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have placed their acquisition within the reach of all enterprising and industrious persons, by the liberal terms it has established for the sale of the same.
The public lands are sold by legal subdivisions, and may be bought in tracts of 40, 80, 160, 320 or 640 acres each, or in as large bodies as can be found vacant, at $1.25 per acre, payable in specie. The general law requires the price to be paid in cash at the time of the sale; but by the operation of a pre-emption law, enacted in 1841, actual settlers on the public lands, (provided they take 160 acres,) are allowed a credit of twelve months, and in some cases a longer period.
The public lands are first surveyed into townships of six miles square ; these townships are subdivided into thirty-six sections, of 640 acres each;
judge or to confirm the title to the land to the true owner.-Irvine v. Marshall, 20 Howard, 633.
Where a lot of land offered at auction at a public sale of land was struck off to A., who advanced the money, and took a receipt therefor, and B. on the same day offered evidence to prove that he nodded to the auctioneer, and that his nod was equivalent to a bid for said land above that of A., and that thereupon the land officers put up the land again on a subsequent day, and struck off the same to C. who conveyed it to B., who disputes A.'s title : Held, that if B. intended his nod at the first sale to be a bid above A., he should have promptly disclosed it at the time, and invoked the land officers to remedy the inobservance or neglect of the auctioneer; and that, as this was not done, the patent must issue to A., to whom it was struck off at the first sale.---(Opinion of Attorney-General, April 10, 1839, vol. 3, p. 448.)
The great fundamental principle of our land sales is, that private entries shall never be permitted until after proclamation is made that the lands are in market. (Opinion, March 29, 1843, vol. 4, p. 167.)
The several acts of Congress relating to the saline and mineral lands confer a general authority upon the President to lease the lead mines.--(Opinion, Oct. 14, 1842 , vol. 4, p. 93.)
The President has unrestricted power to lease the lead mines, on such conditions as he may think proper, for any term not exceeding three years, providing the leases be not inconsistent with existing laws.---(Opinion, Jan. 1823, vol. 1, p. 593.)
There is no material difference between the two acts concerning the lead mines, only that leases under the one are limited to three, and under the other to five years —(Opinion, April 3, 1835, vol. 2, p. 708.)
The powers to lease the mines necessarily includes the power to collect rents, and to take all proper measures to effect that object.--16.
Proceedings may be taken under the 1st section of the Act of 2d of March, 1831, against any person who shall have cut and removed any ship timber from lands acquired by the United States.-(Opinion, June 9, 1832, vol. 2, p. 524.)
The President may employ such military force as he may judge necessary and proper to remove persons who may intrude upon any lands ceded or secured to the United States by any treaty made with a foreign nation, or by a cession from any individual State ; and hence may adopt that method in respect to the lands in question.-(Opinion, Aug. 22, 1833, vol. 2, p. 575.)
The President of the United States has lawful authority summarily to remove intruders from lands duly held by the government for the site of a light-house, or for any other competent purpose.-(Opinion, Sept. 21, 1855, vol. 7, p. 534.)
Lands containing iron ore merely, are not to be considered as “mineral lands," within the meaning of the Act of 1st March, 1847; but they are to be disposed of according to the laws in relation to the disposition of other public lands.-(Opinion, Aug. 28, 1850, vol. 5, p. 247.)
Private entries are not in order, until the land shall have been proclaimed to be, and shall have been properly put in market. Lands which have never been in commerce at all cannot be treated, at the end of the term designated in the treaty and these sections into half sections, quarter sections, eighths of sections, and sixteenths of sections.
They are then, after due notice, exposed at public sale to the highest bidder. When thus exposed at public sale and not disposed of, they become subject to private entry, at the minimum price of $1.25 per acre.
