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subsequently obtained to be laid before the President of the United States upon an appeal to him from such decision : upon its last sheet, will be found an indorsement in the words and figures following:
February 11, 1857. I have duly considered the appeal from the decision of the Secretary of the Interior, in the matter of the grant of certain lands to Wisconsin in aid of the improvement of the Fox and Wisconsin rivers, and the argument of council for the State of Wisconsin. Although my power to reverse the decision of the Secretary of the Interior, under the special provisions of the law in this case, may well be questioned, I deem it proper to state that the decision of the Secretary is, in my judgment, sound, and should be regarded as conclusive.
You will be pleased to have the final Executive determination of the question, communicated to the State authorities.
R. M‘CLELLAND, Secretary.
SYNOPSIS OF RULES ADOPTED BY THE GENERAL LAND
OFFICE, FOR THE RAILROAD DESK.
[First. By the Act of 4th September, 1841, (No. 48,) “no sections of lands reserved to the United States, alternate to other sections granted to any of the States, for the construction of any canal, railroad, or other public improvement,” are subject to the operations of said act. But
The Chicago and Rock Island Railroad Company and Railroad Bridge Company, cannot lawfully enter upon and use, for the purpose of a road, or for any other object, the military reservation of Rock Island, under pretence of authority from the State of Iowa.---(Opinion of Attorney-General, August 21, 1854, vol. 6, p. 670.)
In reference to the northerly line" of railroad from Fon-du-lac to the State line in Wisconsin, for which lands were granted by the Act of 3d June, 1856, it has been decided that “northerly" means as near north as practicable, and does not admit of deflections from the meridian, only in case of any insuperable natural obstacle, and in that view the entire line must not deflect in its general course on account of such natural impediment, and then only not exceeding more than half a point or five or six degrees east or west of the points of intersection of the meridian of Fon-du-lac with the State line, which division has met the approval of the Department.--(Report of chief clerk of General Land Office for July, 1856.)
Pre-emption Claims on Lands Reserved for Railroads. The Commissioner of the General Land Office, has made the subjoined decision :61. Pre-emption claims upon any lands withdrawn from market for railroad purposes, where the settlements were made in good faith with the Government before the passage of the law making the grant, and prior to the definite location or surveying and staking off of the route of the road, are subject to consummation within the period fixed by law for proving up and entering offered and unoffered lands at one ordinary minimum of $1 25 per acre, and payment may be made in specie or with military bounty-land warrants.
“2. After the survey and staking off of any route, the pre-emption right ceases on the railroad sections; but from and after that date, the United States reserved sections, within the six-mile limits of the route, are pre-emptible at a minimum of $2 50 per acre, till the date of final settlement of the alternate sections to which the railroad is entitled.
"3. From the date of the final allotment aforesaid, till the date of offering the United States reserved sections at public sale, pre-emption rights to lands in such sections cannot attach ; but after the offering, the reserved sections again become pre-emptible at a minimum of $2 50 per acre.
14. When the $2 50 minimum attaches, bounty-land warrants, under the Act of 3d March, 1855, cannot be used in part payment, there being an express inhibition of such use in the statute; but warrants issued under prior acts of Congress may be so used-one warrant only to be laid on a single pre-emption claim, at the rate of $1 25 per acre, and the balance required to make up the $2 50 to be paid in specie.”
Pre-emption in Florida.
If a party settled prior to the survey of the portion of the railroad route including his claim, and he presents a good claim or right by full compliance with law, he has a right to tbe land at the graduation price.--(Commissioner's letter to the Register and Receiver, Newnansville, Florida, September 18, 1857.)
Secondly. The Act of 3d March, 1853, (No. 222,) and Act of 27th March, 1854, (No. 234,) materially modify the restrictive or interdictive clause in the Act of 1841. The Act of 3d March, 1853, steps in and partly takes off the inhibition contemplated in Act of 1841, by extending the pre-emption laws, at a price of $2 50 per acre, “over the alternate reserved sections of public lands along the lines of the railroads of the United States," where the party had settled and improved the land " prior to the final allotment of the alternate sections to such railroads, by the General Land Office.”
