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In his reply to the foregoing report, dated the 30th October, 1857, Secretary Thompson expresses his concurrence in the construction which is placed upon said Acts, with the following qualification :-"I am inclined to the opinion that, looking to the evident intent of the statutes, we should be fully justified in dividing the mail route into sections of twenty miles each, and allowing the contractors to pre-empt one station in each of said sections, it being shown, that each station has been selected in good faith, and not for speculative purposes, and that no two stations are within ten miles of each other. A modification is, therefore, suggested in the instructions heretofore issued. Very, &c., J. THOMPSON, Secretary."
Commissioner of the General Land Office.
No. 510. To constitute a right under the law granting Pre-emptions to mail contrac
tors, the route must form a part of a system stretching laterally across the territory, &c.
GENERAL LAND Office,
March 31, 1858. Sir:-I have the honor, herewith, to enclose you all the papers in relation to the claim by pre-emption, under the Act of 3d of March, 1855, (No. 279,) making appropriations for the service of the Post Office Department, (Statutes for 1855, p. 684,) of Preston Robert, Jr., and William Stewart, mail contractors on route No. 15030, from Nebraska City, Territory of Nebraska, to Marysville, Kansas, and thence to Lecompton; an appeal having been taken from the decision of this Office, adverse to the rights of pre-emption on said route. The question to be determined is preliminary, and is, whether any right of pre-emption can attach under the act aforesaid to any portions of the public lands on said route. By Circular of the 11th of September last, approved by you, it is declared that to constitute a right of pre-emption under this law, the mail route, on which the claim is based, must form a part of a system stretching laterally across the territory, being a link in or part of a connected route, from the line of the States west of the Mississippi, to the Pacific.” This Office has decided, that the route, No. 15030, is not a link in or part of a connected route, from the line of the States west of the Mississippi, to the Pacific. It will be seen, from the diagram herewith enclosed to your Department, in letter of PostmasterGeneral, of the 27th instant, that the point of departure or eastern terminus of the great route leading to Salt Lake City, and thence to the Pacific, is Independence, Missouri, and the intermediate stations on said route, are Marysville, “Fort Kearney,” “Fort Laramie,” and “Salt Lake," etc. etc., and this Office holds that the first link in that route is the portion thereof between Independence and Marysville, the point where the two branches of route No. 15030 meet, and that route No. 15030 is merely a feeder of said great route, but not a link in or part thereof. From this decision, the Hon. Andrew Stewart, attorney for the claimants has taken an appeal, and has expressed a desire to have the case submitted to the Attorney General. All of which is respectfully submitted for your consideration and such action thereon as you may direct.
With great respect,
Thos. A. HENDRICKS, Commissioner. Hon. Jacob Thompson, Secretary of the Interior.
Concurred in by Secretary Thompson, who declined referring the case to the Attorney General, January 26, 1859.
ment of Indian title.
May 15, 1855. The subject has heretofore been brought to the notice of the Department by the Postmaster-General, in the case of Jacob Hill, and it was decided that no pre-emption right could attach, under that provision in said law, to any lands to which the Indian title was not extinguished, or to such as may have been ceded to the United States in trust for specified purposes, beneficial to the Indians.
R. M‘CLELLAND, Secretary. Commissioner of the General Land Office.
Administrators, executors or heirs, are not required to live on the land of a deceased settler, in order to consummate his right. The law only requires the "executor or administrator of the estate of such party, or one of his heirs, to file the necessary papers” to complete the claim.-(Commissioner's letter to Register and Receiver, Lecompton, Kansas Territory, June 28, 1858.)
Conveyances made for lands entered under pre-emption and graduation laws before the issuing of patent, will not be recognized by the Commissioners of the General Land Office.-(Letter to E. H. Ellis, July 26, 1856.)
Moving from his own dwelling in a town or city, does not debar a pre-emptor's right.-(Commissioner's letter to Register and Receiver, Superior, Wisconsin, January 12, 1857.)
The preservation, by our native-born citizens, of family records of births, &c., is not so universal as to justify us in insisting upon the production of such a record as the only admissible evidence of native citizenship. We must, therefore, where it is alleged under oath, that such record does not exist or is not accessible, resort to other and the next best and most readily available testimony; which may be the affidavit of a respectable person, setting forth his knowledge of the claimant, &c.(Commissioner's letter to Register and Receiver at Chatfield, April 20, 1857.)
The Act of 27th September, 1850, does not prevent donees from pre-empting one hundred and sixty acres, under the Act of 4th September, 1841.--(Commissioner's letter, December 1, 1857.)
By Act of 17th July, 1854, the pre-emption privilege was extended to unsurveyed lands in Oregon.-(Commissioner's letter to Receiver, Oregon City, December 3, 1857.)