A person desirous of obtaining, under the pre-emption law before alluded to, a tract of 160 acres of land, should settle upon the same, build thereon a house, and proceed to cultivate, and otherwise in good faith to make it the home and residence of himself and family. Within thirty days from the date of his settlement on the land, he is required to file with the land officers for the district in which such tract may be situated, a declaration in writing, setting forth that he is a citizen of the United States, or if an
with the Indians, as lands for which nobody would bid. --(Opinion, March 29, 1843, vol. 4, p. 167.)
It is the duty of the executive to secure to all persons a fair and equal opportunity of purchasing the public lands.-(Opinion, July 14, 1837, vol. 3, p. 274.)
Lands that have been temporarily withheld from private sale, should not be allowed to be entered, until suitable notice has been given of the removal of the cause of suspension.–16.
The Treasury Department has no authority to require a certificate that notice has been given, or that lands are liable to entry; nor can the treasurer refuse pay for a specific tract, unless he have official evidence that it is not subject to sale.-16.
The regulation, established by the Commissioner of the General Land Office, requiring holders of land warrants to make affidavit, that there is no settlement on the land intended to be located, is inconsistent with the Act of 11th February, 1847, and void.—(Opinion, August 7, 1852, vol. 5, p. 609.)
Where a settler upon certain lands on the east bank of the Mississippi river, which, when subsequently surveyed, was designated as the southwest fractional quarter of section twenty-five, failed to make payment therefor prior to the day appointed for the public sale of lands in that vicinity, and by his agent, on that day, refused to enter and pay for the same, unless he could be permitted also to enter the southeast fractional quarter section ; and not being gratified in that respect, (the land officers refusing his request, and offering all the lands at public sale, and actually selling the southeast fractional quarter, and afterwards obtaining a confirmation of their proceedings,) by his agent having applied to the Secretary of the Treasury for a hearing, in respect to his claim of pre-emption: Held, that he abandoned his claim by refusing to make payment, unless he could be permitted to enter the southeast fractional quarter section, and that by such refusal he forfeited all right, which he had previously acquired to the premises.-(Opinion, October 27, 1837, vol. 4, p. 637.)
Under the laws of the United States, aliens are entitled to purchase the public lands, subject only, as to their tenure, to such limitations as particular States may enact; with this exception however, that pre-emptions are secured to aliens who have declared their intentions to become naturalized according to law, and to citizens, whether native born or naturalized, and none others.-(Opinion, July 28, 1855, vol. 7, p. 351.)
The same distinction is maintained in the graduation acts, with the further condition, that the limited quantity of land, purchasable by any person at the reduced prices, can be purchased only for personal use, and for actual settlement and cultivation.--16.
Where a section of public land was included with other lands in the President's proclamation for sale, and the sale took place, but the section in question was not sold, the presumption is, that such section was cried by the auctioneer; and an applicant to enter the same at private sale, need not be required by the Register to prove that it was actually cried in the hearing of the bidders.--(Opinion, November 29, 1851, vol. 5, p. 476.)
An application for the purchase of land was rejected by the Register, and the applicant then tendered the purchase-money to the Treasurer of the United States, who refused to receive it. Held, that the neglect of the applicant to appeal to the
alien, that he has filed a declaration of intention to become a citizen, and that he has settled upon a certain tract of land, (describing the same,) and intends to purchase it under the said pre-emption law.
At the expiration of twelve months from the date of his settlement, he is required to appear at the land office of his district, and make proof of his settlement, cultivation, &c., and payment for the land. After these requirements have been complied with, he receives from the government of the United States a patent or deed in fee simple, for the land thus settled upon and paid for.
Where lands have been surveyed but not exposed to public sale in the manner herein described, they can be obtained under the same pre-emption law at $1.25 per acre, but proof of a compliance with the law, and
General Land Office, was not an abandonment of his application. Lytle v. Arkansas, 9 How. 328.---(Opinion, November 29, 1851 ; vol. 5, p. 476.)
The question, whether there has been a dedication of a section of land to the city of Cincinnati, is not for the executive department to decide. That, and all other questions of conflicting claims and boundaries, will be open to the proper courts of justice after the patent shall have been issued.--Cincinnati v. White's Lessees, 6 Pet. 431.
