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the law contemplates, and requires. It is therefore decided, that the claims of the parties, as set up and presented in this case, must be rejected.
J. THOMPSON, Secretary. Commissioner of the General Land Office.
No. 499. Town trustees, under the laws of Wisconsin, are qualified to act as the “ corporate authorities," specified in the Act of Congress of May 23, 1844. (No. 79.)
DEPARTMENT OF THE INTERIOR,
September 8, 1859. Sir:-Having considered the question presented by the appeal from your decision, sustaining the rejection by the Register and Receiver, of the application of the county judge of Douglas county, Wisconsin, to enter the land within the claimed limits of Superior City, and recognizing the Board of Trustees, organized under the General Corporation Act of the Legislature of Wisconsin, as the proper parties to accept and perform the trust specified in the Act of Congress of 230 May, 1844, “For the relief of the citizens of towns,” &c., I herewith return the case for appropriate action, in accordance with the views hereinafter set forth.
Before the judge of the county court can be recognized as the proper functionary to enter the land in trust, &c., it must appear that the town is not incorporated.
An act of the Legislature of Wisconsin, entitled " An Act to incorporate the City of Superior," was approved April 17, 1858, but the inhabitants of said place having neglected to observe its provisions, the same is, for all practical purposes contemplated by the Act of Congress, entirely nugatory.
Subsequently there was passed, however, by the Legislature of Wisconsin, to wit, on the 17th May, 1858, an act, the first section of which is as follows :-“ Section 1. Whenever any of the public lands of the United States, within the limits of this State, have been, or hereafter shall be, settled upon, occupied, and claimed, as a town or village site, it shall be lawful for the inhabitants, occupants, and claimants thereof, or a majority of them, to meet at such time and place as they may agree upon; and when so met, to organize themselves into a body corporate, by choosing a chairman and a clerk, and agreeing upon a corporate name and articles of association, by the terms of which the rights of the bona fide claimants of such lands shall be protected, and by choosing three trustees of such corporation ; such articles of association shall define the duty of such trustees, and shall also determine the tenure of its officers, and the time and manner of holding further elections of such corporation."
Another law of said State, (see Revised Statutes of Wisconsin, p. 175,) contains the following provisions : Section 1. Each organized town shall be a body corporate, and as such, may sue and be sued, and may appoint all necessary agents and attorneys in that behalf; and shall have power to purchase and hold real and personal estate, for the public use of the inhabitants thereof, and to convey and dispose of the same; and to make all contracts that may be necessary and convenient for the exercise of its corporate powers, and any orders for the sale or disposal of its corporate property, which the inhabitants thereof may deem expedient.” * *
6 Section 5. All actions, acts, or proceedings, by or against a town, in
its corporate capacity, shall be in the name of such town; but every conveyance of land, within the limits of such town, made in any manner, for the use or benefit of its inhabitants, shall have the same effect as if made to the town by name; any civil action which could be prosecuted by or against an individual, before a justice of the peace, may be prosecuted by or against a town, before such justice.”
By virtue of the authority vested in them by the State laws, the inhabi. tants of Superior City met and organized themselves into a body cor
The act of Congress above referred to, provides that the execution of the trust " as to the disposal of the lots in such town, and the proceeds of the sales thereof,” shall be conducted under such rules and regulations as may be prescribed by the legislative authority of the State, &c. The question now arises : First. Has the admitted action of the inhabitants of Superior City, under the laws of Wisconsin, had the legal effect of incorporating the same, and Second. Are the trustees chosen by virtue of the provisions of the law, qualified to act as the “corporate authorities” specified in the Act of Congress of May 23, 1844.
Both of these questions I unhesitatingly answer in the affirmative, and your instructions to the Register and Receiver at Superior City, directing them to permit the entry by the said trustees of said town, and in trust for the several use and benefit of the occupants thereof, are hereby approved.
J. THOMPSON, Secretary. Joseph S. Wilson, Esq.,
Acting Commissioner of the General Land Office.
No. 500. Apprehensions of violence will not excuse non-filing of notice by a Pre
emptor. Lands included by specific description, within the limits of an incorporated
town, are exempt from Pre-emption, and can only be sold at public sale. Notice must be filed before the inception of an adverse right, and before the conditions of the land are changed.
DEPARTMENT OF THE INTERIOR,
October 5, 1859. Sir:- The case involving the pre-emption claim of John A. Harback, which was the subject of your reports of 22 July and 9th September last, has been revised and considered.
