« ZurückWeiter »
time, the land was not open to entry or sale, and of course not subject to
The only reasonable ground of doubt on that point is found in the Act of March 3, 1853, (No. 222,) which enacts :
- That the pre-emption laws of the United States, as they now exist, be and are hereby extended over the alternate reserved sections of public lands along the lines of all the railroads in the United States, wherever public lands have been or may be granted by acts of Congress.
66 Provided further, That any settler who has settled on lands heretofore reserved on account of claims under French, Spanish, or other grants which have been or shall be hereafter declared by the Supreme Court of the United States to be invalid, shall be entitled to all the rights of pre-emption granted by this and the Act of the 4th September, eighteen hundred and forty-one, entitled “ An Act to appropriate the proceeds of public lands to grant pre-emption rights,” after the lands shall have been released from reservation, in the same manner as if no reservation existed.” 10 Stats. at Large, p. 244.
The proviso of this statute gives to settlers within the limits of the claim of Maison Rouge : 1st, All the rights of pre-emption granted to any settler on the public domain by the general Act of September 4, 1841 ; and 2d, All other rights of pre-emption, if any, granted by this act.
What are those other rights ? Clearly those described in the body of the statute, which extends the pre-emption laws of the United States, as they now exist, to reservations heretofore made for the Government, in granting lands for railroads to States or others; and which pre-emption laws, as they now exist, if there be any other than the Act of 1841, are in addition to that extended to the lands of the claims of Maison Rouge.
The phraseology of the proviso, it is clear upon any construction of it, is illogical and inexact. The body of the statute applies the Act of 1841 tu the subject-matter; because that indubitably is one of the existing preemption laws of the United States. The words “granted by this act," carried the Act of 1841 to this land. It no more needed to specify the Act of 1841 in the proviso than in the body of the new statute.
But let that pass. The real question is of the legal intendment of the phrase, “ The pre-emption laws of the United States as they now exist.”
I apprehend that the object of the proviso was to provide for persons
Rouge, in addition to tenants holding by purchase in good faith under Maison Rouge. Concede, nevertheless, for the argument's sake, that the occupation, in virtue of which the pre-emptor claims, may date back to some anterior time. The question is, to what time? Or rather to what act to be referred, if any other than that of 1841.
It is contended, in behalf of Taylor, or of Mr. Rust, seeking to have an assumed inchoate or equitable title perfected through Taylor, that the temporary and expired pre-emption Act of June 19, 1834, is thus revived and made applicable to these lands, equally with that of September 4, 1841, and it is under the Act of 1834, and that only, that Taylor's administrator claims the right of pre-emption.
To this it might be replied, that any pre-emption accruing under that act must have been proved in the lifetime of the act, and if not so proved, is utterly and forever lost. 4 Stats. at Large, p. 678.
It might also be objected that, if the temporary Act of 1834 is revived and applied, so, also, are those of February 5, 1813, April 12, 1814, April 29, 1816, May 29, 1830, July 4, 1832, March 2, 1833, June 22, 1838,
and June 1, 1840, which construction would involve the legal possibility, if not the probability, of insoluble conflict of pre-emptor's claims.
These are secondary considerations, however, which might contribute to guide us to a correct construction of the Act of 1853, if the language of that act were equivocal, or of doubtful legal intendment. I am not able to perceive that it is so. It seems to me that the words, “ The pre-emption laws of the United States, as they now exist,” have but one possible signification. Now is the date of the enactment. It will cover, perhaps, all subsequent general provisions of law in pari materia, passed during the lifetime of the act in which it is found, such as the supplemental Act of March 2, 1855, and the pre-emption law of June 26, 1856, hereafter spoken of. But by no rule of construction whatever, can it go back to revive and re-enact expired statutes, and enable things to be done to-day which could otherwise be done lawfully only in the previous lifetime, and in virtue of such expired acts. Of course it cannot restore to vitality the Act of 1834, nor enable the representatives of Taylor to assert, under it, pre-emption rights which were created by it alone, which expired with it, and which are not capable of being asserted in virtue of permanent and subsisting acts of Congress.
Nothing to the contrary of this can be inferred from the use of the word “ laws,” in the plural number. Law does not necessarily imply a single statute, nor laws a plurality of statutes. Such an expression is sometimes employed as the precise equivalent of statute or statutes, and sometimes even in the plural number, it signifies provisions of statute, though contained in a single statute.
Besides which, the suggestion as to the force of the word “laws," assumes what is not true, namely, that in order to find some pre-emption law in addition to the Act of 1841, we need to look up expired statutes. That is not the only general statute on the subject of pre-emptions, which exists independently of the Act of 1853.