The President has no authority, under the Constitution, to dispose of, by lease or otherwise, any portion of the public lands without authority of law; and the authority to lease mineral lands is limited by law to salt springs and lead mines, and the necessary contiguous sections.—(Opinion, April 18, 1846, vol. 4, p. 480.)
Wherefore the President is without authority to lease, or cause to be leased, lands which contain mines of copper or silver as the predominating mineral.---16.
Minors have the right to redeem their lands sold for taxes at any time within two years from the removal of the disability, by payment of the purchase-money with ten per cent. thereon, and compensation for improvements, whether deeds have been given to the purchasers or not; for no deed is valid unless given in pursuance of law, and the law does not authorize the giving of a deed until the time of redemption shall have expired.-(Opinion, July 3, 1820, vol. 1, p. 378.)
Sales of lands excepted from sale by act of Congress are void for want of authority. --(Opinion, October 22, 1828, vol. 2, p. 186.)
The decision of a court as to the invalidity of the claim causing the exception, will not correct the error.-Ib.
A purchaser of a tract, as to part of which there was authority to sell, and as to the other part there was not, has the option to avoid the entire contract, or to receive a patent for such part as could be sold.--Ib.
Lands struck off on the last day of a public sale, and not paid for, are not subject to private entry prior to being again offered at public sale. Such tracts are not unsold lands at the close of the public sales, but are to be regarded as reverted lands. —(Opinion, April 1, 1829, vol. 2, p. 200.)
Where the purchase-money is paid directly to the Treasurer, the specific tract of land must be stated the same as if applied for at the office of the land district, and the same form must be pursued.--(Opinion, October 24, 1836, vol. 3, p. 150.)
Where H. and F. applied at a land office to enter certain lands, but not being able to comply with the regulations of the department, procured them to be marked and reserved from sale, to T., who, soon thereafter, applied to purchase and pay for them, and was refused; and afterwards H. and F. made payment and obtained a certificate of purchase: Held, that the land officers should have complied with T.'s offer; and that, as a patent has not yet issued, the matter is yet under control of the General Land Office.--(Opinion, June 5, 1837, vol. 3, p. 240.)
When the purchaser of land from the United States has paid for it, and received a final certificate, it is taxable property acccording to the Statutes of Michigan, although a patent has not yet been issued. Taxation upon land so held, is not a violation of the ordinance of 1787, as an “ interference with the primary disposition payment, are not required until the day fixed upon for the public sale to take place.
This may be a few weeks or several years after the settlement, and hence the period of the credit on such lands is uncertain.
The laws to which allusion is here made are general, and apply to all the States of the Union in which the government of the United States owns lands.
Should it be in my power at any future time to afford you further information on the subject, it will give me pleasure to do so.
T. EWING, Secretary. Henri Dublancy Taborde,
St. Pierre, Island of Martinique:
of the soil by Congress," nor is it a tax on the lands of the United States. The State of Michigan could rightfully impose the tax. It was competent for the State to assess and tax such lands at their full value, as the absolute property of the holder of the final certificate, and in default of payment, to sell them as if he owned them in fee. In case of controversy, a court of equity is the proper tribunal to prevent an injurious act by a public officer, for which the law might give no adequate redress, or to avoid a multiplicity of suits, or to prevent a cloud from being cast over the title.-Carrol v. Safford, 3 How. 441.
The Supreme Court of Missouri has decided that although the State courts cannot interfere with the primary disposition of the soil by the general government, yet if, in obtaining from the United States, the legal title to a tract of land, one be guilty of fraud, or affects himself with a trust, he shall hold the title thus acquired for the benefit of those who have been injured. A. having entered a tract of land, found B., a married woman, in possession, without the right of pre-emption, and paid her fifty dollars for her improvements, and for yielding possession to him. 'Afterwards, without notice to A., and with the money thus obtained, she procured a patent for the same: Held, that the right thus acquired was clothed with a trust for the benefit of A.Groves v. Fulsome, 16 Mo. Reps. 543.
