Abbildungen der Seite
PDF
EPUB

1883.]

COPP'S LAND-OWNER.

chased his interest in the tract and the improvements thereon, consisting of an old and nearly worthless house, the eight or nine improved acres, and the fencing material around the same, for the sum of fifty dollars; and on the 17th and 18th moved the house materials to another part of the land, and rebuilt it, except the battening of the cracks, the want of which rendered it unfit for habitation. On January 19th, Patrick Whyte relinquished his entry, and the same was canceled on that day. On March 1st she took some household effects to the house, but did not commence residence therein until March 29th, since which time she has continuously occupied it. From January 18th to March 1st she does not appear to have been upon the land, or to have performed any act of settlement thereon, but has since the latter date broken two acres and cultivated a small garden.

This was five weeks subsequent to Probst's 1880, and directed a hearing to determine
entry. I think the tract was free from the rights of the parties as in cases of
appropriation or any pre-emptive right on simultaneous applications. The testimony
Whatever right he
the part of Whyte at the date of Probst's at this hearing shows that Spellman had
entry, and the latter must be recognized. abandoned the tracts and removed from
I reverse your decision, and award the the State of Kansas.
feited, leaving only for consideration the
tract to Probst, as recommended by the formerly had to it became thereby for-
right of Townsend, as against the govern-
local officers.
ment. Townsend died September 20, 1880,
having made certain improvements on the
land with intention of moving thereon and
making it his home, which by reason of
long continued ill-health he was unable to

L. A. JENNINGS.

Married Woman-Proceedings for Husband's
Benefit.-A homestead entry by a married
woman is illegal. In this case the wife may
relinquish her entry, and the husband may
enter the land, and in making final proof, his
right will relate back to date of original set-
tlement.

COMMISSIONER MCFARLAND to L. A. Jennings,
Live Oak, Florida, Oct. 12, 1883. (H. F. S.)
There is no evidence on the records of
this office showing that you ever made an
entry of the land as alleged; but the land
in question appears in the name of Rachel
J. Jennings, who, you assert, is your wife,
and that while you were absent from
home she, becoming alarmed at not hear-
ing from your entry of the land, made ap-
plication in her own name for the same
tract, and made the entry now on record.
The entry made by your wife is clearly
illegal, as the law makes no provision for
the entry of lands under the homestead act
by a married woman, and therefore will
necessarily have to be canceled.

It also appears that a county road runs across one forty-acre tract of the land in dispute, and that since 1853 the father of Probst has occupied and cultivated from twenty-five to forty acres of the tract south of the road (the improvements of Whyte being on the north side) which were enclosed with his adjoining land, and that he gave to his son, the contestant, all his right to and interest in the same a short time prior to the latter's entry, and In view of the fact, however, that the that the son entered upon the tract, built a house and other out-buildings, and has entry made by Mrs. Jennings was for the continually since resided thereon, and has purpose of protecting your home and imfrom fifteen to twenty acres under cultiva-provements, and that her interests and tion. His improvements are valued at about $300.

Prior to these acts of the parties, the former occupants appear to have respected each other's enclosures.

There are equities in favor of both parties; but their rights must be determined under the law.

It is well settled that a homestead entry is a segregation and appropriation of the public land, which ceases to be at the disposal of the government so long as the entry subsists, and that a pre-emption right can not be initiated to such tract until some act of settlement subsequent to cancellation of that entry. During its continuance an adverse pre-emptive right (Dahl vs. Crystal, Copp, can not attach. Sept., 1874; Op. of Atty. Genl., Copp, August, 1881.)

do.

The question presented is, whether or der Sec. 2291, which provides for a certifinot his heirs are entitled to any right uncate of entry and for patent to "the person making such entry; or if he be dead, his widow; or in case of her death, his heirs or devisee."

