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after receiving and filing" Joseph Polley's declaratory statement, (covering the same land,) and before his time for making proof and payment had expired,” I have to state that an explanation from the local officers was unnecessary, such action being common to all the district offices. Ever since the establishment of the pre-emption system, it has been the practice of the different local offices to permit private entries of offered lands upon which declarations had been filed,-such entries being understood by all parties to be subject to the right of the pre-emptors. In such cases, where the pre-emption claims are abandoned or impeached, the private entries hold good; or where the pre-emptions are proved up and entries approved and patented, the private entries are cancelled.

Respectfully, &c.,

Thos. A. HENDRICKS, Commissioner. Hon. J. Thompson, Secretary of the Interior.

No. 405. Lands once entered cannot be purchased at private sale until they are re

stored to market by notice. An application to purchase withdrawn land confers upon the applicant no preference right to purchase it.

DEPARTMENT OF THE INTERIOR,

June 17, 1859. Sir:--It appears from the papers received with your letter of the 14th of April last, that Arris Cox asserts a pre-emption claim to a certain tract of land in the Augusta District, Mississippi, which is contested by Morris A. Pardue. Cox commenced a settlement upon said land in April, 1857. In October following, he was permitted to make proof and payment. This state of facts operates as a withdrawal of lands thus situated from private entry until after a publication of notice restoring them to market. But at the date of Pardue's application, the land in contest was withdrawn from sale for railroad purposes, and no application from him for the same could have been properly received. An application to purchase lands which are withdrawn from market, will not be regarded as continuing and attaching a valid claim thereto upon restoration, but a new application would then be necessary.

For two reasons, then, said Pardue has no rights as an adverse claimant.

At the time the lands in question were restored to market, and for some time prior thereto, the pre-emption claimant, Cox, appears to have been a bona fide settler thereon. In view of the facts of the case, said Cox is entitled to a confirmation of his entry and location under the Act of 26th of June, 1856, (No. 291,) and the same will accordingly be reported for that purpose, at your earliest convenience.

Very respectfully,

(Signed,) J. THOMPSON, Secretary. Commissioner of the General Land Office.

23

No. 406.

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In all cases where Lands have been brought into market under the operation

of the laws, they must remain subject to sale, unless it is necessary to withdraw them for the proper execution of other laws, &c.

DEPARTMENT OF THE INTERIOR,

September 3, 1859. Sir :- I have to acknowledge the receipt of your letter of the 27th ult., relative to the petition which was presented to the President some days since, asking that the public lands in Kansas and Nebraska, be withheld, by order of the Executive, from private entry after the close of the public sales. Upon a full consideration of the proposition thus submitted, the President is of the opinion that the law has invested him with no authority to grant the request, and directs me so to inform you.

The Act of Congress upon this subject declares that all the lands offered at such public sales and which shall remain unsold at the close thereof, shall be subject to entry at private sale, in the same manner, and at the same price with the other lands sold at private sale at the respective land offices.' This law is absolute in its terms, and its provisions cannot be disregarded. In all cases where lands have been brought into market under the regular operation of the land laws, they must remain subject to sale, unless it becomes necessary to withdraw them from market for the proper execution of other laws passed by Congress. Hence sales of lands once offered have only been suspended to prevent confusion of titles, and to protect vested rights arising under law or treaties, or to secure a proper adjustment of grants actually made by Congress for railroad and other purposes. They have not been, nor can they be, withheld from sale from considerations of policy or profit merely; nor, indeed, in anticipation of future grants for purposes of improvement.

Such was the answer given, in April last, to a similar application made by certain citizens of Louisiana, and such must be the reply on the present occasion. Be pleased to inform your memorialists accordingly.

Very respectfully,

Your obedient servant, W. F. M. Arny, Esq.,

J. THOMPSON, Secretary. Barnum's Hotel, St. Louis, Mo.

No. 407. Lands once entered, and the entry cancelled, cannot be again sold until after public notice, except by pre-emption.

DEPARTMENT OF THE INTERIOR,

September 28, 1859. Sir :--The land in the Springfield District, Illinois, which G. W. Danforth claims the right to enter, as set forth in your report of the 2nd instant, having been previously entered, and that entry cancelled, cannot be again entered until after thirty days notice, except by pre-emption.

Your decision, adverse to the application of said Danforth, is accordingly hereby affirmed.

Very respectfully,

J. THOMPSON, Secretary. Joseph I. Wilson, Esq.,

Acting Commissioner of the General Land Office.

TITLE III.

Pre-emption Claims.