Pre-emptions under this Act of 1853, attach within the following periods, to the United States reserved sections :
1. From the date of the “ definite location" of the road, (viz: according to Attorney-General's opinion, February 16, 1857, when the route is surveyed and staked off on the ground, until the “final allotment,” by the General Land Office, of the railroad sections, and that is the date of official list certifying the latter sections to the State.
We take the definite location" of the route, as the period when this · Act of 1853, with its $2 50 price applies, for the reason, not only that
such seems to be the current of official decisions, but because, up to such 66 definite location” there really are no United States alternate sections so set apart, as would be notice, or grounds of inquiry to purchasers.
2. Pre-emptions will not attach under this law, to the United States alternate reserved sections, after the date of “ final allotment,” to the day of offering at public sale, for the reason that the interdicting clause in the Act of 1841, again applies to the United States alternate reserved sections aforesaid, the Act of 1853 only taking it off up to the period of “ final allotment.”
3. Pre-emptions will attach at $2 50 per acre, to the United States alternate sections, after they have been offered at public sale, under decision in letter to Register and Receiver, at Dixon, Illinois, October 19, 1852.
Thirdly. The Act of 27th March, 1854, makes no discrimination between the United States alternate reserved sections and the railroad sections, but takes cognizance of, and awards the pre-emption privilege to actual settlers, who may be found upon either or both sections, when their settlements were made before the withdrawal of the lands for railroad purposes, and that, too, at $1 25 per acre, for it declares, “ that every settler on public lands withdrawn for railroads, and who had settled thereon prior to such withdrawal, shall be entitled to pre-emption, at the ordinary minimum, to lands settled on and cultivated by them."* It is also held, that there is no limitation of the length of time during which settlers had occupied such lands, previous to the withdrawal thereof for railroad purposes, to entitle them to the benefits of this act.
Fourthly. By the terms of the Acts of 3d March, 1853, and 27th March, 1854, it is necessary for each class of settlers contemplated in said act, to prove up and pay for the lands settled on prior to the offering of the United States reserved sections at public sale ; otherwise, any claim based on such settlement will be invalid, and will be no impediment to the offering of lands so settled on, under proclamation. Where pre-emptions exist on lands that had been offered between six and fifteen mile limits, they must be proved up before their restoration to market.
Fifthly. The laws and decisions aforesaid, fixing the price of reserved
* Where the lands outside of six mile limits had graduated in price before the withdrawal, the graduation price of that date applies, under Act of 27th March, 1854. See Circular, October 30, 1854, and Act 3d March, 1855. (No. 277.)
sections at $2 50, after the surveying and staking off of the routes, and up to the date of “ final allotment,” and again after public sale, apply only to lands within the six mile limits. Outside of the six mile limits, the United States sections are subject to pre-emption under the same conditions of time, but at $1 25 per acre.
Sixthly. The pre-emption privilege of the Graduation Act of 4th August, 1854, does not extend to any lands within the six mile limits, reserved for railroad purposes, there being an express interdict in that law, so far as those lands are concerned. The public lands outside the six mile limits, and within the fifteen mile limits, when released and restored to market, take their position on the same footing as other public lands, and if they Lave graduated in price, are, of course, liable to be sold at the proper graduation, or to be pre-empted. But from the date of withdrawal up to such restoration, lands are not subject to graduation entry. The act granting land for railroad purposes, removes the land withdrawn in pursuance thereof, from the operation of the Act of 4th August, 1854, (No. 251.)]
GENERAL LAND OFFICE,
March 19, 1858. Gentlemen :- I have received the letter of the Register, of 3d inst., asking instructions relative to pre-emptions along the route of the " Minnesota and Pacific railroad, and in compliance with his request, I have to communicate to you the following general rules.
