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The pre-emptor settled in 1853, and when the land was surveyed, in May and June, 1855, he was residing upon, and cultivating a part of this quarter. He was the only settler on it then, but his cultivation was cous fined to the quarter quarter upon which his house had been built. The parties who cultivated other parts of the quarter-section, are not before us as claimants, under the pre-emption laws, and have had no residence on it at any time, but they claim title under a location of California internal improvement scrip upon this tract, with other lands, effected at the Marysville Office, on the 14th May, 1856. The contest therefore, is one between the pre-emptor and the State of California.
The land granted to California, by the eighth section of the Act of September 4, 1841, (No.48,) must be located in parcels, conformably to sectional divisions and subdivisions," * * von any public land, except such as is, or may be reserved from sale by any law of Congress, or proclamation of the President," * * " which said locations may be made at any time after the land shall have been surveyed.”
Under these provisions of law the State claims in this case, and it is clear from the mere recital of them, that we cannot recognize a selection made by a State agent in 1854, before the land was surveyed, nor can we admit the selection made after the survey, in May, 1856, if, before and at the time of that selection, Megerle had a valid legal right to the land, under the pre-emption laws.
The pre-emption Acts of 1853 and 1854, give rights of pre-emption to certain settlers on unsurveyed lands. Megerle is a claimant under the Act of 3d March, 1853. He settled in due time. He was upon the land when it was surveyed, in May and June, 1855, and on the 2d October, following, he filed a declaratory statement in the land office at Benicia, properly describing this quarter-section ; but that filing was irregular, as this township had been transferred before the date of that filing into a new district, that of Marysville, under the order of the President, as published in notice of the General Land Office, No. 534, dated April 9, 1855. In February, 1856, a notice was published by the land officers at Marysville, in the Marysville Eagle, (and afterwards by them charged to the United States, as appears from your official files,) which includes the township in which the lands in contest is situated, notifying settlers in the townships therein described, that it was necessary for them to file their declaratory statements for pre-emption rights, on or before the 15th day of May, 1856, in the Register's Office at Marysville. Megerle, it appears, filed his statement with the Register at Marysville, on the 16th April, 1856, covering the same land on which he had previously filed in the Benicia office.
In 1858, the township in which this land lies, was transferred from the Marysville district to form a constituent portion of the new district of Stockton, under the authority of the Act of 29th March, 1858, and in this case, in October, 1858, the officers at Stockton have decided that the notice issued by the Marysville officers, in February, 1856, whilst the land was in the Marysville district, was unauthorized and void ; and that the true date of the filing of the official plat of this township, in the office at Marysville, was the 5th December, 1855, and that consequently, the preemptor, Megerle, having failed to file on or before the 5th March, 1856, has forfeited his pre-emption.
I cannot recognize that position to be correct. By issuing the notice of February 15, 1856, and accepting declaratory statements conformably thereto, the officers at Marysville, whilst the land was in their district, virtually decided that the plats of the townships described in that notice were filed in their office on the 15th February, 1856, and this decision, the
Stockton officers could not properly reverse in 1858: the effect of such reversal, if admitted, being to defeat pre-emption claims which the Marysville officers had publicly recognized, so far as the question of the date of filing is concerned. In respect to that notice, the officers at Stockton are as much bound by it as though they had issued it themselves; and when we take into consideration the fact that the administration of the pre-emption laws, under your supervision, is one of the peculiar functions of Registers and Receivers of land offices, which such officers in California, in 1855 and 1856, could not execute properly without a resort to the publication of notices like that of 15th February, 1856, it is evident that this notice must be regarded as having been issued by the proper authority, and as embodying that public record of the date of the official filing of the plats of the townships therein described, which the officers of the United States are not at liberty to call in question, when dealing with the persons to whom that notice was issued.
I therefore decide that Megerle was not in default for filing his declaratory statement; and as his settlement was in time, and he was the only settler on the quarter-section in contest at the date of survey, and claims his land in the most compact form, he has the legal right to make the entry claimed.
His right has been bestowed on him by the laws relative to pre-emption in California, and I can neither abridge nor deny it, although it may be true that good neighborship on the part of Megerle toward Terry and Hodges, would have dictated that he should have claimed less land than he does claim. The papers in the case are now returned to your office.
'J. THOMPSON, Secretary. To Commissioner of the General Land Office.
VI. PRE-EMPTION TO MAIL CONTRACTORS.* No. 508. Circular in relation to Pre-emptions to Contractors carrying mails through
Territories west of the Mississippi, under the general provision for that purpose in the Act of Congress, approved 3d March, 1855, making appropriations for the service of the Post Office Department, (Statutes for 1855, p. 684;) also, in reference to the special post route Pre-emption, under Act of 3d March, 1857, (United States Statutes, p. 190.)
