improvements, and claim the same for purposes of trade. Murray is entitled to the land in controversy upon making payment therefor. J. THOMPSON, Secretary. Commissioner of the General Land Office. No. 448. A claimant's personal presence and agency necessary to constitute a valid Pre-emption right. Case of Mullin v. Twitchell. July 15, 1857. I am of the opinion that the right to enter said tract, on the evidence produced, clearly appears to be in Susan Twitchell, she having made the first settlement. The decision of the district officers is, therefore, reversed. The act on which they seem to rely as giving priority of settlement to Mullin, was the act of Elias Hobbs, who, on the 8th of January, 1857, entered and “cut brush on said land for him," Mullin. It is also proved that Mullin worked on the land "off and on, ever since the 8th of January, 1857," and "there was no interval longer than one week." The first date that it is clearly proved that Mullin was seen by a witness at work in person on the land, was some three weeks prior to the hearing before the district officers, February 26; though some work was seen January 24, probably done by him. Mrs. Twitchell entered [settled] on the 14th January, and immediately commenced her improvements, and moved upon the land on the 24th of the same month. On the 14th she had the land examined by three persons, who, as one of them testifies, saw no evidences of recent claim or improvement. The acts of Hobbs, on the 8th of January, being no part of the "settlement in person" by Mullin, that of Mrs. Twitchell is the first settlement in order of time, and it is on this ground alone my decision is based. Commissioner of the General Land Office. J. THOMPSON, Secretary. No. 449. Pre-emptions in Minnesota. Priority of settlement does not extend to a date anterior to survey. DEPARTMENT OF THE INTERIOR, Under the Act of August 4, 1854, (No. 255,) I do not regard the question of priority of settlement as extending to a date anterior to survey, in favor of a party who seeks to cross the lines of the quarter-section on which are his residence and principal improvements, to take a fraction from another, who, likewise, settled before survey, and who is found by the survey on another quarter-section. Commissioner of the General Land Office. J. THOMPSON, Secretary. No. 450. The Register and Receiver instructed to consider all the testimony as to whether the Pre-emption Claimant settled for speculative purposes. GENERAL LAND OFFICE, Sir-I have the honor to submit herewith, all the papers in the preemption case of Adam Steinbaugh, cash entry No. 403, in the Minneapolis, M. T., District, said entry being contested by W. T. Swanwick. It Steinbaugh offered proof, and was permitted to enter lots 3, 4 and 8, in section 32, township 116, range 22, west, on the 3d of August, 1855. In September following, ex parte affidavits (herewith) marked "A," "B," and "C," were received at this Office, setting forth that the entry of said Steinbaugh was fraudulent, and requesting a re-investigation of the case. was accordingly remanded to the District Office in a letter of 13th October, 1855, and a rehearing was had in March, 1856. The evidence elicited is exceedingly voluminous, and in many particulars conflicting; but the Register and Reciver, in their letter, "D," express the opinion that the allegations of fraud against Steinbaugh, "are not sustained by the proof submitted." They state, however, that they did not take into consideration any testimony as to whether Steinbaugh settled upon and improved said tract to sell the same on speculation; or whether he had made any agreement or contract by which the title he might obtain thereto should enure to any other person than himself,—as, by the Circular of Nov. 11, 1843, "the affidavit of the claimant on these points, is conclusive on the land office, a false swearing, as to either of them, being the proper subject of an examination by the judicial tribunals." There appeared, however, in the body of the evidence, positive testimony that Steinbaugh had made an agreement, or expressed his determination to sell his claim and leave the country, prior to proving up, and that, on the very day of proving up and making entry, he deeded the land in fee simple to Gilbert G. Griswold and James C. Farwell-the brother of Griswold having accompanied said Steinbaugh to the Land Office to obtain the deed. These facts appearing, and the late Secretary of the Interior having overruled the circular above quoted, in cases where evidence is offered during the investigation, going to show the mala fides of the claimant, (see Hon. Sec.'s letter of July 11, 1856, (No. 445,) to this Office,) the papers in this case were returned to the district officers, and they were directed to take into consideration