1st. Pre-emption claims upon any lands withdrawn for railroad purposes, where the settlements were made in good faith, before the passage of the law making the grant, may be proved up and consummated under the general pre-emption laws, (or under the special Act of 27th March, 1854, (No. 231,) where declaratory statements were not filed in time,) at $1 25 per acre.
2d. Where the settlements were made after the withdrawal of the lands for railroad purposes, where such withdrawal is conditional, and prior to the definite location of the route, by surveying and staking off the same on the face of the earth, claims made thereby upon either even or odd sections, are subject to consummation within the period fixed by law, for proving up and entering offered and unoffered lands, at the ordinary minimum.
3d. After the surveying, marking and staking off of any route, the preemption right ceases on the railroad sections, within the six mile-limits of the road, but from and after that date, the United States reserved sections within said limits are subject to pre-emption at a minimum of $2 50, per acre, until the date of the “ final allotment” by the General Land Office of the actual railroad sections to the State or Territory.
4th. From the date of the final allotment, till the date of offering the United States reserved sections, within six mile limits, at public sale, pre-emption rights to lands in such sections cannot attach by virtue of settlement, made after such " allotment, but after the offering aforesaid, the United States reserved sections again become pre-emptible at a minimum of $2 50 per acre.
5th. Pre-emption claims upon either even or odd sections, outside of the six mile and within the fifteen mile limits, based upon settlements made prior to the selection of alternate sections in that tier, by the Agent of the State or Territory, in pursuance of the 1st section of the Act of 3d March, 1857, are valid, and may be proved up in the manner specified in rule second, herein before written.
6th. After the selection aforesaid, and an official notification thereof to the Register and Receiver by the State or Territorial agent, the right of pre-emption settlement ceases upon the section so selected, and the alternate sections in that tier, remaining to the Government, continue pre-emptible on a footing with other bodies of lands not affected by railroad grants, except* in cases (not applicable to Minnesota,) where the lands had graduated in price, before the withdrawal, and in such cases they are not preemptible at the graduation price until restored to market.
The foregoing rules, it is understood are not applicable, and do not give any rights to claimants who may have made settlements on the bodies of land within six or fifteen mile limits of railroad routes in Minnesota, during the period of four months absolute withdrawal, in pursuance of the instructions contained in my Circular letter of 22d June, 1857.
Yery respectfully, &c.,
Thos. A. HENDRICKS,
Commissioner. Register and Receiver, Stillwater, Minnesota Territory.
the Act of May 15, 1856, (No. 288,) are conditional grants in præsenti, in the nature of a float, which do not attach to any particular parcel of the public lands, until the necessary determinative lines of railroad shall have been definitely fixed.
December 19, 1856, Sir:--Your communication of the 18th of October, referring me to the Act of Congress of May 15, 1856, (No. 288,) granting lands to the State of Iowa, for railroad purposes, submits thereon the single question, “whether the said Act is a grant in praesenti of the alternate sections within the six miles' limits of the several roads; or, whether such grant does not await the period when the lines or routes of said roads are definitely fixed, before it attaches to any particular land ?”
The material parts of the Act referred to, are as follows:-" That there be, and is hereby granted to the State of Iowa, for the purpose of aiding in the construction of railroads, every alternate section of land, designated by odd numbers, for six sections in width on each side of said roads. But in case it shall appear that the United States have, when the lines or routes of said roads are definitely fixed, sold any section, or any part thereof, granted as aforesaid, or that the right of pre-emption has attached to the same, then it shall be lawful for the agent or agents, to be appointed by
* This exception has been overruled. The Commissioner holds that the lands outside of the six mile limits of a railroad route, are not affected in price by the land grant, up to the date of selection by the State Agent of alternate sections in the nine mile tier ; all lands in such tier are subject to sale at the price which attached at the date of withdrawal, and after such selection, the sections remaining to the United States in such tier, continue subject to sale, as before, and not until their restoration to market will they graduate again, if they had graduated at the date of withdrawal.