GENERAL LAND OFFICE,
September 9, 1857. GENERAL STATUTE OF MARCH 3, 1855. Gentlemen :-In the 1st section of the above mentioned act of Congress of the 3d March, 1855, (No. 279,) it is provided that “ each contractor engaged or to be engaged, in carrying mails through any of the Territories west of the Mississippi, shall have the privilege of occupying stations, at the rate of not more than one for every twenty miles of the route on which he carries a mail, and shall have a pre-emptive right therein, when the same shall be brought into market, to the extent of six hundred and forty acres, to be taken contiguously, and include his improvement; but no such pre-emptive right shall extend to any pass in a mountain or other defile.”
* See “Suspended Entries,” Title 5.
It is held by this Office
First.—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 State, west of the Mississippi to the Pacific, and that no benefit or privilege is conferred by the said act on routes stretching lengthwise in a northerly or southerly direction in the Territory, and forming no part of such connected route.
Second.—The party preferring a claim, must furnish a map showing the entire route for which he is a contractor, having clearly indicated thereon each particular section claimed as a “station” under the law, with a sworn certificate, endorsed on the said map, from the nearest postmaster to each of the said " stations,” showing that said stations are between the several intermediate points designated in the contract with the General Post Office Department, and stating that he, the postmaster, has knowledge of the fact of such "stations” being on the route, and located as represented on said map, and further showing the position or relation of his office, on the map, to the "station” to which he certifies.
This map must be filed in the district office, and be accompanied by evidence from the Post Office Department, that the party claiming is a "contractor" on the route indicated.
Third. The mail contractor or claimant, must file, in the proper district office, his written declaration of intention to claim the benefits of the law within three months from the selection of his 6 stations," if on surveyed lands, giving a full description of each station; and if the lands be not surveyed at the time of selection, then such declaration must be filed within
that being the period within which, from date of settlement, a claimant is required, by the General Pre-emption Act, to file for unoffered lands.
Fourth.-Proofs, to the satisfaction of the local land officers, must be furnished, showing the extent of the improvement at each 66 station,” and that it is of a character to fully subserve the purpose of the “ station.”
The fifth section has been modified, and now stands as follows:
Fifth.-The mail route may be divided into sections of twenty miles each, and the contractors allowed to pre-empt one station in each of said sections, upon its being shown that each station has been selected in good faith under the law, and not for speculative purposes, and that no two stations are within ten miles of each other. See Secretary's letter of October 30, 1857.
Sixth.—Upon unoffered land the claim must be pi red up and paid for during the existence of the contract and before the day used by the President for the public sale of the land, otherwise any right wnich the party may have had will be forfeited.
Where the land is offered and subject to private entry," proof and payment mu- be made within twelve months from the date of the commencement of the improvement.”
Seventh.-Each contractor bringing himself within the law, is entitled to a pre-emption not exceeding six hundred and forty acres, in contiguous tracts, to include his improvements, according to the lines of the public surveys, and not extending to any pass in a mountain or other defile, and, of course, not embracing mineral or other reserved lands.
Eighth.--Notice to adverse claimants to any portion of the land selected as a station must be given in writing, and should be served in time to allow at least a day for every twenty miles the party may have to travel in going to the place of taking testimony.
SPECIAL STATUTE, ACT MARCH 3, 1857. (No. 311.) By the 10th section of this law, the Postmaster General is authorized sto contract for the conveyance of the entire letter mail, from such point on the Mississippi river as the contractors may select, to San Francisco, in the State of California, for six years," &c.
The 12th section declares, that the contractors shall have the right of pre-emption to three hundred and twenty acres of any land not then disposed of or reserved, at each point necessary for a station, not to be nearer than ten miles from each other : and provided, that no mineral land shall be thus pre-empted.”
The principles laid down in the foregoing, respecting the general law of 1855, will apply, under this special statute of 1857, modified only so far as this, that the right of pre-emption is restricted to three hundred and twenty acres, and the stations cannot be admitted nearer than ten miles from each other.
Respectfully, your obedient servant,
Thos. A. HENDRICKS, Commissioner. To Register and Receiver at Approved September 11, 1857. J. Thompson, Secretary of the Interior.
No. 509. Report giving the Commissioner's construction of the Acts granting rights of Pre-emption to Mail Contractors.