The record shows that Townsend filed a timber culture application for the tracts August 28, 1878, and that Spellman filed a pre-emption declaratory statement November 23d following, alleging settlement the same month. Townsend's application was rejected by your office February 12, 1879, and on April 12, 1879, Spellman made homestead entry for the tracts. On tracts under the homestead laws, but his April 15th, Townsend applied to enter the application was rejected by reason of Spellman's prior entry. The local officers then notified Spellman that his entry had been removed from the records because yours are identical, I have decided to al- Townsend's adverse claim had attached low you, if properly qualified, to make an under his timber culture application prior entry of the land in question on filing in to his (Spellman's) settlement, and that the District Office, at Gainesville, the re- they would consider the claims of the two linquishmennt of Mrs. Jennings for the as made simultaneously. This accords same, and on making final proof you will with the views announced by my predebe entitled, under the Act of May 14, 1880, cessor in his decision of March 18, 1880, to credit for the period of settlement and wherein he held, among other things, that cultivation made before the entry was Townsend's application to enter the tract made; or in other words, your right may under the homestead law was equivalent relate back to the original date of com- to actual entry as respected his rights. mencing residence and cultivation upon Concurring in this opinion, and there the land.

TOWNSEND'S HEIRS VS. SPELLMAN.
Entry by Heirs-Application Equivalent to En-
try. Where an application is made by a party
to enter land as a homestead, and the party
dies before the entry is perfected, his heirs
may make the desired entry.
SECRETARY TELLER to Commissioner Me Far-
land, October 16, 1883.

The only act of settlement performed. I have considered the case of A. C. by Whyte prior to Probst's entry on February 21st was on January 17th and 18th, Townsend vs. Hiram Spellman, involving but at this date Patrick Whyte's home- the S. E. of the S. W. 4, the W. of S. W. stead entry was in force, and the land was and the S. W. 4 of S. E. of Sec. 24, under his appropriation. It therefore Tp. 1, R. 27, Kirwin, Kansas, on appeal 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 cellation of Patrick Whyte's entry and 2, On appeal from your decision of July prior to Probst's entry, (to wit, between January 19th and February 21st,) she 21, 1879, in this case, holding that Spellwould have been found the prior settler. man had the superior right and should be But she did nothing during this time, and permitted to enter the tracts under his until March 29th, according to her homestead entry, my predecessor, Secreown testimony, did she go upon the land tary Schurz, reviewing the law and the for the purpose of making it her home. facts, vacated your decision, March 18,

1881.

being no other party in interest, and Townsend having since died, his heirs become entitled to perfect the entry he initiated.

Your decision that, as Townsend died before actual entry of the tracts, his heirs have no rights, notwithstanding his application to enter them, is reversed; and Spellman having removed from the State and no longer prosecuting his claim, his entry will be canceled, and the application of the heirs of Townsend be allowed.

[blocks in formation]

It appears that John Fowlks, father of the contestee, made homestead entry of said N. W. 4, May 8, 1869, that the entry was canceled for relinquishment by your letter of July 20, 1871, but the cancellation was not noted on the local records until reception of your subsequent letter of November 23, 1873; and that John W. Fowlks made homestead entry of the tract February 27, 1874.

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. 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., 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 his name, and did not sign the paper, but that J. W. Fowlks executed said paper; that John Fowlks only signed it, and they that it was in violation of Sec. 2290 R. S., claim that the letter "W" was interlined which requires a homestead entry to be afterwards by some person to them un- made for the party's exclusive use and known, and that that name was not in- benefit, and not directly or indirectly for tended to mean John W. Fowlks, but John the use and benefit of any other person, Fowlks only, thus making a contract be- and recommended cancellation of his entween John Fowlks and Robert Hawker, try. Your decision holds that Fowlks did and excluding any agreement on the part not execute said paper; that also if he did. 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. 4 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 Fowlks' entry intact. Fowlks had never been in possession thereof, but had agreed to convey the tract to him. A hearing was ordered thereon, and held in April following.

It further appears that in June, 1881, the local officers allowed Hawker to make cash entry for the N. of the N. W., under the second section of the act of June 15, 1880.

Hawkers's possession of said N. is not seriously questioned, but the issue is chiefly confined to the alleged contract, which is in the following words:

The testimony further shows that John W. Fowlks is an illiterate person, that his father signed his name to his original homestead paper (but at his request and in his presence), and has generally transacted for him his business matters.