I. PRE-EMPTION GENERALLY.

[The policy of securing to individuals a preference right to purchase a limited quantity of the public land, which they had improved and inhabited, had its origin more than fifty years ago, and it has been gradually extended and enlarged in its application. In the country northwest of the Ohio, and above the mouth of the Kentucky River, as early as May 10, 1800, and afterwards in Michigan Territory, in Illinois Territory, in lands south of Tennessee, in the Louisiana purchase, in Florida, and in Missouri Territory, in particular cases, and on special conditions, varying in each of those localities, pre-emption rights were granted by various statutes, notwithstanding intrusions on the public lands had been prohibited by the Act of March 3rd, 1807, which was prior in date to many of the pre-emption

An entry under a settlement and pre-emption right, made in the name of "the heirs” of the pre-emption claimant, is valid, though the heirs be not named.-Hunt v. Wickliffe, 2 Peters, 201; 8 Condensed Reports, 85.

No reservation or appropriation of a tract of land can be made, after a citizen has acquired a right to it under a pre-emption law.— United States v. Fitzgerald, 15 Peters, 401; 14 C. R. 128.

The proviso, in the 5th section of the Act of March 3, 1811, excluding from the right of pre-emption back lands fit for cultivation, bordering on another river, creek, bayou or water-course,” refers only to lands bordering on some navigable water, and which also are fit for cultivation.-Surgett v. Lapice, 8 Howard, 48; 17 C. R. 497.

Under the pre-emption Act of 1830, continued in force by that of 1832, and the instructions of the commissioner of public lands, the pre-emptor was permitted to file his proofs identifying the land in the absence of surveys: the Register and Receiver were constituted a tribunal to decide on the validity and extent of such preempton rights, and their decision can be impeached only by evidence of fraud.Lytle v. Arkansas, 9 How. 314; 18 C. R. 154. (But see Bernard's Heirs v. Ashley's Heirs, 18 How. 43.)

Where the misconduct or neglect of a public officer, is the sole cause why an individual fails to obtain a title under a valid pre-emption claim, equity will relieve him.-16.

Under the acts above mentioned, the pre-emption right is limited to the fractional quarter-section on which his improvements were made, and does not extend to adjoining fractions, not exceeding one hundred and sixty acres.-16.

The Act of 15th June, 1832, granting land to the Territory of Arkansas, did not affect a pre-emption right then duly proved.-16.

The decision of the Register and Receiver of a land-office, in the absence of fraud, would be conclusive as to the facts that the applicant for the land was then in possession, and of his cultivating the land during the preceding year, because these questions are directly submitted to those officers; yet if tbey undertake to grant preemptions to land, on which the law declares they shall not be granted, then they are acting on a subject-matter clearly not within their jurisdiction ; as much so as if a court whose jurisdiction was declared not to extend beyond a given sum, should

laws to which reference is made. The anomaly was thus presented by Congress, of rewarding those whom an existing law provided penalties against as trespassers, so that the policy indicated would seem to sustain the opinion, that none but trespassers could then become purchasers under the pre-emption laws.

By the Act of 29th May, 1830, pre-emption rights were granted to every settler or occupant of the public lands,” who was in possession at the date of that law, and had cultivated any portion of the land not exceeding one hundred and sixty acres.

This law was limited to one year, but by the subsequent acts, approved July 14, 1832, March 2, 1833, June 19, 1834, June 22, 1838, and June 1, 1840, pre-emption privileges were extended to a later date, and to a larger class of persons.

But as these laws had principally a retrospective bearing, and were limited in operation to one or two years, it was determined to change the system in these respects, and accordingly the Act of 4th September, 1841, which, together with the supplemental Act of 3rd March, 1843, entirely superseded the pre-emption laws above referred to, was passed. These enactments are of general and prospective application, and are still in force.

attempt cognizance of a case beyond that sum.- Wilcox v. Jackson, 13 Pet. 498; 13 C. R. 266.

Appropriation of land by the government, is nothing more or less than setting it apart for some particular use. In the case before the court there has been an appropriation of the land, not only in fact but in law.-16.

By the act of Congress of 1830, all lands are exempted from pre-emption which are reserved from sale by order of the President of the United States. The President speaks and acts through the heads of the several Departments, in relation to subjects which appertain to their respective duties. A reservation of lands, made at the request of the Secretary of War, for purposes in his Department, must be considered as made by the President of the United States within the terms of the act of Con

gress.--16.

Whensoever a tract of land shall have once been legally appropriated to any purpose, from that moment the land thus appropriated becomes severed from the mass of public lands; and no subsequent law or proclamation, or sale, would be construed to embrace it, or to operate upon it; although no other reservation were made of it.--16.

The right of pre-emption was a bounty extended to settlers and occupants of the public domain. This bounty, it cannot be supposed, was designed to be extended to the sacrifice of public establishments, or of great public interests.--16.

