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CHAPTER X.

THE PRE-EMPTION ACTS.

The first enactment relating to pre-emption was the act of March 3, 1801, giving a right of “pre-emption" to certain persons who had contracted with John Cleves Symmes, or his associates, for lands lying between the Miami rivers, in the Territory of the United States, northwest of the Ohio River. Tbese persons were living upon the lands once within the Symmes tract, but were not included in the patent for the reduced area, wbich he finally obtained.

This pre-emption or preference right thus first established was a step toward abol. ishing the sale of unoffered land, and giving a settler the first right or preference as against a person desiring to purchase and hold for investment or speculation.

The essential conditions of a pre-emption are actual entry upon, residence in a dwelling, and improvement and cultivation of a tract of land. The several pre-emption acts give a preference to the settlers.

Pre-emption is a premium in favor of and condition for making permanent settlement and a home. It is a preference for actual tilling and residing upon a piece of land. The original act was followed through the period from 1801 to 1841—forty years--by sixteen acts; the most important being the act of 1830. Under the act of April 5, 1832, the Secretary of the Treasury, in 1834, ordered the subdivision of 80-acre tracts into 40-acre lots-quarter-quarter sections—and the minimumsubdivision forsale or entry was a 40-acre parcel at $1.25 per acre.

EFFORTS TO CONFINE ITS BENEFITS TO CITIZENS.

During the consideration and prior to the passage of the pre-emption act of June 22, 1838, first session Twenty-fifth Congress, Mr. Merrick, of Maryland, in the Senate, moved as an amendment: “That the benefits of pre-emption be confined to citizens of the United States, excluding unnaturalized foreigners, or those who had declared their intentions to become citizens."

The vote upon Mr. Merrick's motion was-yeas: Messrs. Bayard, Clay of Kentucky, Clayton, Crittenden, Davis, Knight, Prentis, Preston, Rives, Robbins, Smith of Indiana, Southard, Spence, Tallmage, Tiption-15. Nays: Messrs. Allen, Benton, Brown, Buchanan, Calhoun, Clay of Alabama, Cuthbert, Fulton, Grundy, Hubbard, King, Linn, Lumpkin, Lyon, Manton, Nicholas, Niles, Nowell, Pierce, Roano, Robinson, Sevier, Walker, Webster, White, Williams, Wright, Young of Illinois-28.

So the amendment was not adopted.

June 1, 1840, and the more complete act of September 4, 1841, gave a preference right only where the settlement was made subsequent to survey, which were amended and improved by acts of March 5, 1843, March 3, 1853, March 27, 1854. The two latter acts modified this rule as to settlement, so as to permit pre-emptions to extend to unsurveyed lands in California, Oregon, Minnesota, Kansas, Nebraska, and New Mexico. The act of May 30, 1862, and sundry bills for relief of settlers passed at different dates, extended the time of payment on account of drought, plague from grasshoppers, &c. The act of March 3, 1873, authorized joint entries, and the act of March 3, 1879, prescribed the manner of making final proof."

By the act of March 3, 1853, preference rights attached to alternate even-numbered sections along the lines of railroads where settled upon and improved prior to final allotment of the granted sections, and to lands once covered by French, Spanish, or other grants declared invalid by the Supreme Court of the United States.

By act of March 27, 1854, persons were secured in lands withheld for railroads where their settlements were made prior to the witbdrawal from market.

The municipal town-site law of 1844, and the pre-emption provisions in the graduation act of 1854, gave way, the former to the town property and coal-land legislation of 1864 and 1865, the latter to the homestead statutes of 1862, 1864, 1866, the law of 30th May, 1862, intervening in regard to pre-emption and other important interests.

PRESENT LAW, JUNE 30, 1880.

The privilege of pre-emption now extends to settlement on unsurveyed as well as on surveyed lands, and a credit of from twelve to thirty-three months is given the pre-emptor by residence thereon.