Whether or not J. W. Fowlks actually signed this paper is not, in my opinion, material under the statute. If he was present at the time of its execution, knowing the nature of the business for which This conflict of testimony requires elu- the parties had met, and permitted his cidation from collateral facts. It appears father to sign his (J. W. Fowlks') name, that Robert Hawker had, at the date of and to act as his agent, the agreement the hearing, been in possession of the N. would be equally binding upon him as if of said N. W. from about October, he had signed it; and I cannot doubt, 1869; that he had thereon two houses, a under all the facts, that it was the instable, and other out-houses, 200 rods of tent of Fowlks to recognize the claim ditching, and about 30 acres under culti- of Hawker to said N., and to convey vation; that he bought these improve-it to him upon acquisition of his own ments or a portion of them from John title to the N. W. 4. This was in violaFowlks. and procured the relinquishment tion of that provision of Sec. 2290 which of the latter's entry, intending himself to requires an entry to be for the exclusive 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 south, 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. only. The cancellation was delayed on the above named quarter of Section be com- for some years, as stated, but as soon as pleted and the patent to issue therefor. "Witness: he learned of it in April, 1874, he went to Fowlks for the purpose of completing the arrangement and making his entry, when he ascertained that it had been entered by John W. Fowlks.

"BIG COTTONWOOD, Salt Lake Co., "April 7, 1874. "This is to certify that I, John W. Fowlks, my heirs and assigns, do promise and agree to give to Robert Hawker a full warrantee deed to

"James Hawker,

"John Fowlks."

which holds for cancellation Hawker's cash I also affirm that part of your decision entry of said N., under Sec. 2 of the act of June 15, 1880. This entry was allowed in June, 1881, after initiation of the conThis paper seems to mean that Fowlks test, and was in violation of Practice Rule would convey to Hawker the N. of said 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. 4, 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. 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, 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 ted to amend his entry by insertion of an- the act.

WILLIAM FRENCH (REVIEW).

Act of June 15, 1880.-The purchaser of the unlawful homestead certificate in this case is allowed to purchase the entered land under the act of June 15, 1880.

SECRETARY TELLER to Commissioner McFarland, October 1, 1883.

In the case of the additional homestead

entry made in the name of William French for the W. of the S. E. 4, and the S. W. of the N. E. of Sec. 17, Tp. 16 N., R. i E., H. M., Humboldt, California, canceled by the decision of this Department August 30, 1883, a motion has been filed on behalf of the present holder of the certified right of said French, to have said entry reinstated and referred for confirm

ation to the Board of Equitable Adjudica

tion.

I am of the opinion that the motion should be denied, for the reason that the case does not come within the class where substantial compliance with the law can be shown.

William French was a member of the "Missouri Home Guard," and as such was not entitled to the benefits of Sec. 2306 of the Revised Statutes. An additional homestead entry made by him was illegal at its inception, because the service upon which the right to make such entry was based was not in the army of the United

States.

RAILROADS.

COMPANY VS. KUFNER. Patent.-Certification.-A patent is not necessary for the purpose of vesting title in the company; but title vests by virtue of the grant, and the act of certification of the land to the State for the use of the company.

June 10, 1879. The affidavit and applica- lison to enter the tract. For the reasons
tion, however, bear date Nov. 1, 1878. stated your decision holding his entry for
Claimant swears that the difference as to cancellation is accordingly reversed.
dates is due to the fact that the land was
covered by a prior entry that was not can-
celed until June 3, 1879. The act of SOUTHERN MINNESOTA RAILWAY EXTENSION
March 3, 1879 is, in a legal point of view,
constructive notice to all. Entries made
operative from its date, and is of itself
subsequent thereto, were not restricted to
80 acres; consequently this class of set-
tlers are not, by law, beneficiaries of said SECRETARY TELLER to Commissioner McFar-
act. But this office construes the law, as
applied to the settler, in an equitable
spirit, especially this particular statute,
and allows a few months to elapse for the
promulgation thereof. Therefore, under
the circumstances, I am of opinion that
the fact that the entry post-dates the
act, is no bar to an additional entry.

TIMBER CULTURE.