all the testimony produced, and report to this Office accordingly. Said papers were sent back by the Register and Receiver in their letter of 1st December last, (herewith,) in which they express the opinion that when Steinbaugh "made his said preemption entry, he did not do so as a bona fide pre-emptor, but to sell the same on speculation," and in a subsequent letter, "F," they state that they "are of the joint opinion that the entry of Steinbaugh should be cancelled." I am convinced that Steinbaugh did not settle upon the land in question, "in good faith to appropriate it to his own exclusive use and benefit," but simply as a matter of speculation. I concur, therefore, in the last expressed opinion of the Register and Receiver, "that the entry of Steinbaugh should be cancelled." With reference to Swanwick, I have to state that there is no evidence of any particular improvement made on the land in dispute by him, and our tract-books do not show that he has ever filed a declaratory statement for the same. A decision cannot, therefore, be rendered in his favor, but I would recommend that the district officers be instructed to allow the bona fide settler, first in order, who has complied with the requirements of the law, to prove up and make entry of said land as a pre-emption. If, however, there be no settler upon the tract entitled to such right, said land will come under the class contemplated by the Act of 3d August, 1846, (No. 110,) and will be subject to disposal according to the provisions thereof. I await your direction for further action in the premises. With great respect, Your obedient servant, (Signed) THOS. A. HENDRICKS, Commissioner. Hon. Jacob Thompson, Sec'y of Interior.. Affirmed by Sec'y Thompson, 7th November, 1857. No. 451. A settler in Minnesota has three months from the approval of the plat, to file notice, and a filing made prior to such approval will be regarded as a nullity. GENERAL LAND OFFICE, Sir:-I have the honor to enclose herewith, the report of the Register and Receiver, with accompanying papers, in the pre-emption case of Bangs v. Matthews, each claiming lot 6, in section 14, township 108, range 27, west, Faribault, Minnesota Territory, District. The facts in the case are as follows: Lyman Matthews, a citizen of the United States, a single man, &c., settled on the above tract, between the 10th and 15th of March, 1856, having purchased it from another settler. He fenced, cleared and planted a portion of the tract, erected a dwelling-house, moved into it, and lived in it five or six weeks, then moved into a house on the same tract which had been erected by the settler from whom he purchased the claim; continued to reside on the claim and improve it, up to the date of hearing. Elijah K. Bangs laid claim to the same tract on the 20th of March, 1856, by "marking it off" with stakes and corner-posts. He subsequently erected a house, moved into it about the 3d of May, did some fencing, clearing, &c., and brought on a trial of the case on the 2d of June, following. Bangs is a citizen of the United States, and a single man, over twenty-one years of age. At the close of the hearing, the then District officers decided adverse to Matthews, on the ground, as endorsed on the proof, that said " Matthews had previously filed a declaratory statement" on the public lands. They also decided in favor of Bangs, believing him to have complied with the law. The papers in the case were improperly retained at the Land Office, as will be seen by reference to letters herewith enclosed, until the incoming of the new District offices, and on the 12th ultimo, they having taken the case into consideration, reversed the judgment of the former officers, and expressed their joint opinion in favor of Matthews. From this latter decision, Bangs appeals. Upon an examination of the abstract of declaratory statements, and the plat of survey on file in this Office, I find that the declaration filed by Matthews, prior to his settlement upon the land in dispute with Bangs, and upon which the late District officers based their decision, was filed August 11, 1855, while the plat of survey of the township was not approved till December 19, 1855. By the Act of 4th August, 1854, a settler upon unsurveyed lands in Minnesota, is required to file his declaration within three months after the approval and return of the survey to the district office; and I am disposed to regard a filing made prior to such approval and return as a nullity. Even if this were not so, the land embraced in the filing of 11th August, 1855, was not laterally contiguous, as required, and was on that account illegal and void. Such former filing was, therefore, no impediment to the subsequent pre-emption claim of Matthews, and his settlement having been first in order, and