Abbildungen der Seite
PDF
EPUB

Department the twenty-five hundred dollars appropriated "for collecting statistics of mines and mining," by act of Congress approved July twenty, eighteen hundred and sixty-eight, and that the Secretary of the Treasury be required to disburse the same as provided for in said act. Approved, March 3, 1869.

No. 239 B.--A Resolution extending the time for the completion of the first twenty miles of the Cairo and Fulton Railroad.

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That in case the Cairo and Fulton Railroad Company shall complete the first section of twenty miles of said road by the twenty-eighth day of April, eighteen hundred and seventy, and the Secretary of the Interior shall be satisfied of such completion, then the said company shall be entitled to its lands in all respects and to the same extent as it would have been had said twenty miles been completed by the twenty-eighth of July, eighteen hundred and sixty-nine, as provided by law relating to said railroad company approved July twenty-eighth, eighteen hundred and sixty-six.

Approved, March 3, 1869.

No. 240 B.

PART FOURTH.

TITLE I.

Disposal of Public Lands.

Circular No. 26.

From the General Land Office, showing the manner of proceeding to obtain title to public lands, by purchase, by location with warrants or agricultural college scrip, by pre-emption and homestead, issued March 10, 1869.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Washington, D. C., March 10, 1869.

The following is communicated in reference to the manner of acquiring title to the public lands under different laws of Congress.

There are two classes of public lands, the one class at $1.25 per acre, which is designated as minimum, and the other at $2.50 per acre, or double minimum.

Grants of public lands.

The provision in the acts of Congress establishing territorial governments respectively for Oregon and Washington Territories, confirmed the title of the St. James Mission to the lands occupied by it in those territories, at the date of either of the acts.-(Opinion of Attorney-General, vol. 9, p. 339.)

The subsequent declaration of a military reserve, embracing the buildings and enclosed grounds of the mission, could not divest the right thus perfected.-Ibid.

When the United States, by a legislative grant, gives land for public purposes, all the title which the United States had at the time of the grant, or may afterwards acquire, vests in the grantee, unless the grantee has done something in the mean time which estops him from claiming.—(Opinion of Attorney-General, vol. 9, p. 346.)

A State to which land is granted by act of Congress cannot accept the benefits of the grant and repudiate its restrictions.-Ibid.

Where there is a conflict between the titles derived from the same source, either of which would be good if the other were out of the way, the elder must prevail.-(Opinion of Attorney-General, vol. 9, p. 253.)

A grant by Congress does of itself, proprio vigore, pass to the grantee all the estate of the United States except what is expressly excepted.-Ibid.

Under the act of 28th September, 1850, granting to the State of Arkansas all the swamp lands within her limits, the title vested in the State before a patent issued.Ibid.

Title may be acquired by purchase at public sale, or by ordinary "private entry," and in virtue of the pre-emption and homestead laws.

1. At public sale where lands are "offered" at public auction to the highest bidder, either pursuant to proclamation by the President, or public notice given in accordance with directions from the General Land Office.

BY "PRIVATE ENTRY" OR LOCATION.

2. The lands of this class liable to disposal are those which have been offered at public sale, and thereafter remain unsold, and which have not

The general description of all swamp lands within the limits of the State, was certain and definite enough for purposes of notice.-Ibid.

Where Congress after the grant of September 28, 1850, made another grant to the State of Arkansas, to aid in the construction of a railroad, under which a part of the lands previously granted under the denomination of swamp lands was included, it was held that the State took the lands under the first grant.-Ibid.

A grant of public land by statute is the highest and strongest form of title known to our law. It is stronger than a patent, which may be annulled by the judiciary upon a proper case shown; whereas even Congress cannot repeal a statutory grant. —(Opinion of Attorney-General, vol. 11, p. 47.)

The government, like an individual has no power to withdraw or annul its grant of land. The first lawful grant must stand; and the second cannot operate as a conveyance, for the reason that the grantor, when he made it, had no estate to convey.Ibid.

The State of Iowa is entitled to the purchase money of swamp lands within her limits, which were entered with cash, prior to the act of 3d March, 1857, and to indemnity in land for such swamp lands as were located with warrant or scrip prior to the passage of that act.-(Opinion of the Attorney-General, vol. 11, p. 467.)

Supervisory powers of the Commissioner and Secretary.

Surveys under confirmations of Spanish titles in the upper Louisiana country are, in regard to their correctness, within the jurisdiction of the Commissioner of the General Land Office, and that officer has power to adjudge the question of accuracy preliminary to the issuing of a patent.-Maguire v. Tyler et al., 1 Black, p. 195.