Nothing passes a perfect title to public lands with the exception of a few cases, but a patent. The exceptions are, where Congress grants landsin words of present grant. The general rule applies as well to pre-emptions as to other purchases of public lands.-16.

The Act of the Legislature of Illinois, giving a right to the holder of a Register's certificate of the entry of public lands, to recover possession of such lands in an action of ejectment, does not apply to cases where a paramount title is in the hands of the defendant, or those he represents. The exception in the law of Illinois, applies to cases in which the United States hare not parted with the title to the land, by granting a patent for it.16.

A State has a perfect right to legislate as she may please in regard to the remedies to be prosecuted in her courts, and to regulate the disposition of the property of her citizens, by descent, devise or alienation. But congress is invested by the Constitution with the power of disposing of the public land, and making needful rules and regulations respecting it.-16.

When a patent has not been issued for a part of the public lands, a State has no power to declare any title less than a patent, valid against the claim of the United States to the land; or against a title held under a patent granted by the United States.-16.

Whenever the question in any court, State or Federal, is, whether the title to property which had belonged to the United States has passed, that question must be resolved by the laws of the United States. But whenever the property has passed, , according to those laws, then the property, like all others in the State, is subject to State legislation, so far as that legislation is consistent with the adatission that the

With regard to the legal effect of an unconsummated pre-emption right, the Supreme Court, in the case of Lytle et al. v. The State of Arkansas, 9 Howard, 333, held as follows:

“ The claim of pre-emption is not that shadowy right, which by some it is considered to be. Until sanctioned by law, it has no existence as a substantive right; but when covered by the law it becomes a legal right, subject to be defeated only by a failure to perform the conditions annexed to it. It is founded in an enlightened public policy, rendered necessary

title passed and vested according to the laws of the United States.- Wilcox v. Jackson, 13 Pet. 498; 13 C. R. 266.

The judgment of every tribunal acting judicially, whilst acting within the sphere of its jurisdiction, where no appellate tribunal is created, is final; and even where there is such an appellate power, their judgment is conclusive when it only comes collaterally in question, so long as it is unreversed. But the reverse is true as to the judgment of any court acting beyond the pale of its authority.-1b. See also Elliott v. Piersol, 1 Pet. 340.

The Act of Congress passed on the 4th of July, 1836, provided for a direct supervision by the Commissioner of the General Land-Office over Registers and Receivers of the land-offices, and, therefore, their judgment is not conclusive in a case where additional proceedings were had before them. The cases of Wilcox v. Jackson, 13 Pet. 511; and Lytle v. Arkansas, 9 How. 333, explained. See Barnard's Heirs v. Ashley's Heirs, 18 How. 43.

Extract from the opinion of the Supreme Court, delivered in the case of Barnard's Heirs v. Ashley's Heirs, 18 Howard, 44, 45. According to the conceded facts, it is insisted, on the part of Ashley and Craig, that the Register and Receiver having on due proof and examination, rejected Barnard's claim to a preference of entry of the four quarter-sections, he is thereby concluded from setting them up in a court of equity, because the Register and Receiver acted in a judicial capacity, and their judgment being subject to no appeal, is conclusive of the claim. And the cases of Jackson v. Wilcox and Lytle v. The State of Arkansas, are relied on to maintain this position.

“In cases arising under the pre-emption laws of 29th May, 1830, and of the 19th June, 1834, the power of ascertaining and deciding on the facts, which entitled a party to the right of pre-emption, was vested in the Register and Receiver of the land district in which the land was situated, from whose decision there was no direct appeal to higher authority. But even under these laws, the proof on which the claim was to rest, was to be made agreeably to the rules to be prescribed by the Commissioner of the General Land-Office,' and if not so made, the entry would be suspended, where the proceeding was brought before the Commissioner by an opposing claimant. In cases, however, like the one before us, where an entry had been allowed on er parte affidavits, which were impeached, and the land claimed by another founded on an opposing entry, the course pursued at the General Land-Office was to return the proofs and allegations in opposition to the entry to the district office, with instructions to call all the parties before the Register and Receiver, with a view of instituting an inquiry into the matters charged; allowing each party on due notice, an opportunity of cross-examining the witnesses of the other, each being allowed to introduce proofs; and on the close of the investigation the Register and Receiver were instructed to report the proceeding to the General Land-Office, with their opinion as to the effect of the proof, and the case made by the additional testimony. And on this return the Commissioner does in fact exercise a supervision over the acts of the Register and Receiver. This power of revision is exercised by virtue of the Act of July 4, 1836, 1, which provides that from and after the passage of this act, the executive duties now prescribed or which may hereafter be prescribed by law, appertaining to the surveying and sale of the public lands of the United States, or in anywise respecting such lands; and also such as relate to private claims of land, and

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