Harback filed his declaratory statement on the 24th September, 1857, in which he claims to have settled upon the land on the 30th September, 1856. Evidence has been produced to show the existence of a claim club in that part of the country, the members of which threatened violence to those who should assert adverse claims to lands which had been appropriated by themselves. This fact is adduced to excuse the non-filing by the pre-emption claimant within the time fixed by law. I cannot admit the soundness or legal force of this proposition. A settler who permits three months to elapse without filing a notice of claim, loses all right which might have enured to him by virtue of his settlement. It is absolutely indispensable and essential to the existence of a pre-emption right, that this provision of the law be observed strictly and without fail. In cases, however, where no adverse claim has attached to the land, and where the
character of the same is unchanged, a settler may acquire again an inceptive right thereto, dating from the time of filing his declaratory statement. In this case, the land embraced in Harback's claim was included, by an act of the territorial legislature, within the limits of an incorporated town by specific description, and it thereby became excluded from pre-emption by the very terms of the law. There were no vague and indefinite limits fixed in the act of incorporation, as in the charter of Plattsmouth, by which it was attempted to incorporate in advance all additions that might be made thereto; but the legal subdivisions which embrace the tract claimed by Harback, are definitely described. Omaha was incorporated on the 2d February, 1857, after the forfeiture by Harback of his original right, and before he had given notice of his intention to assert a pre-emption claim to the land, as required by law.
For these reasons, as well as for those stated in your report of the 2d July last, which I consider valid, the claim of Harback is rejected.
The land in question is not subject to pre-emption, neither has any right on the part of the authorities of Omaha City, or of any others, attached to the same. It can only be disposed of, or brought into market, by being offered at public sale. The papers are now returned.
J. THOMPSON, Secretary. Commissioner of the General Land Office.
V. CONFLICTS BETWEEN PRE-EMPTION CLAIMS AND STATE
SELECTIONS, FOR RAILROADS, INTERNAL IMPROVE-
on lands reserved from entry, by reason of their belonging to the con
tested grant of Maison Rouge. Claim of Pre-emption in the same lands, by entry, for the purpose of Preemption. Case of Faust and Rust.
July 23, 1856. Sir:--Your communication of the 12th ultimo, presents questions of conflicting claims to a certain tract of land in the State of Louisiana, namely, that of James M. Faust, under an alleged authorized selection of the land by that State, and that of C. H. Dobbs, administrator of Frederick Taylor, under an alleged right of pre-emption in said Taylor.
The land in dispute, is part of that claimed by the representatives of the Marquis de Maison Rouge, and which, after much protracted litigation, was, by a series of decisions of the Supreme Court, at length, during the term of 1854 and 1855, finally adjudged to belong to the United States. (United States v. King and others, 3 Howard, 773; 7 Howard, 833 ; United States v. Turner's Heirs, 11 How. 663; United States v. Cox and others, 17 How. 41.) The pendency of that controversy gave rise to sundry acts of special legislation, according to the relation of which, to provisions of general legislation, the present matter is to be determined.
1. The claim of James M. Faust.
He holds, if at all, under an internal improvement warrant of the State of Louisiana, and on a selection or location made in the name of that State, by virtue of the eighth section of the Act of 4th September, 1841, entitled “ An Act to appropriate the proceeds of the sales of the public lands, and to grant pre-emption rights,” by which certain States, including Louisiana, were empowered to take a quantity of public lands for internal improvements, the location to be made by each State, “on any public land, (within such State, except such as is, or may be, reserved from sale by any law of Congress, or proclamation of the President.” 5 Stats. at Large, p. 455, (No. 48.)
And the only point of inquiry is, whether the selection was, or not, made in disregard of any such reservation. If it were, it can have no legal validity.
The Act of March 3, 1811, making general provision for the sale of lands in Louisiana, contains the following proviso :
“Provided however, That till after the decision of Congress thereon, no tract of land shall be offered for sale, the claim to which has been in due time, and according to law, presented to the recorder of land titles, in the District of Louisiana, and filed in his office, for the purpose of being investigated by the commissioners appointed for ascertaining the rights of persons claiming lands in the Territory of Louisiana.” 2 Stats. at Large, p. 665.