The Secretary of the Interior has the power of supervision and appeal in all matters relating to the General Land Office, and that power is co-extensive with the authority of the commissioner to adjudge.--Ibid.

The act of the Secretary of the Interior, and Commissioner of the Land Office, in cancelling an entry for land, is not a ministerial duty, but is a matter resting in the judgment and discretion of those officers as representing the Executive Department. Accordingly, the Supreme Court will not interfere by injunction, more than by mandamus to control it.-Gaines v. Thompson, 7 Wallace, p. 347.

Land entries, and decisions of registers and receivers thereon.

A fraudulent entry of public land allowed by a register and receiver, upon false proof of settlement, occupancy and housekeeping, may be set aside and vacated by the Commissioner of the General Land Office.-Harkness and Wife v. Underhill, 1 Black, p. 316.

A contract between two persons, neither of them being settlers or housekeepers, that one of them shall enter land for the benefit of both under the pre-emption laws, is a combination to defraud the government, contrary to public policy, illegal, and void.-Ibid.

Such a contract will not operate by way of estoppel to prevent one of the parties from setting up a good legal title subsequently acquired, against the fraudulent title obtained by the other in accordance with the contract.-Ibid.

In the State Courts of Missouri, when a suit at law is brought by a patentee, the defendant may set up his prior equitable title as a bar.-O'Brien v. Perry, 1 Black, p. 132.

been subsequently reserved or otherwise withdrawn from market. In this class of offered and unreserved public lands the following steps may be. taken to acquire title.

CASH PURCHASES.

3. The applicant must present a written application to the register for the district in which the land desired is situated, describing the tract he wishes to purchase, giving its area. Thereupon the register, if the tract is vacant, will so certify to the receiver, stating the price, and the applicant must then pay the amount of the purchase money.

The receiver will then issue to the purchaser a duplicate receipt, and

The decisions of the register and receiver of lands for the Territory of Minnesota, are not of conclusive efficacy. They may be inquired into and declared inoperative by the courts.-State of Minnesota v. Bachelder, 1 Wallace, p. 109.

The court will inquire into the facts of a disputed entry of public land, and set aside or correct the decision of a register or receiver, or the Commissioner of the General Land Office, as equity may require. -Lindsey v. Haines, 2 Black, p. 554.

Where a party takes up and resides upon a tract of land within a quarter section, whose limits have been fixed by an authorized government survey, pays for it, and receives his patent certificate from the proper officers, and by a subsequent survey it is found that the house of the pre-emption is not within the tract for which he has paid, the Commissioner of the Land Office cannot, for this reason, set aside the sale. Ibid.

In such a case the government is bound by the original survey.—Ibid.

Where the house of a pre-emptor is built on the line dividing two quarter sections, his residence in it avails as the foundation of a pre-emption right in either.-Ibid. Receivers of public moneys.

A receiver of public moneys is not entitled to an allowance for extra clerk hire, under the act of August 18, 1856, in the absence of an appropriation from which it can be paid.—(Opinion of Attorney-General, vol. 10, p. 456.)

A receiver is entitled to mileage for transporting money to a place of deposit, even. if the journey be made by his agent and not by himself.-Ibid.

Fees of registers.

The register of a land office is not entitled to retain a larger sum than three thousand dollars, as commissions for locating military bounty land warrants, under the acts of February 11, 1847, September 25, 1850, March 22, 1852, and March 3, 1855. United States v. Babbit, 1 Black, U. S. Reports, p. 55.

All fees received by a register, whether for locating military bounty land warrants, or for other services, in excess of the maximum fixed by law, must be paid into the treasury.-Ibid.

Land patents, &c.

The right to a patent once vested is equivalent, as respects the government dealing with the public lands, to a patent issued; and when issued, it relates so far as may be necessary to cut off intervening claimants, to the inception of the right of the patentee.-Stark v. Starrs, 6 Wallace, p. 402.

Patents by the United States for lands which it has previously granted, reserved from sale, or appropriated, are void.-Reichart v. Phelps, 6 Wallace, p. 160.

A patent or instrument of confirmation, by an officer authorized by Congress to make it, followed by a survey of the land described in the instrument, is conclusive evidence that the land described and surveyed was reserved from sale.—Ibid.

The fourth section of the act of Congress of 27th September, 1850, donating lands in Oregon, embraced within the term single man an unmarried woman.-Silver v. Ladd, 7 Wallace, p. 219.

Residence in a house, divided by a quarter section line, enables the occupant to claim either quarter in which he may have made the necessary cultivation.—Ibid.

« ZurückWeiter »