EUGENE Q. POWLISON.
Preferred Right.-Relinquishment.-Notice.- In
view of the facts presented, the timber culture
entry is allowed to stand.
SECRETARY TELLER to Commissioner McFar-
land, Sept. 20, 1883.

land, October 22, 1883.

I have considered the case of the Southern Minnesota Railway Extension Co. vs. Augustine Küfner, involving title to the N. W. of Sec. 17, Twp. 104, Range 24, Worthington, Minnesota, on appeal by said Company from your decision of March 31, 1883, permitting Küfner to make homestead entry of said tract.

The land described is within the tenmile or primary limits of the grant by the act of July 4, 1866 (14 Stat., 87), making an additional grant of lands to said State to aid in the construction of railroads therein. The grant was accepted by the State February 25, 1867, at which time it became effective.

May 24, 1864, J. A. Hovey made homestead entry 1773, of the tract in question, which remained intact until March 27, 1872, when it was canceled.

The following facts appear from the final homestead proofs tendered and submitted with the record, viz.:

I have considered the appeal of Eugene Q. (not "O.") Powlison from your decision of January 23, 1883, holding for cancellation his timber culture entry No. 6241 The motion is therefore overruled. The of the S. W. of Sec. 4, Twp. 142, Range second section of the act of June 15, 1880 53, Fargo district, Dakota Territory. (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 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 officers 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 Hovey's entry was canceled. 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 in reply was informed that the land had payment of said price." been awarded to said company.

The present holder of the right of William French, upon showing his possession of said right by bona fide instrument in writing, will be entitled, under the provisions of the foregoing law, to purchase said lands, and you will so inform his attorney, together with the disposition of the motion referred to herein.

THOMAS E. SMITH.

Act of March 3, 1879-Additional Homestead Entry.-Notwithstanding the original entry postdates the act by three months, an additional

entry is allowed. COMMISSIONER MCFARLAND to Reg. and Rec., Huntsville, Ala., Oct. 19, 1883. (C. T. Y.) I am in receipt of yours of August 8, 1883, transmitting for instructions the application of Thos. E. Smith, to enter under Act March 3, 1879, the E. S. W. of Sec 12, 12 S., 7 E.

The records show his original entry, No. 9363, for the S. N. W., same description, to have been allowed three (3) months subsequent to the act, to wit:

entered the tract November 17, 1881.
Whereupon Burdick asked that the entry
be cancelled and he be allowed to enter the
tract as a preferred claimant under the
provisions of the 2d section of the act of
May 14, 1880 (21 Stat. 140).

Some

March 6, 1876, the tract was certified to the State of Minnesota for the benefit of the railroad above named.

The case thus presents for my consideration two important questions:

You hold that the certification was erBurdick having procured the cancella- roneous, because Hovey's entry excepted tion of Bergrem's entry, was unquestion- the land from the operation of the grant, ably entitled to notice of the same by and that since the land must be conveyed 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 of course, he had paid the "land office Küfner be allowed to make complete final fees," which is presumable, for that is a homestead proofs. condition precedent to the operation of such provision, and it nowhere appears that he had not so paid. I would, therefore, affirm your decision, had Burdick not filed a relinquishment of his rights in the premises, which was done subsequently to your decision. But having done so, the land is, ipso facto, open to settlement and entry, and this, by virtue of the provisons of the 1st section of the act cited, without any further action on your part. No reason appearing to the contrary, I do not see why it is not competent for Pow

First. Was a patent necessary for the purpose of vesting title, or did the title by virtue of the grant and the act of certification pass to the State for the use of said company?

Second. The lands having been awarded to the company and certified to the State in 1876, should your office, upon the facts disclosed by the record, now proceed to make another adjudication and disposition of the land?

The language of the grant before cited is that of a present grant: "That there be, and is hereby, granted to the State of Minnesota."

The general rule undoubtedly is that title to the public lands of the United States shall pass only by patent. Probably the most marked exception to that rule is that of a congressional grant in presenti.

