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No. 440. Where two parties settled prior to the survey of the land, a division of the

same, so that each can obtain his principal improvements, may be made in a given case in Kansas Territory.

DEPARTMENT OF THE INTERIOR,

September 22, 1859. Sir:- The case of Roosa v. Schepp, from the Land Office at Ogden, Kansas Territory, has been duly considered, and the papers which were received with your letter of the 31st ultimo, are now returned.

Both parties claim the right of pre-emption to a certain eighty acre tract of land, each claiming, besides, an additional half quarter-section. It appears that both settled in the month of July, 1851, prior to the survey of the lands claimed, and that after the survey, they were found occupying the same quarter-section.

Both are bona fide settlers, and to deprive either of his home, would work a great hardship. The question of priority of settlement is one of doubt, and is difficult to determine. The local officers have decided that Schepp was the first settler, and you have decided that Roosa made the first valid settlement. It is presumed that both claimants have valuable improvements on this eighty, and if, by allowing each to enter one fortyacre subdivision thereof, he can thus secure his principal improvements, justice, and the spirit of the law in similar cases, seem to require that they should be permitted to divide the land in the manner indicated. If this cannot be done, a joint entry of the tract in dispute may be allowed.

The Register and Receiver will report their proceedings, in pursuance of the foregoing decision, to your office.

Very respectfully,

J. THOMPSON, Secretary. Commissioner of the General Land Office.

No. 441.
A member of a Claim Club, organized for the purpose of illegally appro-

printing and selling public lands, will be held to the strictest proof of honest intent, when asserting an individual claim.

DEPARTMENT OF THE INTERIOR,

September 28, 1859. Sir :-I have considered the case submitted by your letter of the 31st ultimo, involving the pre-emption claim of George Stump and William Jacobs, to a tract of land in the Lecompton Kansas district.

Said Jacobs alleges settlement on the 15th July, 1857, on which day he appears to have hauled four logs on the land in controversy. Some other meagre improvements were made by his direction, before the settlement of Stump commenced, to wit, on the 29th August, 1857, on which day Stump went on the land with his family, and established his home thereon.

It is clearly proven, that said Jacobs was a member of a claim club, which had been organized for the purpose of selecting tracts of land, and selling the same, or their pretended rights thereto, to actual settlers. That several claims were sold by said club, from which sales Jacobs derived a portion of the profits. That the land now in controversy was, at one time, selected by said club, but afterwards abandoned. This complicity of said Jacobs with others, engaged in an unauthorized appropriation of, and speculation in, the public lands, and his acts as a member of such organization, render it proper that the strictest rules of the law should be applied in adjudicating his alleged right; and, as he was interested in selecting and appropriating for the benefit of the club, other lands, if not this specific tract, and as the club had encumbered certain lands in such a manner as to induce settlers to buy out the club claim, stronger proof of the honest intent of said claimant must be produced, than would be required in ordinary cases.

The means employed by the club to select lands are not known, but it is fairly presumable that they simply hauled a few logs on the different tracts, or made other slight improvements thereon, by which it was considered that their right would attach to the same. In this way, every quarter-section in that region might have been illegally heid, and one or another member of the club might be able to show improvements on any particular tract, and thus defeat subsequent bona fide settlers. Had either of the tracts sold by the club been settled upon by an adverse claimant, doubtless some member thereof would have been able to produce evidence of prior improvement. A system so well adapted to cloak frauds, and one so opposed to law and justice, can receive no countenance or encouragement from this Department. But the testimony in the case does not satisfy my mind that said Jacobs ever manifested an intention to claim this land individually and for his own use, prior to the date of the adverse settlement. His first acts are not sufficiently connected with his subsequent improvements, and as no actual inhabitancy is shown by him before the case was heard by the Register and Receiver, I am the more fully satisfied that his claim should be rejected.

Said Stump, upon complying with all the requirements of the law, may be permitted to enter the land claimed by him.