most in accordance with the spirit of the law of 1841, I have to express my concurrence in the views of the present Register and Receiver. I have to state that I regard the conduct of the present district officers, in reviewing and revising a decision of their predecessors, without authority from this Office to re-open the case, as extra-official, and that my decision in favor of Matthews is based upon the facts presented in the evidence, and upon the files and records of this Office, without official regard to the views expressed in their communication. I await your direction for further action in the premises. With great respect, Your obedient servant, (Signed) THOS. A. HENDRICKS, Commissioner. Hon. Jacob Thompson, Secretary of Interior. Decision in favor of Matthews affirmed by Secretary Thompson, October 10, 1857. No. 452. A slight discrepancy between a Declaratory Statement and the proof in a given case, not material. Case of Wake v. Davidson. DEPARTMENT OF THE INTERIOR, The discrepancy between the declaratory statement, in which the claimant, Wake, is styled a "single man over the age of twenty-one," and the proof, which shows him to be the head of a family consisting of himself and one child, is of no importance. He may have corresponded with both the one description and the other. The inferences or impressions of neighbors as to which of two persons of the same name was the claimant who originally settled upon the land, will not be allowed to outweigh or contradict the positive statement of a witness whose testimony is unimpeached. J. THOMPSON, Secretary. Commissioner of the General Land Office. No. 453. In case of a bona fide settler, who was a minor when his settlement was made, becoming of age before an adverse claim arises, the former may amend his Declaratory Statement. DEPARTMENT OF THE INTERIOR, In cases of this character, where the law has been substantially complied with, and the error or informality has arisen from mistake or ignorance, and is satisfactorily explained, and where there is no adverse claimant, I am disposed to regard the legal pre-emptive settlement as commencing from the date when the party becomes a qualified pre-emptor. The claimant may therefore be permitted to amend his declaratory statement, dating his legal settlement from the time he became of age, provided there was then no adverse claimant to the land. Commissioner of the General Land Office. J. THOMPSON, Secretary. No. 454. An error in a Declaratory Statement may be corrected before the inception of an adverse claim. DEPARTMENT OF THE INTERIOR, In the case involving the conflicting pre-emption claims of Charles Kellerman and Joseph Lautzen, to the southwest quarter of southeast quarter, section 13, township 118, range 23, west, which was submitted by your letter of the 17th of December last, the following facts are shown by the papers. The said Joseph Lautzen filed his declaratory statement on the 21st of April, 1856, for the north half northeast quarter, section 24, and west half southeast quarter, section 13, township 118, range 23, west; and afterwards, to wit, on the 13th of September, 1856, he filed declaratory statement No. 3835, for the east half northeast quarter, and northwest quarter northeast quarter, section 24, and southwest quarter southeast quarter, section 13, thus diminishing his former claim, by one forty-acre subdivision in section 13, and embracing in lieu thereof, an additional forty-acre tract in section 24, upon which his dwelling-house was situated. Lautzen appears to have continued in uninterrupted possession of his claim from the commencement thereof, until the 11th of December, 1856, when Kellerman commenced a settlement on the southwest quarter southeast quarter of section 13-the tract in dispute-and filed his declaratory statement on the 16th of the same month. The object of Lautzen in filing his second application, seems to have been to embrace within his claim the tract upon which his house was situated. His second declaratory statement was filed nearly three months prior to the settlement and filing of Kellerman, who thus had full notice of the claim of Lautzen. The evidence shows that Lautzen made improvements on the land in dispute, both prior and subsequent to his second filing. It does not appear that he ever relinquished his claim to the land in controversy. From these facts, I am of the opinion, that said tract of land being subject to the claim of Lautzen, said Kellerman has acquired no rights thereto. The decision of the Register and Receiver, adverse to Lautzen, is therefore reversed, and he will be permitted to enter the land he claims under his second declaratory statement, upon complying with the further provision of the law. J. THOMPSON, Secretary. Commissioner of the General Land Office. |