* *

3, 1854, (No. 249,) as carrying the fee of these lands to the State, on the receipt by the Governor, of the lists containing them; but the limiting clauses. of that act, restrain it from embracing and strengthening a title to internal improvement selections, if such selections fall upon lands to which there was, at the date of the selection, a prior valid legal right. As regards the claim of Vester, the proof shows that he went upon the lands before the passage of the Act of 1851, and continued to live there until his death, in August, 1858, and with his negroes, stock, and farming implements, occupied and cultivated the land from year to year, and from time to time enlarged his cultivation. The local officers report a substantial compliance with the pre-emption laws on his part, and in that conclusion I shall concur, unless it appears that they have erred. Not deeming it necessary to review the many points of objection to their conclusion, I shall notice only those that appear to be of a grave character, viz.: First, That Vester was not, in fact, the party entitled to pre-emption of the lands at the time of his application, because he was not the owner of the improvements at that time, but had forfeited his pre-emption right by the execution of a deed of certain negroes, stock, &c., "together with the place and farming utensils, the property of him, said Wiley J. Vester," dated April 23, 1855. The Department will not allow an entry when the party applying is manifestly proceeding in bad faith, or is endeavoring to obtain the land for another; but when he comes forward and takes the usual oath that he has "settled upon and improved the land in good faith, to appropriate it to his own exclusive use and benefit, and that he has not made any agreement or contract, in any way or manner, by which the title he might acquire would enure to the benefit of any person except himself," he is entitled to the benefit of the presumption that his affidavit is true, till the contrary is shown. It is not enough merely to produce testimony which gives rise to a doubt. In this case, I think the proof sustains most strongly the proposition that Wiley Vester was the owner, and was acting in good faith at the time of his application. It is true, that in 1855, he made a deed of sale to his brother, and had the slaves, stock, &c., taxed in his brother's name, but it is clearly shown that he continued to exercise ownership over the property, and control the avails of the crops from the land all the time, and was regarded by the neighbors as really the owner. The brother, Solomon Vester, was offered at the first trial as a witness, to prove that he was not the owner, and had paid no consideration for the property, but his testimony was then refused, and before the second hearing, he had deceased. On the second hearing, a probable motive for the execution of the deed is shown, and although thus disreputable conduct is developed, I think it appears, from the testimony, either that the deed was regarded by the parties at all times as a sham, or, if it had ever been recognized as valid, it had been abandoned by both before the oath was taken by W. J. Vester. The local officers do not appear to have made any objection to the claim on this account, on reporting the result of the last investigation; and I do not find sufficient reason to dissent from their conclusion.

As to the second point of objection stated, that Vester did not appear in due time, to offer proof and payment for the land, it is to be remarked that the Receiver at the first hearing, held that the period of one year, named in the law of 1851, does not commence to run against a claimant under that act, till the filing of the plat in the local office, and the Register at that time, who rejected the application for other reasons, and whose opinion you confirmed, did not state this as an objection. If such was in fact the recognized doctrine of the local office, I should not wish to disturb it, and the claimant being entitled to have his rights considered as of the first day

he appeared to make proof, viz., the 16th of September, 1856, would appear to be within the year. But beyond this, I think that the Act of 3d March, 1853, enlarges the privileges conferred by the Act of 1851, on settlers within the limits of the rejected De Bastrop Grant. The last proviso of the Act of 1853, is in these words, "That any settler who has settled or who may hereafter settle on lands heretofore reserved on account of claims under French, Spanish or other grants which have been or shall hereafter be 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 act, and the Act of 4th September, 1841, &c., &c., in the same manner as if no reservation existed." The meaning of this would be very clear were it not for the concluding words, "in the same manner as if no reservation existed." I think the most natural construction of them, is in the meaning of mere explanation and amplification of the preceding beneficial provisions of the law, and not as restrictive. I understand them to mean, that the settler, after a reservation is vacated, shall have the benefit of "this act, and the Act of 4th September, 1841," in as ample a manner as is consistent with other laws. In this view, I observe, then, that when the Act of 1853 was passed, the particular tracts involved in this controversy were as fully and completely unsurveyed public lands, as on the 24th May, 1856, they were surveyed public lands; and when, in the first quarter of 1855, they were surveyed, Vester was settled upon and cultivating them. The right conferred by the Act of 1853, on a settler who had settled and was then residing on the De Bastrop lands, was, to say the least, after survey in the field, as ample as he could have claimed under the Act of 1841.

That the Act of 1853 should be regarded as applicable to the De Bastrop lands, is shown by the language of the Act of March 2, 1853, declaring it plainly to be so. Vester was a settler, and cultivated on the 3d March, 1853, and on the 2d March, 1855, and at these dates the land was unoffered public land. I am therefore of the opinion, that these laws conferred on him a preference-right to enter the lands at any time before they were offered at public sale, and this right could not be defeated by the intervening location of a State internal improvement warrant.