Very respectfully,

J. THOMPSON, Secretary, Acting Commissioner of the General Land Office.

No. 442. Where a patent issued for a tract of land to which a prior Pre-emption right was asserted, an investigation ordered.

DEPARTMENT OF THE INTERIOR,

September 29, 1859. Sir :-In relation to the claim, by pre-emption, of Charles Spurlock to a tract of land in the Lecompton, Kansas, district, which conflicts with a Wyandott float location, in the name of George Armstrong, you report, that the pre-emption settlement of said Spurlock was anterior to the said float location, and that you refused the application for a new hearing in said case, made by the attorney of said pre-emption claimant, for the reason that the patent had issued to the other party, and that the case had therefore passed beyond the control and jurisdiction of your office. My opinion is, that the claim of said Spurlock should be investigated. You will accordingly remand the case to the local land officers, instructing them to notify all parties in interest, of a time and place when and where the claim of said Spurlock will be heard and examined, and to allow the adverse claimant of the land to cross-examine the witnesses of the pre-emptor, and to produce evidence in support of his rights, if he should see fit so to do. The Re

gister and Receiver will then report their proceedings in the matter, and forward the testimony to your Bureau, and thereafter it may be determined whether said Spurlock is entitled to any relief in the premises, and if so, in what manner the same may be properly and legally afforded.

Very respectfully,

J. THOMPSON, Secretary. Acting Commissioner of the General Land Office.

II. SETTLEMENTS AND DECLARATORY NOTICES. No. 443. Where there is but one Pre-emption Claimant, the date as well as the fact

of pre-emption settlement is within the exclusive jurisdiction of the District Land Officers. A pre-emption right attaches from the date of settlement.

DEPARTMENT OF THE INTERIOR,

May 12, 1851. In looking into the case of Henry C. Gist v. Blackman and Fletcher Sullivan, submitted with your letter of the 10th instant, I find that Gist is a pre-emptor, under the Act of 1841, (No. 48,) and that his right has been established to the satisfaction of the Register and Receiver; and that the Messrs. Sullivan, who are only purchasers at ordinary private sale, appeal from the decision on Gist's claim. In such a case, there is no appeal to this Department,* the law having authorized an appeal only in cases where “two or more persons have settled on the same quarter-section of land.” The Act of 1841 requires that the applicant shall, within thirty days next succeeding the date of his settlement, file with the Register a “declaratory statement;" and that within twelve months from the date of such settlement, proof of settlement and cultivation shall be made to the satisfaction of the Register and Receiver. From their decision, as to the fact of settlement and cultivation, there is no appeal, except where two or more persons claim the right of pre-emption. The date as well as the fact of settlement is within the exclusive jurisdiction of the District Land Officers, where there is but one pre-emption claimant, and any entry of the land at private sale, subsequent to the period established to their satisfaction as the date of settlement, must be regarded as illegal and void ; as the preemption privilege or right, when once legally established must be regarded as attaching from the date of settlement. The papers submitted by you are herewith returned.

Very, &c.,

A. H. H. STUART, Secretary. Commissioner of the General Land Office.

* See Barnard's Heirs v. Ashley's Heirs, 18 How. 43. Note, p. 357. + Cases of this character may be suspended. (See No. 110.)

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The first settler is entitled to the right of Pre-emption in preference to the

first resident. Extract from a letter of Commissioner Hendricks, of date

June 2, 1856. “ The commencement of the settlement, when made in good faith, and followed as in the case of Rice, by cutting timber for a house, and proceeding from day to day in procuring the materials, and progressing with the work as fast as circumstances would admit, until it was sufficiently furnished to move in with his family, and in which such settler has continued to reside until the day of the hearing, is, in my opinion, a compliance with the law, and gives him a preference over every other claimant, subsequently entering on the land, although such other claimant might succeed in erecting a house, and moving in, and becoming a resident and inhabitant of the tract, before the prior settler had finished his house and commenced his residence.

Very, &c.,

“T. A. HENDRICKS, Commissioner.”