In Wilcox vs. Jackson (13 Pet., 516), the court say: We think it unnecessary to go into a detailed examination of the various acts of Congress for the purpose of showing what we consider to be true in regard to the public lands, that, with the exception of a few cases, nothing but a patent passes a perfect and consummate title. One class of cases to be excepted is where an act of Congress grants land, as is sometimes done, in words of present grant."

tions of lands shall be patented as afore- granting the same;" but the power to dis-
said, until said roads are completed, when pose of them upon such conditions after
the whole of the lands hereby granted being certified to the State was clearly
shall be patented to the State for the uses recognized by the act. The lands were to
aforesaid, and none other: Provided, That be certified from time to time, whenever
if said roads are not completed within ten any of the roads were definitely located;
years from the acceptance of this grant, but there was no condition like that of
the said lands hereby granted and not pat- first receiving patents imposed upon the
ented shall revert to the United States." power of the State to convey after the
I do not mean to be understood as ex-lands were so certified; and no such con-
pressing the opinion that the title would ditions can be imported into the statute.
not, in any instance, pass by a Congress- So much of any act as was in conflict
ional grant in presenti, although the act with the act of July 13, was thereby re-
might provide for the issuing of patents. pealed. When, therefore, that act provi-
Such a provision, which would have the ded for the well-recognized mode of con-
effect to place in the hands of the grantee veyance of railroad lands by certification,
evidence by patent of title would not nec-it repealed the provision in the act of
essarily be inconsistent with the intention July 4, to the effect that the Secretary
of Congress to pass the title by the act should issue patents to the State for the
itself.
granted lands. Since it was unnecessary
that the lands should be both certified and
patented, the mode provided by the later
act was sufficient to convey the title to the
State.

On the 13th day of July, 1866, Congress passed a further "act relating to lands When the language imports a present granted to the State of Minnesota to aid grant it is well settled that the title passes in constructing railroads" (14 Stat., 97). by the act, and attaches to the grant, and Section 3 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 rs. 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 shalling 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.) ner and upon the conditions provided in land, within certain prescribed limits, the particular act granting the same, as" may be sold." This was the law of the modified by the provisions of this act. railroad system of grants, and certificaSection 5 provides, "That so much of tion was the uniform mode of identificaany act as conflicts with the provisions of tion. this act is hereby repealed."

Although the grant is a present one, it is undoubtedly competent for Congress to put a limitation upon the title, and direct at what time and in what manner it should

vest.

It becomes necessary therefore to examine the acts relating to the grant in question for the purpose of ascertaining whether there are any provisions restraining the operation of the words of present grant.

This act contains no provision relating to the issuing of patents for the granted lands, but provides that the Secretary of the Interior shall certify to the State the lands granted. The former act contained no provision for certifying the lands to the State.

body to substitute that mode of transfer
in place of conveyance by patent, as pro-
vided in the act of July 4.

Section 4 of the act of July 4, 1866, provides, "That the lands hereby granted When it is remembered that the certifishall be disposed of by said State for the cation of lands by the Secretary of the Inpurposes aforesaid only, and in manner fol- terior to the grantee has long been recoglowing, namely: When the Governor of nized as a mode of conveyance, and that said State shall certify to the Secretary of such certificates have been regarded and the Interior that any section of ten con- treated as a sufficient conveyance and secutive miles of said road is completed, transfer of title, (a fact which was well in a good, substantial, and workmanlike known to Congress,) it can hardly be manner, as a first-class railroad, then the doubted that it was the intention of that Secretary of the Interior shall issue to the State patents for all the lands in alternate sections, or parts of sections, designated by odd numbers, situated within twenty miles of the road so completed, and lying coterminous to said completed section of ten miles, and not exceeding one hundred sections, for the benefit of the road having completed the ten consecutive miles as aforesaid. * ** When the Governor of said State shall certify that another section of ten consecutive miles shall have been completed as aforesaid, then the Sec- Section 3 of the act of July 13, before retary of the Interior shall issue patents cited, clearly gave to the State the right to sai State in like manner for a like to dispose of the lands when certified to number; and when certificates of the com- the State by the Secretary of the Interior. pletion of additional sections of ten con- They were indeed to be "disposed of by secutive miles of said roads are from time said state in the manner and upon the conto time made as aforesaid, additional sec- 'ditions provided in the particular act

In the case of the land grants to the State of Minnesota for the benefit of railroads, both parties have for many years treated the certification of the lands to the State as conveying the title; and acting upon the belief that such act conveyed the title, the lands have been generally disposed of, and are now in the hands of innocent purchasers.