By act of application at a district land office and the payment of a fee for the registration of his claim, a person gains the right to occupy thereunder a certain tract of land, offered or unoffered, now not more than 160 nor less than 40 acres (in the first act the quantity was 640 acres), for a limited period, with obligation at the end of that period to pay to the United States $1.25 per acre for the land in the tract claimed or entered, and receive a patent therefor.

Any person seeking the benefits of pre-emption under the laws now in force must be the head of family, a widow, or a single man over twenty-one years of age, a citizen of the United States, or must have filed a declaration of intention to become such, and that he is not the owner of 320 acres of land within the United States, and must be a person who has not quit or abandoned his or her own land in the same State or Territory to reside upon the public lands.

Actual settlement upon the tract claimed, for the exclusive use and benefit of the pre-emptor, and not for purposes of sale or speculation, must be shown, under the rules and regulations of the department, to the satisfaction of the register and re ceiver. Upon these simple requisites entry may be made to the extent of one quartersection or other compact body, not exceeding 160 acres (unless the quarter-section subdivision exceeds this amount by a fractional number of acres) upon any of the public lands of the United States to which the Indian title has boen extinguished, not reserved, nor included within the limits of any incorporated town or selected for townsite purposes, or actually settled and occupied for trade and business, or lands which contain any known salines or minerals, except in the States of Alabama, Mississippi, Louisiana, Arkansas, and Florida, in which, by special act of Congress of June 2, 1866, the public lands are brought exclusively under the provisions of the homestead act, and by act July 4, 1876, are subject to private entry, after first being offered.

THE BENEFITS OF THE PRE-EMPTION SYSTEM.

The pre-emption system arose from the necessities of settlers, and through a series of more than 57 years of experience in attempts to sell or otherwise dispose of the public lands. The early idea of sales for revenue was abandoned, and a plan of disposition for hoines was substituted. The pre-emption system was the result of law, experience, Executive orders, departmental rulings, and judicial construction. It has been many-phased, and was applied by special acts to special localities, with peculiar or ad. ditional features, but it has always and to this day contains the germ of actual settlement, under which thousands of homes have been made and lands made productive, yielding a profit in crops to the farmer and increasing the resources of the Natiou. The necessity of protecting actual settlers on the public domain and giving a preference right to persons desiring to make homes thereon became more apparent in the years from 1830 to 1840. The receipts of the government from cash land sales, during that period, was $81,913,017.83; in the years 1835 and 1836 being, respectively,

In

1839

..............................

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$15,999,804.14 and $25,167,833.06. The largest yearly receipts before or since, and representing about 32,800,000 of acres (approximating the area of the present State of Alabama, and more than the area of Ohio or Indiana), were as follows: In 1837

$6,770, 036 52 In 1838 .............

3,081, 939 47 In 1839.

7,076, 447 35 In 1840 ........................

3, 242, 285 58 In 1841 ......

1,363, 090 04 The number of entries thereunder, acreage, and locations cannot be given in detail, because the system of the General Land Office carries them into “ cash entries." Entries under the pre-emption act as to acres therein and cash receipts therefor are embraced in the annual cash receipts from sales of lands.

The cash disposals of lands from the beginning of the land system to June 30, 1880, are estimated at 169,8:32,564.61 acres. This includes pre-emption, homestead commutation, and graduation act entries, together with perhaps 20,000,000 acres, originally entered under some special settlement or other law, and are accounted for under different titles as well as under this chapter.

FORM OF PATENT FOR CASH OR PRE-EMPTION ENTRY.

(4—407.)