The series of laws referred to, are specially favorable to settlers on the De Bastrop lands. First, the Act of 1851, then the Act of 1853, enlarging their privileges further, and then that of 1855, giving therein a still further and very unusual privilege of entering, under certain circumstances, a quantity greater than one hundred and sixty acres. In harmony with these liberal provisions, the second section of the Act of 29th June, 1854, protected from prejudice, by the location of certain claims thereby conferred, such tracts of land as were in the actual possession of settlers.

From all these acts it is evident, that Congress intended the amplest protection to actual settlers, in their preference-right to enter their lands thus possessed and cultivated; and a faithful construction of the law secures to W. J. Vester the preference-right to enter all the lands claimed in his declaratory statement, which right, by reason of his death pending the controversy, has devolved upon his heirs.

Herewith I return the papers in the case.

Commissioner of the General Land Office.

J. THOMPSON, Secretary.

TITLE 3.]

No. 505.

PRE-EMPTION CLAIMS.

The Department will not determine conflicting claims arising under applications to locate State Warrants.

The owner of three hundred and twenty acres of land cannot acquire a Pre-emption right under the Act of 3d March, 1853, giving settlers on British, French and Spanish grants a preference right of entry. DEPARTMENT OF THE INTERIOR,

May 11, 1859. Sir: In the matter of contest between James M. Faust and Albert Rust, respecting a certain tract of land lying within the limits of the "Maison Rouge Grant" in the Monroe District, Louisiana, claimed by the former under the Acts of 4th September, 1841, (No. 48,) and 3d March, 1853, (No. 222,) and by the latter in virtue of his application to locate. Louisiana internal improvement scrip thereon; having duly considered the facts of the case, the papers are herewith returned.

The rights of the parties arising under different applications to locate Louisiana internal improvement warrants, upon the land in controversy, are not cognizable by this Department, and no jurisdiction will be exercised over them. Where land, subject to State selection under the Act of 1841, is selected, the same may be approved in favor of the State without deciding any question as to the interest of the locator or State agent. All questions of title, arising under location of State warrants, are necessarily and properly determinable by the State authorities.

Unless the prior valid rights of Faust had attached to the land in question, it is not controverted that the same was and is subject to selection by the State under the Act of 1841.

With regard to the claim of Faust to a pre-emption right to this land, it appears that he settled in 1843, and has since continuously resided thereon. That after the passage of the Act of March 3, 1853, to wit, in September of that year, he applied and was permitted to locate Louisiana That this location internal improvement warrant, No. 716, on the same.

was, in 1856, rejected by the Commissioner of the General Land Office, upon the ground that the land was not subject thereto. That before such rejection, to wit, in January 1855, said Faust filed his declaratory statement in the land office at Monroe, Louisiana, embracing the land he now claims under the Acts of 1841 and 1853.

It has already been decided in another case, that the law requires no declaratory statement of claimants under the Act of 1853, and the fact of Faust's filing such notice, is only material as showing the date of the commencement of his claim under the pre-emption law, he having previously claimed under a scrip location. The contest and appeal in the case, rendered a tender of payment for the land on the part of Faust, unimportant. Again, in June, 1856, it appears that said claimant made and subscribed the affidavit required by the 13th section of the Act of 1841, before the Receiver at Monroe. Now the question is, was said Faust at this date, capable of acquiring a right of pre-emption, or was he disqualified by reason of his ownership of three hundred and twenty acres of land.

In the case of Shirley against Deiffendorf, which was returned to your office on the 14th ultimo, I decided that "the intention of the pre-emption law was manifestly to restrict the benefits conferred by it to those who owned less than that quantity of land, (i. e., three hundred and twenty acres,) and no right of pre-emption could be acquired by one who was the proprietor of a greater quantity than that specified," and further, that "if it should appear that the former settler had merely temporarily divested

PRE-EMPTION CLAIMS.

[TITLE 3. himself of title to the excess for the purpose of evasion, and to relieve himself of his disability of pre-emption, intending to resume the proprietorship thereof, after being allowed to pre-empt government land, such a transaction would be regarded as fraudulent, and his claim should be rejected." As respects claimants under the Act of 1853, I concur in opinion with you, that we must look to the Act of 1841 for a further description of the persons entitled, than that given by the Act of 1853," and that persons excluded by the one are not provided for by the other.