Where the husband has settled, and filed a declaratory statement, and disappears mysteriously, having either been killed, or having abandoned his family, the widow may make settlement, filing, &c., de novo, and prove up on same tract.-(Commissioner's letter to Register and Receiver, Faribault, Minnesota, September, 26, 1857.)
Affidavit of pre-emptor, if contradicted, the facts will be inquired into, after notice. -(Commissioner's letter to Register and Receiver, Red Wing, Minnesota, July 6, 1855; and to Secretary of the Interior, November 19, 1855.)
Declaratory statement need not be filed in person. The settler must file a written statement signed by himself or his duly authorized attorney. It may be transmitted by mail, or entrusted to an agent, but in either case, at the risk of the settler.(Commissioner's letter to S. A. Lewis, Nebraska city, October 23, 1857.)
Entries, when made in a district to which the land does not belong, may be confirmed under Act of 26th June, 1856.-(Commissioner's letter to Officers at Stillwater, April 30, 1855, and to Minneapolis, July 13, 1855.)
The fact of persons having heretofore had the benefit of the Act of 4th September, 1841, shall interpose no bar to their obtaining the benefits of the Act of 30 March, 1853, in California. (See proviso, 6th sec., No. 224.)
No. 512. Mail Contractors are not entitled to Pre-emption on a route not a link or
part of a line to the Pacific.
DEPARTMENT OF THE INTERIOR,
October 26, 1858. I herewith return the papers received with your several letters of 6th February, 23d March, 19th July, and 16th September last, relative to various entries and locations by John B. and William Bennett, along mail route No. 15002, from the Nioway river, in Nebraska Territory, to the Nemeha agency, in Kansas, which said entries and locations were permitted by the Register and Receiver at Omaha, Nebraska Territory, Land Office, under the Act of March 3, 1858. For the reasons stated by you in your
which runs in a northerly and southerly direction, is not a link in or part of a connected route, from the line of the States west of the Mississippi, to the Pacific,” I concur in opinion with you, that the Messrs. Bennett are not entitled to the right of pre-emption under said act. .
J. THOMPSON, Secretary. Commissioner of the General Land Office.
A pre-emption claimant before entry, has no right to sell timber from the land. The Act of 3d March, 1831, imposes a fine of triple the value of the timber sold by a trespasser, and twelve month's imprisonment.-(Commissioner's letter to A. S. Collins, Algona.)
Pre-emption, by one of the heirs, or by the legal representative of a deceased settler, under 2d section of the Act of 3d March, 1843, (No. 72,) in case the settler dies before the expiration of the time for filing, and the executor or administrator could not qualify before the expiration thereof, would have the same length of time to file as intervened between the settler's death and the expiration of his legal time for filing, had be lived.--(Commissioner's letter to R. S. Stevens, May 3, 1858. Commissioner's letter to J. W. Rogers, May 4, 1859, Commissioner's letter to A. W. Diggs, June 13, 1859.)
Pre-emptions running into two land districts, cannot be allowed. The settler must be restricted to the part containing his residence.--(Commissioner's letter to Register and Receiver, Red Wing, Minnesota, August 22, 1855.)
Where public lands are in controversy, and the testimony has been received at the District Office prior to the day of public sale, such lands will not be offered until the cases are determined, and a special order issues directing how they shall be disposed of.--(Commissioner's letter to Register and Receiver, Nebraska city, August 24, 1858, and to Register and Receiver, Omaha, Nebraska Territory, June 13, 1859.)
Head of a Family.
It is held, that if in consequence of separation or desertion by the husband, the wife becomes the head of the family, and the fact be established by testimony satisfactory to the Register and Receiver, no reason exists why she should be debarred the right of pre-emption.-(Commissioner's letter to E. L. Parsons, April 27, 1857.)
In computing the twelve months from date of settlement, both days are allowed the pre-emptor, e. 9., if he settled on 1st January, 1855, he may prove up at any time during the day of 1st January, 1856.--(Commissioner's letter to Register and Receiver, Hudson, Wisconsin, May 19, 1855, and to Register and Receiver, Chariton, Iowa, October 4, 1856.
Held, that where the party claiming the right of pre-emption is prevented by an act of Providence from making proof, &c., in due season, he does not lose his right. --(Commisioner's letter to Register and Receiver, Fort Des Moines, Iowa, December 11, 1856.)
CIRCULARS OF INSTRUCTION. No. 513. Circular instructions under the Graduation Act of August 4, 1854.
GENERAL LAND OFFICE,
October 30, 1854. Gentlemen :-In consequence of numerous questions that have arisen under the act entitled “ An act to graduate and reduce the price of the public lands to actual settlers and cultivators," approved August 4, 1854, (No. 251,) it is deemed proper to issue this Circular under said act, superseding entirely that of the 30th August last.