By the act of March 3, 1865, that system as to Minnesota was changed, and the new method of disposal was declared to be by the receipt of patents from the Secretary of the Interior; nothing whatever being provided as to sale of lands by the State. The act of July 4, 1866, was expressed in nearly identical terms as to this disposal.

But this new enactment manifestly was no law for disposal by the State, and only operated to complete the evidence of title in the State, and identify the lands by the issue of patent. It involved itself within itself, and gave no direction whatever as to the manner of disposal.

The act of July 13, 1866, on the contrary, did provide for a power in the State, to be exercised by the State, and not by the Secretary of the Interior; and this power was expressly recognized to take effect after definite location and identification of the lands, not by patent but by certification; and the language used, namely, "the quantity authorized to be sold," indicates that it was the identical customary mode recognized in the original acts of 1857, shorn and released from the restrictions of the provisions of the act relating to patents. In both provisos to section three the disposal is clearly designated as a sale of lands-not the receipt of patents therefor.

And in section four the limitation is extended to a further restriction to the effect that granted lands in place should not be

so disposed of that is, "sold"-until completion of the coterminous portions of the road.

The act of August 3, 1854 (10 Stat. 346 -Sec. 2449 Revised Statutes), provided, "That in all cases where lands have been, or shall hereafter be, granted by any law of Congress to any one of the States or Territories, and where said law does not convey the fee simple title of such lands, or require patents to be issued therefor, the lists of such lands which have been or may hereafter be certified by the Commissioner of the General Land Office under the seal of said office, either as originals, or copies of the originals or records, shall be regarded as conveying the fee simple of all the lands embraced in such lists that are of the character contemplated by such act of Congress and intended to be granted thereby."

maintained, and lands covered by such entries held to be excepted from the grant. SECRETARY TELLER to Commissioner Mc Farland, October 2, 1883. (N. P. L.)

Judge Dillon, in construing the act of
May 15, 1856 (11 Stat. 9) making a grant
to Iowa to aid in the construction of rail-
roads in that State, held that: "The tract
in question was within the terms of the I have considered the case of Daniel
act of 1856, and when it was selected and Hayes vs. Hollon Parker and the Northern
the selection approved and certified by the Pacific Railroad Company, involving the
Commissioner of the General Land Office, S. E., and the E. of the S. W., of
the title became perfect in the State." Section 2, and the N. of the N. E. 4, and
The lands having been thus conveyed, the S. E. of the N. E. 4, of Section 11,
all control of the Executive Department Tp. 7 N., R. 3 E., in the Walla Walla land
over the title thereafter ceased. (Moore district, Washington, on appeal by Parker
vs. Robbins, 6 Otto 530.).
from your decision of August 5, 1880,
holding his private cash entry No. 1480 of
said tracts for concellation.

Upon the second proposition presented by this case, I deem it only necessary to say that, it having been determined and adjudged by the Department, as long ago as 1876, that the land in question passed to the State by virtue of the grant, and it having been so certified, the Department cannot now proceed to make another adjudication and disposition of the land, even if the naked title did not pass by the act of certification.

Such was the general law applicable to grants to States of the character of the grant under consideration, when, July 13, 1866, Congress amended the act relating It is rot claimed that there was any to lands granted to the State of Minne- mistake or fraud in certifying said land to sota, in the manner before stated; leaving the State. Such certification was in acout of the amendment the provision for cordance with the decisions and rulings patents, and providing only for certifying then prevailing in your office and this Dethe lands. When we apply to such amend- partment. Cases so adjudicated cannot ment, as we must, the general law existing be re-opened and another disposition be at the time, applicable thereto, we find that made of the lands because a different rule such general law and the amendment are may be found to prevail at a subsequent in complete harmony, and taken together time. (Thomas vs. St. Joe and Denver they make the title perfect by the mode of City Railroad Co., 4 C. L. O., 119; Percertifying the lands. kins vs. Central Pacific Railroad Co., 9 ib. 201.)