Thus, for instance, we have, besides the Act of 1841, the Act of May 26, 1824, the Act of March 3, 1843, the Act of May 23, 1844, and the Act of August 3, 1846, all which acts existed at the time of the passage of the Act of 1851, and were made applicable by it, to the lands of the grant of Maison Rouge.
Nor, as it appears to me, is any useful inference deducible from the words of the Act of 1853, “shall be entitled to all the rights of pre-emption granted after the land shall have been released from reservation, in the same manner as if no reservation existed.” We must give some significance, it is said, to these words. Granted; but it has ample meaning, without recurrence to the Act of 1834; for the very supposition of the Act of 1853 is, that persons may have been, at the time of its enactment, on the land, for the purpose of pre-emption, notwithstanding the unlawfulness of such settlement, by reason of the land being in the state of reservation ; and proceeding on that supposition, it proceeds to legalize, conditionally, such settlements, and to give to them rights of pre-emption, in the same manner as if no reservation existed, provided that all the rights of preemption so conceded, shall be such only as might otherwise be lawfully asserted, under subsisting acts of Congress.
There is a recent statute, that of June 26, 1856, (No. 294,) which revives and continues in force certain pre-existing statutes, in relation to suspended pre-emption land claims. These acts apply only to entries or sales suspended on account of error, or informality arising from ignorance, accident, or
mistake, and where the law has been substantially complied with, but not · to cases where there can be no lawful entry or sale, in consequence of the total absence of lawful authority. In the former alternative, and in that only, such suspended entries may be allowed by the Commissioner of the General Land Office, with approval of the Secretary of the Interior, and the Attorney-General. 9 Stats. at Large, p. 51.
On the whole, therefore, my opinion is, that, as the land in dispute was not subject to pre-emption at the time the alleged pre-emption rights were acquired, and the same not having been legalized by any subsequent statute, the claim, whatever may be its equities, is not sustained by law, and that, for aught that appears in the papers before me, the land still appertains to the public domain of the United States.
I am, &c.,
C. CUSHING. Hon. Robert M-Clelland,
Secretary of the Interior.
DECISIONS. No. 502. The question of right of Pre-emption at double the minimum on reserved alternate sections of the Illinois Railroad, settled.
DEPARTMENT OF THE INTERIOR,
August 28, 1857. Your letter of the 3d instant, and its enclosures, calling my attention to the decision of my predecessor, and the policy of the General Land Office, recognizing the right of pre-emption, at the double minimum price, in the United States reserved sections along the line of the Illinois Central Railroad, have been received. I have to inform you, in reply, that the question raised by you must be regarded as fully and finally settled, and no appeal from the decision of my predecessor thereon can be entertained by this Department.
J. THOMPSON, Secretary. J. C. Walker.
No. 503. The right of the State having attached to part of an alternate section, prior to the Pre-emption settlement, the entry of the Pre-emptor cancelled.
GENERAL LAND OFFICE,
January 12, 1859. Gentlemen :-In the pre-emption case, No. 455, of 2d October, 1856, in the name of Charles W. Tosh, he claims the north half, southwest quarter, section 31, township 92 north, range 45, west, and the east half, southeast quarter, section 36, township 92 north, range 46, west; and the proof shows that his settlement was made on the 12th September, 1856. These tracts are within the six-mile limits of the Dubuque and Pacific Railroad, within which limits the right of the State attached to the granted, that is, the odd numbered sections, on the 8th of July, 1856, from and after which date, the reserved, that is, the even numbered sections, were increased in price, to $250 per acre, to legal pre-emptors ; the entry is therefore can celled. You will note cancellation on your books and plats.
If the dwelling of Mr. Tosh be on that portion of his claim which is in section 36, township 92 north, range 46, west, and he desires to retain that part, he may be permitted to do so, upon his furnishing satisfactory proof, and paying a sum in addition to what he has paid, (that is, $547 50 additional,) to make $2 50 per acre for the portion retained.
In case he does so, the Register will issue a new certificate of the same number and date as the original, for the part retained; and the Receiver will issue a supplemental receipt for the additional payment, giving it a half number of the current series. You will note the transaction on your books, plats, and current monthly abstract, and enclose the new certificate and supplemental receipt in a special letter, referring therein to the date of this.
In case the dwelling of Tosh be not on the part in section 36, or he does not desire to retain the land on the above conditions, you will notify him to make the usual application through your office for the return of the purchase-money...
(Signed) Thos. A. HENDRICKS, Commissioner. Register and Receiver, Sioux City, Iowa.
Affirmed by Secretary Thompson, April 11, 1859.
