. Greene's said State by the Secretary of the Interior. visions of March 3, 1857, (11 Stat., 195,) Heirs, 2 Wheaton, 195; Schulenberg vs. from time to time, whenever any of said and similar language in the various grantHarriman, 21 Wall, 44: Missouri etc. roads shall be definitely located, and shall ing acts. This was that, upon completion Railway Co. vs. Kansas, etc. Railway Co., be disposed of by said State in the man- of specific sections of road, a quantity of 97 U. S., 491.)

per and upon the conditions provided in land, within certain prescribed limits, Although the grant is a present one, it the particular act granting the same, as may be sold.” This was the law of the is undoubtedly competent for Congress to modified by the provisions of this act." railroad system of grants, and certificaput a limitation upon the title, and direct Section 5 provides, " That so much of tion was the uniform mode of identificaat what time and in what manner it should any act as conflicts with the provisions of tion. vest. this act is hereby repealed."

By the act of March 3, 1865, that sysIt becomes necessary therefore to ex- This act contains no provision relating tem as to Minnesota was changed, and the amine the acts relating to the grant in to the issuing of patents for the granted new method of disposal was declared to question for the purpose of ascertaining lands, but provides that the Secretary of be by the receipt of patents from the whether there are any provisions restrain- the Interior shall certify to the State the Secretary of the Interior; nothing whating the operation of the words of present lands granted. The former act contained ever being provided as to sale of lands by grant.

no provision for certifying the lands to the State. The act of July 4, 1866, was Section 4 of the act of July 4, 1866, pro- the State.

expressed in nearly identical terms as to vides, “That the lands hereby granted When it is remembered that the certifi- this disposal. shall be disposed of by said State for the cation of lands by the Secretary of the In- But this new enactment manifestly was purposes aforesaid only, and in manner fol- terior to the grantee has long been recog- no law for disposal by the State, and only lowing, namely: When the Governor of nized as a mode of conveyance, and that operated to complete the evidence of title said State shall certify to the Secretary of such certificates have been regarded and in the State, and identify the lands by the the Interior that any section of ten con- treated as a sufficient conveyance and issue of patent. It involved itself within secutive miles of said road is completed, transfer of title, (a fact which was well itself, and gave no direction whatever as in a good, substantial, and workmanlike known to Congress,) it can hardly be to the manner of disposal. manner, as a first-class railroad, then the doubted that it was the intention of that The act of July 13, 1866, on the contrary, Secretary of the Interior shall issue to the body to substitute that mode of transfer did provide for a power in the State, to be State patents for all the lands in alternate in place of conveyance by patent, as pro- exercised by the State, and not by the sections, or parts of sections, designated vided in the act of July 4.

Secretary of the Interior; and this power by odd numbers, situated within twenty In the case of the land grants to the was expressly recognized to take effect miles of the road so completed, and lying State of Minnesota for the benefit of rail- after definite location and identification of coterminous to said completed section of roads, both parties have for many years the lands, not by patent but by certificaten miles, and not exceeding one hundred treated the certification of the lands to the tion; and the language used, namely, “ the sections, for the benefit of the road having State as conveying the title; and acting quantity authorized to be sold,” indicates completed the ten consecutive miles as upon the belief that such act conveyed the that it was the identical customary mode aforesaid.

When the Governor title, the lands have been generally dis- recognized in the original acts of 1857, of said State shall certify that another posed of, and are now in the hands of inno- shorn and released from the restrictions of section of ten consecutive miles shall have cent purchasers.

the provisions of the act relating to patbeen completed as aforesaid, then the Sec- Section 3 of the act of July 13, before ents. In both provisos to section three retary of the Interior shall issue patents cited, clearly gave to the State the right the disposal is clearly designated as a sale to sai State in like manner for a like to dispose of the lands when certified to of lands—not the receipt of patents therenumber; and when certificates of the com- the State by the Secretary of the Interior. for. pletion of additional sections of ten con- They were indeed to be disposed of by And in section four the limitation is exsecutive miles of said roads are from time said state in the manner and upon the con- tended to a further restriction to the effect to time made as aforesaid, additional sec- 'ditions provided in the particular act that granted lands in place should not be so disposed of-that is, " sold"-until com- Judge Dillon, in construing the act of maintained, and lands covered by such entries pletion of the coterminous portions of the May 15, 1856 (11 Stat. 9) making a grant

held to be excepted from the grant. road.

to Iowa to aid in the construction of rail- SECRETARY TELLER to Commissioner Mc FarThe act of August 3, 1854 (10 Stat. 346 roads in that State, held that: “ The tract land, October 2, 1883.

(N. P. L.) -Sec. 2449 Revised Statutes), provided, in question was within the terms of the I have considered the case of Daniel "That in all cases where lands have been, act of 1856, and when it was selected and Hayes vs. Hollon Parker and the Northern or shall hereafter be, granted by any law the selection approved and certified by the Pacific Railroad Company, involving the of Congress to any one of the States or Commissioner of the General Land Ofice, S. E. , and the E. of the S. W. 1, of Territories, and where said law does not the title became perfect in the State.” Section 2, and the N. 1 of the N. E. 4, and convey the fee simple title of such lands, or The lands having been thus conveyed, the S. E. I of the N. E. I, of Section 11, require patents to be issued therefor, the all control of the Executive Department Tp. 7 N., R. 3 E., in the Walla Walla land lists of such lands which have been or over the title thereafter ceased. (Moore district, Washington, on appeal by Parker may hereafter be certified by the Commis- vs. Robbins, 6 Otto 530.)

from your decision of August 5, 1880, sioner of the General Land Office under Upon the second proposition presented holding his private cash entry No. 1480 of the seal of said office, either as originals, by this case, I deem it only necessary to said tracts for concellation. or copies of the originals or records, shall say that, it having been determined and The tracts are within the limits of the be regarded as conveying the fee simple adjudged by the Department, as long ago grant of July 2, 1864 (13 Stat. 365), to of all the lands embraced in such lists that as 1876, that the land in question passed said company. are of the character contemplated by such to the State by virtue of the grant, and it On August 13, 1870, said company filed act of Congress and intended to be granted having been so certified, the Department a map of general route, including within thereby."

cannot now proceed to make another ad- its limits the lands in question. Such was the general law applicable to judication and disposition of the land, The lands along that portion of this grants to States of the character of the even if the naked title did not pass by the general route lying west of the Columbia grant under consideration, when, July 13, act of certification.