Reply to the foregoing.
DEPARTMENT OF THE INTERIOR,

June 4, 1856. For the reasons assigned in your report of the case, the Department fully concurs in the views expressed by you, as to the right of the parties, &c.

R. M‘CLELLAND, Secretary. Commissioner of the General Land Office.

No. 445.
Land Officers are authorized to admit proofs of the bona fides of Pre-

emption Claimants.
DEPARTMENT OF THE INTERIOR,

July 11, 1856. I return herewith the papers in the case of Aaron Flickinger, John Kofer, Rensaleer Strong, and Thomas Lombard, submitted in your letter of 3d May last. I am of opinion, that the land officers are authorized to receive proofs of the bona fides of the claimant in a pre-emption case, and any evidence that will satisfy their minds, that this did not exist at the time of the administration of the affidavit required of the pre-emptor or afterwards, should be admitted. The object should be to execute the law according to its spirit, and to give its benefits to actual bona fide settlers, and not speculators.

In the present case, the testimony is conflicting upon the question of the character of Flickinger's original entry upon the land claimed by him, and the land officers, in determining that question, appear to have regarded the weight of the evidence in favor of Flickinger, although their judgment is not so clearly expressed as to divest it of all suspicion that the principles of the Circular of November 3, 1843, in regard to a claimant's affidavit, entered into the elements upon which their conclusions were based. I think it therefore best, that the case be remanded to them for examination and revision, so that substantial justice may be done in the premises.

R. M'CLELLAND, Secretary. Commissioner of the General Land Office.

No. 446. It is proper to admit evidence showing the intention of a Pre-emption

Claimant in making settlement. Case of Flickinger v. Lombard, Klofer and Strong.

DEPARTMENT OF THE INTERIOR,

July 20, 1857. In order to arrive at a correct conclusion as to the right of pre-emption arising between different settlers, under the Act of 4th September, 1841, it is proper to admit evidence showing the intention of the parties in settling upon and improving the land. It is sworn by three witnesses, in this case, that the claimant Flickinger, within a few months after his settlement, which he claims to have made on the 14th of June, 1854, stated in the hearing of each of them, that he held the claim for D. L. Fuller. Two of the witnesses testify that Flickinger told them that he was employed by Fuller at twenty-six dollars a month. Four witnesses testify to hearing him speak of his claim in the “Big Woods," during the time he was occupying the land in controversy. It is also in evidence that Flickinger stated, under oath, on a trial before a Justice of the Peace, that he and Fuller were to go “snacks in the claim.”

From the testimony in this case, I am of opinion that Flickinger is not entitled to the land claimed. The claim of Klofer is considered valid.

J. THOMPSON, Secretary. Commissioner of the General Land Office.

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No. 447.
A bona fide settler may be allowed to amend his Declaratory Statement

and make a new settlement in case no valid adverse claim exists. Decision in the case of Murray v. Bissell and Sweets.

DEPARTMENT OF THE INTERIOR,

May 20, 1857. The land officers at Minneapolis, upon examination of the several applications, decided adversely to all of them; but to Murray's only because he had failed to file his declaratory statement within three months after the date of his settlement. Their decision was affirmed by this Department, but inasmuch as Murray was regarded as a bona fide settler, while S. K. and H. P. Sweet appeared to be intruders upon the land, seeking, by a merely nominal compliance with the provisions of the act, to avail themselves of the improvements made by Murray, the land officers were instructed by your letter of 3d July last to inform him how he could perfect his claim and secure his location. Acting under these instructions he made a new settlement, and took the other steps required of him, when his claim was again contested to lot 9 by the filing (on the 28th November, 1856,) of an application for the purchase of that lot as a town site. The testimony, however, conclusively establishes the fact, that aside from the store alleged to have been kept upon the lot by one of the Sweets, the location was used for agricultural purposes, and for no other; the only actual bona fide settler thereon being D. C. Murray; and to allow the application of the town entry 'would be establishing a precedent by which any person, having a valid pre-emption claim, could easily be deprived of his rights by any contestant who should choose to open a store upon his

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