No. 504. Where a party had a valid Pre-emption claim to land, at the time of the
location of a State Warrant, the location was void. A claimant of Pre-emption rights, who has taken the required oath, is en
titled to the benefit of the presumption that the same is true, until the
contrary is clearly proven. Acts in relation to British, French and Spanish grants, considered.
DEPARTMENT OF THE INTERIOR,
March 31, 1859. With your report of the 20th July last, was submitted the appeal of Wiley J. Vester, from your decision of the 12th September, 1857, rejecting his claim of pre-emption to lots, 2, 3 and 6, the southeast quarter of the northwest quarter and the southwest quarter of section 1, township 22 north, range 6, east, under the 5th section of the Act of Congress of 3rd March, 1851, the Act of 2nd March, 1855, and 3rd March, 1853, De Bastrop lands, Monroe District, Louisiana. On the 25th August, by letter of this Department, a reinvestigation was ordered ; and on the 27th October last, I declined to dismiss the appeal, or to order an arrest of proceedings, under the reinvestigation.
Your report of the 15th ultimo, has submitted the results of the reinvestigation, with the separate letter of the present Register and Receiver, under date of the 25th January, 1859, concurring in the opinion, that Vester substantially complied with the laws under which he claims, and ought to be allowed to enter the land, if it is yet under the jurisdiction of the Land Department. On the first hearing of the case, in September, 1856, the local officers were divided in opinion, and submitted the case to you for instructions, and it is argued by the contesting claimant, that the last judgment of the local officers on the recent reinvestigation, is but the expression of preconceived opinions; I therefore assent to a more elaborate review of the case, than would otherwise be proper. Briefly then as to facts. It is reported, that on the 20th September, 1855, the plat of the public surveys of the land in contest, was filed in the local office, the surveys in the field having been made in the first quarter of 1855. On the 20th October, 1855.
Dorcas Dinkgrave, applied to locate, or did locate, a Louisiana State internal improvement warrant on the same lands. On the 16th September, 1856, the contestants appeared at the local office, and tendered the original proof. On the 26th November, the local officers rendered adverse opinions, the Register in favor of Mrs. Dinkgrave, and the Receiver in favor of Vester. On the 12th of September, 1857, your opinion sustaining the Register, was forwarded to Monroe, and on the 17th May, 1858, you submitted the internal improvement selection, in list 50 A., reporting that no objection to approval appeared on your books. The selection was approved May 24, "subject to any valid legal rights that may exist, to any of the tracts," embraced in the list. On the 7th July following, an appeal was filed in your office, from the decision, rejecting Vester's pre-emption claim, and on the 16th July, this appeal being inadvertently overlooked, the list was forwarded from your office to Governor Wickliffe, with the advice that my approval had been made subject to any valid legal rights which may have existed at the time the selection was made known to the Register of the local land office. The appeal of Vester was reported from your office, July 20th, and my order for a reinvestigation, given August 25th, and a deed from Governor Wickliffe to John T. Ludeling, assignee of Dinkgrave, was issued August, 30, 1858, without reference to any saving or exception in the body of the deed, of prior valid legal rights to the same land.
The first point argued in support of the right of Ludeling is, that these proceedings have concluded this Department from any further action in the matter of Vester's application to enter by pre-emption. To this I cannot agree. The 8th section of the Act of September 4, 1841, gives to the States named in the first section of that Act, and others that should thereafter be admitted into the Union, a certain quantity of land, to be located within their limits respectively, in parcels of not less than three hundred and twenty acres, upon “any public land, except such as is, or may be reserved from sale by any law of Congress, or proclamation of the President, which said locations may be made at any time after the lands of the United States, in said States respectively, shall have been surveyed,”' &c.
The mere reading of this section suggests the proposition, that if Vester had a valid pre-emption claim to the land in controversy, at the time of the location of the State warrant, the location was void; the land not being of that public description to which the State is by law confined, in making locations. At the time the location of Dinkgrave was made, it is now clearly shown that Vester was living on the land, with extensive and valuable improvements, having some eight or ten field hands at work, raising fifty to one hundred bales of cotton annually, and corn in proportion; the cultivation extending to all the fractions claimed, and embracing, at one time, about one hundred and seventy acres of the land. The declaratory statement of Vester was also on file in the district office, thus giving notice to the State, in the field and in the office, that a private claim had been set up to the lands, and hence, that they were not subject to selection as public lands of the United States, if such private claim was valid. The Act of 1841 (No. 48,) has not prescribed any formal approval by the Secretary
by the several States, and the act of approval is only an office form, proper to observe before marking the selections on the official plats of the public lands, but not precluding an investigation of prior valid legal rights to any of the tracts selected. The contestant, Mr. Ludeling, refers to the Act of August