Certificate No. —

The United States of America, to all to whom these presents shall come, greeting :

Whereas – - - ha deposited in the General Land Office of the United States a certificate of the register of the land office at — , whereby it appears that full payment has been made by the said

according to the provisions of the act of Congress of the 24th of April, 1820, entitled “An Act making further provision for the sale of the Public Lands,” and the acts supplemental thereto, for -

-, according to the official plat of the survey of said lands, returned to the General Land Office by the Surveyor General, which said tract ha been purchased by the said

Now know ye, that the United States of America, in consideration of the premises, and in conformity with the several acts of Congress in such case made and provided, have given and granted, and by these presents do give and grant, unto the said -- - and to heirs the said tract above described: to have and to hold the same together with all the rights, privileges, immunities, and appurtenances, of whatsoever nature thereto belonging unto the said

, and to — heirs and assigns forever; subject to any vested and accrued water rights for mining, agricultural, manufacturing, or other purposes, and rights to ditches and reservoirs used in connection with such water rights as may be recognized and acknowledged by the local customs, laws, and decisions of courts, and also subject to the right of the proprietor of a vein or lode to extract and remove his ore therefrom, should the same be found to pene. trate or intersect the premises hereby granted, as provided by law. In testimony whereof, I,

President of the United States of America, have caused these letters to be made patent, and the seal of the General Land Office to be hereunto affixed.

Given under my hand at the city of Washington, the day of -- , in the year of our Lord one thousand eight hundred and —, and of the Independence of the United States the one hundred and — By the President: [SEAL.]

-- Recorder of the General Land Office. Recorded, vol. —, page —

By

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Secretary.

CHAPTER XI.

SALINE LANDS.

RESERVATIONS AND GRANTS.

In the act of Congress of May 18, 1796, which provided for the sale of the public lands in a portion of the territory northwest of the river Ohio, was a proviso that salt springs were to be reserved for the use of the United States, together with a section of one mile square, which should include the spring. A whole township of land was to be reserved with one particular spring named in the act, situated on a creek emptying into the Scioto River. By the act of 1800 the surveyor-general had authority to lease these reserved lands. The acts for the admission of all the public-land States up to Nevada, gave to them all the salines not exceeding twelve in number in the respective States, together with six sections of land with each spring for school purposes and public improvements.

NOT SUBJECT TO ENTRY UNDER PRE-EMPTION OR HOMESTEAD LAW.

In the pre-emption act of September 4, 1841, sec. 10, it was ordered that “no lands on which are situated any known salines, or mines, shall be liable to entry under and by virtue of the provisions of this act." The homestead act of May 20, 1862, reaffirmed the exceptions in the pre-emption act of 1841, and its amendments. Salines were disposed of by special acts of Congress until after the admission of the State of Nebraska into the Union, March 1, 1867.

CHANGE IN SALINE LAWS.

The act of January 12, 1877 (see circular General Land Office April 10, 1877), provided a new mode of proceeding by which such lands are rendered subject to disposal as other public lands. Under its provisions a hearing is ordered and witnesses are examined as to the character of the land in question, and the testimony taken at the hearing is transmitted to the General Land Office for its decision. Should the tracts be adjudged agricultural, they will be subject to disposal as such. Should the tracts be adjudged saline in character, they would be offered at public sale to the highest bidder for cash, at a price of not less than $1.25 per acre. In case they are not sold, the same will be subject to private sale at a price of not less than $1.25 per acre, in the same manner as other public lands are sold. This law is not operative in the Territories nor in the States of Mississippi, Florida, Louisiana, California, and Nevada, because their former saline grants have not as yet been filled.

: 217

AREA OF GRANTS TO THE SEVERAL STATES.

The following table shows the area and dates of grants, by Congress, of salines to the several States :

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NOTE.— With the exception of the States of Ohio, Indiana, and Alabama, each of which were granted 36 sections of land lying contiguous to the salt springs, 6 sections for each, for the use thereof; and of the State of Illinois which was granted all the springs in the State, and the same quantity of land for each, the remaining States in tho above list were each granted 12 springs together with 6 sections of land for the use of each spring, lying contiguous thereto. They were patented by the United States to the several States, which disposed of them as they thought best.

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