What then were the facts with regard to the ownership by Faust of a greater quantity of land than the law allows a pre-emption claimant to hold, at the time he made his affidavit in June, 1856. It appears from the tract books in your office, that on the 7th December, 1854, Louisiana internal improvement warrant, No. 91, was located by said Faust on a tract of land embracing three hundred and twenty-three, fourteen hundredths acres. There is among the papers on file a copy of a deed from James M. Faust to his son, Marion M. Faust, of date 29th of September, 1856, conveying a tract comprising three hundred and seven, thirty-one hundredths acres, one subdivision of which was located with said warrant, No. 91, by said James M. Faust.

There is also on file a certificate of the Recorder of Ouchita Parish, Louisiana, which sets forth that J. M. Faust on the 31st December, 1858, mortgaged to J. F. Pargaud certain lands, being three hundred and fiftynine, sixteen hundredths acres, embracing in part the land located by said Faust on the 7th December, 1854.

It appears that portions of the lands specified in said deed and mortgage, were selected by the State of Louisiana as swamp lands. The date at which Faust acquired title to said swamp land is not known.

In my letter to you of 31st March last, in relation to the claim of W. Vester, I remarked that a party "is entitled to the benefit of the presumption that his affidavit is true, till the contrary is shown." I am unwilling to find so grave a fact as that a claimant has sworn falsely, unless upon the clearest and most satisfactory proof.

I have therefore to direct that this case be remanded to the local office, with instructions to the Register and Receiver to appoint a time and place, giving due notice thereof to the parties concerned, for taking and hearing further proof as to the ownership by said Faust of more than three hundred and twenty acres of land at the date of his affidavit, to wit, 3d June, 1856.

If, at that date, it shall appear that said Faust was the proprietor of a greater quantity of land than three hundred and twenty acres, his claim to the right of pre-emption must be disallowed.

Very respectfully, Commissioner of the General Land Office.

J. THOMPSON, Secretary.

No. 506.

The Act of 2d March, 1849, (No. 166,) granting Swamp Lands to Louisiana, does not require the issuance of a patent therefor.

Where prior valid rights existed, a patent may issue thereon, notwithstanding the land had been approved to the State.

DEPARTMENT OF THE INTERIOR,
September 28, 1859.

Sir :-Your report of the 10th instant, relative to the pre-emption claim of John H. Rainbolt, sets forth that "Rainbolt settled on the land about

the 10th day of January, 1848, and proved up and received his certificate on the 10th day of February thereafter. The certificate was, however, erroneously issued for the southwest quarter, (instead of the southeast quarter,) of the section, and the sale so reported in the Register's abstract. This tract, i. e., the southeast quarter section 3, township 4 north, range 6, east, was afterwards embraced in a list of swamp selections, and patented to the State. In view of these facts, you inquire, whether a patent could issue to the pre-emption claimant, while the patent to the State is outstanding?

The

The Act of March 2, 1849, under which this tract was selected, provides for the approval of the lists of selected lands, "so far as they are not claimed or held by individuals," and that "on that approval, the fee simple to said lands shall vest in the said State of Louisiana." No patent is requisite to pass the title to the State, and none has issued in this case. land in question was held by an individual, and it appears that his prior legal right has been established thereto. The approval of this tract to the State, would therefore have been against law and void, even had it not been expressly excluded from such approval by the language employed, by which lands to which prior valid legal rights had attached, were excepted.

A patent may therefore issue to the pre-emptor, after the governor shall have been notified of the error committed, in including said land in the swamp list.

Jos. S. Wilson,

Very respectfully,

J. THOMPSON, Secretary.

Acting Commissioner of the General Land Office:

No. 507.

United States lands cannot be selected as a portion of the grant, by the eighth section of the Act of 1841, to a State, for internal improvements, until after the land is surveyed.

A pre-emptor, who is entitled to the entry of one hundred and sixty acres, under the Act of Congress of 3d March, 1853, as a settler before survey, has a right superior to that of a Claimant under the State, though the latter may have claimed and cultivated a portion of the tract adversely, at the date of survey.

When the Register and Receiver, at a land office, have issued a public notice to settlers, relative to filing declaratory statements, under the Act of 1853, such notice being necessary, in order to the proper execution of the land laws by those officers, will be regarded as having been issued by the proper authority, and should be respected by the officers of the United States, when dealing with the parties to whom the public notice was addressed.

DEPARTMENT OF THE INTERIOR, Washington, December 9, 1859. Sir-The case submitted with your report of the 5th October last, wherein an appeal has been taken from your decision of the 19th April, 1859, in favor of the right of Christian J. Megerle, to enter by pre-emption, the northwest quarter of section 21, township 4 north, of range 8, east, in Stockton District, California, appears to be one of importance, as involving principles, which are applicable to many other cases in the same district. It has been ably argued, and I have given it a careful consideration, and I now proceed to state my conclusions, sustaining the decision of your office.