A copy of the act, which took effect from its passage, is hereto appended. It applies to all the public lands of the United States, with the following exceptions, to wit : those reserved to the United States in acts granting lands to States for railroads or other internal improvements, where the existing minimum at the date of said act was more than $1 25 per acre; mineral lands held at over $1 25 per acre; lands reserved from sale by act of Congress, order of the President, or which may have been appropriated for any purpose whatever; lands which are required by treaty stipulations to be sold for the benefit of Indians; and those which are required to be disposed of under special legislation of Congress.
The following persons, and those only, can enter under the provisions of this act, to wit: 1st, pre-emptors ; 2d, persons who were, at the date of the act, actually settled thereon, but who cannot prove a pre-emption, or those desirous of at once becoming actual settlers on and cultivators of the lands; and, 3d, those who want them for the use of an adjoining farm or plantation, owned or occupied by him or herself. Minors, married woman, or others ordinarily or legally incapable of contracting, cannot enter lands under the provisions of the act.
Lands subject to the operation of this law are also subject to pre-emption, at the graduated price, under the provisions of the act of September 4, 1841, (No. 48.) Where settlers claim any of these lands by pre-emption, under that law, they must file, or have filed, their declaratory statements in due time after the settlement, and may prove up their rights, and make payment at the graduated price within the extended period given by the second section of said act, except towards the close of each period of graduation, when they must be paid for within thirty days preceding the next graduation or reduction that shall take place, or forfeit their claim, (unless the year allowed by the Act of 1841 has not expired,) and the land settled on by
Graduation prices in Pre-emption cases.
Where a settlement is made on graduated lands, the settler may have a pre-emption right to the land at the graduation price, until the commencement of the thirty days prior to the time when the land claimed will pass into the next succeeding class. -(Commissioner's letter to Register and Receiver, Menasha, Wisconsin, July 30, 1857.)
them will be subject to private entry. If not purchased at private entry, however, before the next graduation or reduction has taken place, such lands will again be subject to pre-emption as aforesaid at such reduced price. This Act provides, however, that nothing in it “ shall be so construed as to interfere with any right which has or may accrue by virtue of any act granting pre-emption to actual settlers upon public lands;" therefore, any right of preference which may have attached, or may hereafter attach, under the Act of March 27, 1854, entitled “ An act for the relief of settlers on lands reserved for railroad purposes," for lands outside the six and within the fifteer mile limits, where the minimum of $1 25 was not increased, may be paid for at the graduated price within the time prescribed by the said Act of 1854, except towards the close of each period of graduation, when they must be paid for within thirty days preceding the next graduation or reduction, or the claim be forfeited. All claims to land of the latter character preferred so near the close of any period of graduation as to diminish the time which the parties would otherwise have had for the entry of the same, and which shall not have been consummated or entered prior to the thirty days preceding such reduction of the land to the next lowest grade, are not forfeited, but may be entered within the periods allowed by the said Acts of 1841 and 1854, but in such cases the usual minimum must be paid, viz: $1 25 per acre. All entries, by preemption or otherwise, under the provisions of this act, must be in a compact body, by legal subdivisions, of tracts adjacent to each other, the same as under the pre-emption act of 1841, except where the land is claimed for the use of an adjoining farm or plantation, when it must adjoin said farm or plantation, and form with it such compact body as aforesaid.
All lands not claimed under the provisions of this act, as pre-emptions, or for settlements existing at the date of the law, or for actual settlement and cultivation, or as a constituent part of a farm or plantation, will be subject to the laws regulating the sale or location of lands at the ordinary minimum price of $1 25 per acre.
Parties entitled to the provisions of this act, cannot locate warrants or scrip on the land applied for, unless they take acre for acre; that is, a fortyacre warrant or scrip can only take a forty-acre tract, or its equivalent; an eighty-acre warrant can take an eighty-acre, or two contiguous and adjacent forty-acre tracts, forming a compact body of eighty acres : and so on, without reference to the graduated price of the land.
Where persons, capable of contracting, have settled upon and cultivated lands subject to the operations of this act as above explained, and are entitled to pre-emptions, they can enter one hundred and sixty acres under the second section of this act, and an additional quantity adjacent thereto, on making affidavit before the Register or Receiver that they want it for the use of their adjoining farm or plantation, as required by the third section.
Land which was occupied by an actual settler thereon at the date of the law is not regarded as liable to entry by another for settlement thereon, or for the use of a farm, as it was evidently the intention of the law to protect persons so situated, and not to place them at the mercy or in the power of those who might desire to settle thereon, or of those who would thereby add the improvements of another to their existing farms. To avoid, therefore, as far as practicable, interferences of this character, a clause to that effect is inserted in the form of affidavits, hereto appended. Such parties, so settled, are entitled to enter at the graduated price, and should do so at the earliest possible period, as this protection does not extend so as to exclude persons who may desire to enter the land at the usual minimum of