River were, on September 20, 1870, or1866, Congress amended the act relating It is rot claimed that there was any dered to be withdrawn; but as to lands to lands granted to the State of Minne- mistake or fraud in certifying said land to lying east of that river, no order was sota, in the manner before stated ; leaving the State. Such certification was in ac- made until November 21, 1870. Notice of out of the amendment the provision for cordance with the decisions and rulings the order made at that date was received patents, and providing only for certifying then prevailing in your office and this De- at the local office December 8th, following. the lands. When we apply to such amend-partment. Cases so adjudicated cannot The tracts now in contention lie east of ment, as we must, the general law existing be re-opened and another disposition be said river. Until the receipt of the notice at the time, applicable thereto, we find that made of the lands because a different rule (December 8, 1870), the local officers consuch general law and the amendment are may be found to prevail at a subsequent tinued to dispose of the lands in both odd in complete harmony, and taken together time. (Thomas vs. St. Joe and Denver and even sections situate east of the river. they make the title perfect by the mode of City Railroad Co., 4 C. L. O., 119; Per- Entry of Parker aforesaid, was made certifying the lands.

kins vs. Central Pacific Railroad Co., 9 ib. Oct. 26,1870, at the rate of $1.25 per acre. As bearing upon some of the questions 201.)

Your office inadvertently erred in finddiscussed, I refer to a few authorities in the The lands having been certified to the ing that Parker's entry was made subseFederal courts, by which it will, I think, State, such certification was evidence that quently to the time when notice of the be seen that the view I have taken of the the State was entitled to patents, if pat- withdrawal was received at the local office. case under consideration is sustained. In ents were necessary in order to convey the The error arose from overlooking the fact Hedrick vs. Hughes there had been a se- title. In such case it would clearly be the that the withdrawal received at the local lection of land for the State of Missouri, duty of this Department to issue the pat- oflice October 17, 1870, was confined to in place of part of Section sixteen, which ents, and when issued they would by rela- lands lying west of the Columbia River. had been disposed of. The selection had tion take effect as of the date of the certi- Many entries were made between the been entered upon the books of the Reg- fication, and cut off all intervening claims. time of filing said map (August 13, 1870,) ister of the Land Ofice. It was held that (Shepley vs. Cowan, 1 Otto 330.) “The and the time of the receipt of the order such selection and entry vested the title right to a patent once vested is treated by of withdrawal at the local offices, the valof the substituted land in the State. Upon the government, when dealing with the idity of which is depending generally upon this point the court said: “ No patent was public lands, as eqivalent to a patent is the result of the present case. necessary for the substituted lots, any sued. When, in fact, the patent does issue, Under date of February 16, 1872, said more than for the 16th Section itself, had it relates back to the inception of the right company transmitted to this Department that been undisposed of. The things to be of the patentee, so far as it may be neces- " a map of the preliminary line of said done in order to vest title in the State sary to cut off intervening claimants.” road of this company from the Red River were certain acts of the Register and Re- (Stark vs. Starrs, 6 Wall. 418.) For the of the North to the Columbia, at the ceiver. The essential thing was the selec- reasons stated, I reverse your decision per- Walla River," and requested “that the tion of the land." (15 Wall. 129.) mitting a homestead entry to be made for lands pertaining to said route may be

The act of February 17, 1815 (3 Stat. the land in question; and if the entry has withdrawn from settlement and sale." 211), for the relief of certain inhabitants been made under your decision, direct it This map was transmitted to your office of Missouri, who had suffered by earth- to be canceled.

by Secretary Delano, February 21, same quakes, provided that the person or per

year, "for appropriate action," and subsesons whose lands had been materially HAYES vs. PARKER AND TIE NORTHERN quently a withdrawal of lands based injured by earthquakes might make a

thereon was ordered.

PACIFIC RAILROAD COMPANY. location on the public lands of a like

The preliminary line presented by this amount not exceeding 160 acres. Not. There can be but one legislative withdrawal un- map shows a great departure from the withstanding the act provided for the is

der a map of general route.
Where, therefore, several trial lines treated as

line of 1870. The point where the line in suing of patents on certificates, it was held that the title became complete when the

such by the Company, have been made before the last map enters the eastern boundary

the general route is finally fixed and deter- of the territory is about one hundred and location was made, and a plat and certifi- mined, withdrawals made under such trial eight.(108) miles north of that at which cate of survey of the land selected was lines will be regarded as executive with the former line entered. The lines westfiled and recorded in the Recorder's oftice. Entries made in good faith upon odd sections

drawals.

ward from such eastern boundary, how(Lessieur vs. Price, 12 How. 59.)

before notice of withdrawal under such trial ever, converge, so that at the Columbia In Drury vs. Hollenbeck, 8th Circuit, lines was received at the local office, will be river they are substantially the same.

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