The Act of May 26, 1824, for settling land claims in Missouri and Arkansas, enacted That in each and every case, in which any claim, tried under the provisions of this act, shall be finally decided against the claimant; and in each and every case, in which any claim, cognizable under the
land specified in such claim shall forth with be held and taken as a part of the public lands of the United States, subject to the same disposition as any other public land in the same district.” 4 Stats. at Large, § 7, p. 54. The provisions of this act were temporary only; and were continued in force by another temporary Act, that of May 21, 1828, (4 Stats. at Large, p. 298,) and were, by the Act of June 17, 1844, (No. 89,) revived for à certain period of time, and made applicable to Louisiana, Arkansas, and certain portions of Mississippi and Alabama. 5 Stats. at Large, p. 676.
These acts attached, in fact, to the land comprehended within the limits of the claim of the Marquis de Maison Rouge. In some of the documents before me, doubt or uncertainty is expressed on this point, that is, whether the claim of Maison Rouge was among the claims duly before the proper commissioners, as required by the tenor of the Act of 1811; but of this, the proofs will be found in the archives of the Land Office. (See United States v. King, 3 How. 773, 780.) Of course, under the acts cited, the land in controversy was reserved from sale, the reservation to terminate forth with, upon the title being fixed by adjudication, or limitation of action in the United States.
But the tenor of the reservation was materially modified by the Act of January 27, 1851, (No. 184,) which was enacted with particular reference to the Act of June 17, 1844, and which gave a special right of pre-emption, in the lands claimed by Maison Rouge, to all persons holding by purchase in good faith, under him, and who should have improved and cultivated the land so purchased. In order to enable such persons to present their claims, the act provided, that twelve months subsequent to public notice should be allowed them, during which period the lands in question “shall not be liable to sale to other persons, as public lands.” 9 Stats. at Large, p. 565.
Now it appears that Faust made entry, in the first instance, under a
location of the year 1845, which was premature, according to the law as it then existed, and again under a new location of September 4, 1853, which was also premature, for no notice whatever, under the Act of 1851, was given by the Land Office, until August, 1854, and even that notice proved to be unseasonable, and had to be countermanded, as against law and void, in consequence of the pendency of the case of the United States v. Coxe, which covered three quarters of the pretended grant to Maison Rouge, and was not finally decided until the 5th March, 1855, (17 How. 41.) The Act of 1851, (No. 184,) which continues the reservation of this tract until
only in the event of a final adjudication by the court, in favor of the United States.” Of course, not until after the rendition of judgment in the case of the United States v. Coxe, could any lawful notice be given to declare in conformity with statute, that the lands in question were to be thereupon considered as released from reservation, and from pretensions of alleged grant, and so restored to the mass of the public domain of the United States.
It is clear, therefore, that the claim of Faust cannot be maintained. 2. The claim of C. H. Dobbs, administrator of Frederick Taylor.
In the report of the pre-emption clerk of the Land Office, in that of the Commissioner, in the brief of the case prepared in your Department, and in the arguments of counsel, sundry questions are discussed as appertaining to the claim of Taylor.
I propose to deal with but one of these, which seems to me decisive of the case, without going into others, which may, or may not, be of equal relevancy, but which it will be time enough to consider when they come up insulated, in questions essential to the determination of the rights of the Government.
The material facts it appears are these :
Taylor occupied the land in 1832, and from that time until 1846, when he assigned for a valuable consideration to Mr. Rust, and then removed to another tract of land, which he occupied until his death, in 1848. On his death, his widow administered; but she marrying again, and removing into another State, was for these reasons, as it is alleged, superseded, Dobbs
The object of the administration, however, is frankly avowed by Mr. Rust. It is to provide the means of making effectual, if it can lawfully be done, the assignment to him by Taylor. For Mr. Rust entered upon, and has continued in, the actual use and improvement of the land, though not himself residing upon it, his domicil being in the State of Arkansas.
Here, undoubtedly, are equities of a certain kind in Taylor, and in his assignee, Rust. I am not prepared to say, that by no means whatever could such equities, in a case otherwise free from difficulty, be converted into a legal estate. Nor, in the present case, does evidence appear of any. thing objectionable in what is aimed at, except in the various prohibitory provisions of acts of Congress. I say nothing upon this point, therefore, except, in behalf of all innocent holders in such circumstances, to exclude conclusions that they are without redress at the hands either of the courts of law or of the United States.
Leaving all these considerations aside, the radical difficulty here seems to me to consist in the fact that, during the whole period of the assumed pre-emptor's occupation, the land in dispute was a part of the statute reservation covering the claim of Maison Rouge. That reservation, we have already seen, commenced with the Act of March 3, 1811, and only expired with the statute of January 27, 1851. During all that period of