As bearing upon some of the questions discussed, I refer to a few authorities in the The lands having been certified to the Federal courts, by which it will, I think, State, such certification was evidence that be seen that the view I have taken of the the State was entitled to patents, if patcase under consideration is sustained. In ents were necessary in order to convey the Hedrick vs. Hughes there had been a se- title. In such case it would clearly be the lection of land for the State of Missouri, duty of this Department to issue the patin place of part of Section sixteen, which ents, and when issued they would by relahad been disposed of. The selection had tion take effect as of the date of the certibeen entered upon the books of the Reg-fication, and cut off all intervening claims. ister of the Land Oflice. It was held that such selection and entry vested the title of the substituted land in the State. Upon this point the court said: "No patent was necessary for the substituted lots, any more than for the 16th Section itself, had that been undisposed of. The things to be done in order to vest title in the State were certain acts of the Register and Receiver. The essential thing was the selection of the land." (15 Wall. 129.)

The act of February 17, 1815 (3 Stat. 211), for the relief of certain inhabitants of Missouri, who had suffered by earthquakes, provided that the person or persons whose lands had been materially injured by earthquakes might make a location on the public lands of a like amount not exceeding 160 acres. Notwithstanding the act provided for the issuing of patents on certificates, it was held that the title became complete when the location was made, and a plat and certificate of survey of the land selected was filed and recorded in the Recorder's office. (Lessieur vs. Price, 12 How. 59.)

In Drury vs. Hollenbeck, 8th Circuit,

The tracts are within the limits of the grant of July 2, 1864 (13 Stat. 365), to said company.

On August 13, 1870, said company filed a map of general route, including within its limits the lands in question.

The lands along that portion of this general route lying west of the Columbia River were, on September 20, 1870, ordered to be withdrawn; but as to lands lying east of that river, no order was made until November 21, 1870. Notice of the order made at that date was received at the local office December 8th, following. The tracts now in contention lie east of said river. Until the receipt of the notice (December 8, 1870), the local officers continned to dispose of the lands in both odd and even sections situate east of the river.

Entry of Parker aforesaid, was made Oct. 26, 1870, at the rate of $1.25 per acre.

Your office inadvertently erred in finding that Parker's entry was made subsequently to the time when notice of the withdrawal was received at the local office. The error arose from overlooking the fact that the withdrawal received at the local oflice October 17, 1870, was confined to lands lying west of the Columbia River.

Many entries were made between the time of filing said map (August 13, 1870,) and the time of the receipt of the order of withdrawal at the local offices, the validity of which is depending generally upon the result of the present case.

(Shepley vs. Cowan, 1 Otto 330.) "The
right to a patent once vested is treated by
the government, when dealing with the
public lands, as eqivalent to a patent is
sued. When, in fact, the patent does issue, Under date of February 16, 1872, said
it relates back to the inception of the right company transmitted to this Department
of the patentee, so far as it may be neces-"a map of the preliminary line of said
sary to cut off intervening claimants." road of this company from the Red River
(Stark vs. Starrs, 6 Wall. 418.) For the of the North to the Columbia, at the
reasons stated, I reverse your decision per- Walla River," and requested "that the
mitting a homestead entry to be made for
the land in question; and if the entry has
been made under your decision, direct it
to be canceled.

lands pertaining to said route may be withdrawn from settlement and sale." This map was transmitted to your office by Secretary Delano, February 21, same year, "for appropriate action," and subseHAYES VS. PARKER AND THE NORTHERN quently a withdrawal of lands based

PACIFIC RAILROAD COMPANY.

There can be but one legislative withdrawal un-
der a map of general route.
Where, therefore, several trial lines treated as
such by the Company, have been made before
the general route is finally fixed and deter-
mined, withdrawals made under such trial
lines will be regarded as executive with-
Entries made in good faith upon odd sections
drawals.
before notice of withdrawal under such trial
lines was received at the local office, will be

thereon was ordered.

The preliminary line presented by this map shows a great departure from the line of 1870. The point where the line in the last map enters the eastern boundary of the territory is about one hundred and eight (108) miles north of that at which the former line entered. The lines westward from such eastern boundary, however, converge, so that at the Columbia river they are substantially the same.

« ZurückWeiter »