GENERAL LAND OFFICE,
October 29, 1857. Sir:-The Acts of Congress, of 3d March, 1855, (No. 279,) and of 3d March, 1857,(No.311,) granting the right of pre-emption to mail contractors in the territories, were evidently passed to provide for the exigencies of the mail service through the uninhabited regions of country. Stations, of which provision may be made for passengers, drivers and horses, are indispensable. The privilege of occupying these stations on the public domain, and of makign all necessary improvements, is first given; and then, to make the party safe in his improvements, and to prevent disturbance at his station by any other purchaser, the right is given him of buying the land, to the exclusion of all others. The primary object of the law is, to provide necessary stations and to give security to improvements, and not wholly to compensate the party in land for carrying the mail. By the first Act it is shown to be the judgment of Congress, that the stations need not be nearer together than twenty miles, and by the second Act, that they need not be nearer than ten miles. The language used contemplates the exercise of a discretion on the part of the contractor in going beyond the point of twenty miles, with a view to the selection of an eligible locality, but not in stopping short of that point. The language is not, at the rate of one for every twenty miles, but, “at the rate of not more than one for every twenty miles.” The right is not to pre-empt a section of land upon every section of twenty miles of the route, but to establish stations along the route not more frequent than one for every twenty miles, and to enter the sections upon which they are situated. Establishing his first station at or beyond the point of twenty miles, the contractor must then pass, as I think, twenty miles further, before he has the right of station and pre-emption again ; for, in the first instance, if he passed several miles beyond the point of twenty miles, he exercised only the discretion given him by the statute. The general Act of 3d March, 1855, and the special law of 3d March, 1857, being upon the same subject, in pursuance of the same policy, and providing for the same necessities, it is proper to look at the second Act to ascertain the intention of Congress, if it be therein made plain, in case the language used in the first Act is ambiguous, or susceptible of different constructions. Turning then to the Act of 3d March, 1857, giving the right of stations and preemption along the mail route from the Mississippi river to San Francisco, we find that the language there used clears the matter of all obscurity, for it is declared that, the contractors shall have the right of pre-emption to three hundred and twenty acres of any land not then disposed of or reserved, at each point necessary for a station, not to be nearer than ten miles from each other : and provided, that no mineral land shall be thus pre-empted.” This language shows the purpose of Congress to have been, in every respect, as I have stated. The points selected must be necessary for stations--and not nearer than ten miles from each other-leaving to the party to consult his interest in establishing his stations at greater distances from each other.
In executing the Act, it is our duty to give it such construction, if the language will allow it, as will not expose its provisions to abuse. If the law be treated as mainly providing a compensation for carrying the mail, and the contractor be allowed to establish stations, and pre-empt stations along the route, at the rate of one for every twenty miles, without the restrictions mentioned in our Circular of September 9, 1857, he may exercise his right much to the prejudice of the public interest, by selecting the most desirable lands, in point of locality, timber, quality of soil, water-power, &c., crowding them into that part of the route passing near the settlements, and avoiding selections in the more remote, barren, or otherwise undesirable portions of the country. It cannot be supposed that Congress so intended; but, on the contrary, that it was a leading purpose.of the legislature, so to order the mail stations, in point of distance from each other, as to constitute them a nucleus of settlement, the interstitial spaces between which would naturally be filled up in the advance of emigration and settlement all along the extended overland route.
In regard to the case presented by the appellant, Mr. Jacob Hall, it appears along this mail route of eight hundred and fifty miles, from Independence to Santa Fé, he has a few stations which are only sixteen or seventeen miles apart, whilst others are twenty and twenty-six miles from each other. In a great mail enterprise like that in question, and looking to the stations as above alluded to of diminished distances, we would consider it as doing no violence to the General Statute of 1855, nor to our circular, to recognize a claim where the diminished distance falls so nearly within the twenty miles limit, and is found to be less than one-fourth of that extent. In the exercise of the legal discretion, imposed by the principle of the common law, which commands us to take no heed of small matters, we would thus take care of bona fide interests, and enforce the ends of justice, whilst, if we discard the ruling of the fifth article of the circular, we disable the Executive from restraining a contractor who might choose to take his forty-two stations in as many miles, leaving the residue of his route, of several hundred miles, to be dotted at distant and remote points, with such improvements as profit, convenience, or necessity might suggest, and in disregard of the continuous settlement principle, at points of given distance, which the law seems to contemplate. Mr. Hall's communication, with enclosures, is herewith returned. With great respect, your obedient servant,
Thos. A. HENDRICKS, Hon. J. Thompson, Secretary of the Interior. Commissioner.