It was held by the Supreme Court of Missouri, that where one enters land of the United States in his own name with the money of another, and procures a patent for the same, equity will decree the title to the party to whom it belongs.-Stephenson v. Smith, 7 Mo. Reps. 610.
An application to a Register and a deposit of money with him, in the absence of the Receiver, can give no right in law or equity to the land applied for.-Groom v. Hill, 9 Mo. Reps. 320.
The receipt of a Receiver is prima facie evidence that the law has been complied with, but it does not stand on the same footing with a patent, and it may be shown by parol evidence to be void.-Allison v. Hunter, 9 Mo. Reps. 741.
A promise by a vendee to pay a person for improvements which he had made upon public lands, previous to the vendee's purchasing of the United States, is without consideration and void.-IIutson v. Overturf, Illinois Reps., 1 S. 170.
In Illinois, a settler upon the public lands of the United States cannot maintain trespass against a person who may enter and cut down the timber upon a portion of the legal subdivision of land upon which he is settled, but which is not actually inclosed or occupied by such settler.---Lovett v. Noble, ib., 1 S. 185.
In Illinois, where the plaintiff has made rails from timber growing on government land and left them piled thereon, and the defendant afterwards purchased the land from the government and converted rails, to his own use : Held, that the plaintiff could maintain an action of trespass against the defendant and recover the value of the rails taken.- Wincher v. Shrewsbury, ib., 2 S. 284; Brown v. Throckmorton, 11 ib., 529.
CIRCULARS OF INSTRUCTION. No. 397. Circular to Registers and Receivers of the United States Land Offices, in relation to Public Auction land sales.
GENERAL LAND OFFICE,
July 22, 1844. Gentlemen :-At public sale, the townships, (or promiscuous, detached tracts, as the case may be,) are to be offered in the order in which they stand in the Proclamation; and the tracts in each township (or fractional township) are to be put up to the highest bidder in the order of their numbers, beginning in each case with the lowest number of section or lot in the series, and continuing, regularly on, to the highest. The lots in each section are to be offered in the following order, viz:
East 1 North East 1 ) East South East i ?
In reference to the mode of conducting such sales, you are referred to the particulars contained in the printed circular letters from this Office, dated May 25th, 1831, and December 31st, 1833.
The law limits the duration of the term of sale to two weeks, but no sale is to be kept open for a longer term, (within such limitation) than is really necessary for the convenient offering of all the land ; and, as a general rule, private entries of the land so offered are not to be admitted until after the expiration of the full term of two weeks, in order to give the officers abundant time to bring up the records of sale.
It is the duty of the Register, preliminary to every public sale, to open up in the tract books of his office, in the regular order of townships in a range, and of sections in the township, or fractional township, (leaving sixteen lines for every section, and proportional spaces for fractions,) the particular lands to be offered, so that those books may be fully prepared for operations by the day of sale. The tract books must be kept posted up as regularly as the other books of the Register's office, and the Receiver is hereby requested specially to certify to this Office, from month to month, the condition of the tract books and other books of the Register's office, in a manner as particular as the Register is required to certify the periodical condition of the Receiver's office by endorsement on the Receiver's monthly accounts current.
Where the amount of land to be offered at a public sale is such as to require the aid of a public crier, a moderate charge for his services will be allowed, but under no circumstances to exceed three dollars per day. No clerk hire at such sales will be allowed, unless it shall be satisfactorily shown that the magnitude of the duty was such as to render the services of a clerk indispensably necessary for the due dispatch of business for the convenience of purchasers.
In your respective monthly abstracts you are requested to discriminate every tract of land disposed of at public sale, by writing the words "pub. sale” opposite thereto, in the margin; and to discriminate pre-emption entries by writing the words “pre-emption act of " opposite to the same, and after making up the aggregate amount of acres and purchase money at the foot of such abstract, you are required to form a recapitula