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It is only in cases where entries have been annulled, that subsequent pre-emption rights can accrue.

In this case, the entry has not been cancelled by you for fraud, nor rejected by the board of suspended entries, and you do not propose to disturb it. Whenever facts shall be brought to your notice, which are sufficient to justify the opinion that fraud has been committed in any case, it will be proper to order an investigation thereof. In the present case, however, you have decided that the statements contained in the affidavits filed do not satisfy you that a reopening of the pre-emption claim of said Grey should be ordered, and there is no adverse legal clainrant qualified to appeal from your action, this Department will not revise the same. In the case of Dewey v. Allen, decided by me on the 13th of December last, the language employed might be considered to extend to the recognition of settlements made after the original entries, and before the cancellation thereof. Such is not the view that I entertain of the law.

On the contrary, the entry of a tract of land withdraws the same from market or preemption claim, and no right to the same arising subsequently to entry, and before cancellation, can be recognized. An intervening settlement would confer no right. The appeal of said Gilman is hereby dismissed, and the papers submitted to this Department on the 21st instant, are now returned.

Very respectfully,

J. THOMPSON, Secretary. Jos. S. Wilson, Esq.,

Acting Commissioner of the General Land Office.

No. 462.. Where land has been once entered and the entry cancelled, the same is not subject to private entry until public notice is given.

DEPARTMENT OF THE INTERIOR,

December 18, 1858. Sir: From your report of 230 September last, submitting the case involving the claims of Thomas Humphrey and James M. Stowe to a certain tract of land in the Palmyra, Missouri

, District, it appears that said Humphrey had been permitted to enter the land referred to, by pre-emption, at the graduated price : that subsequently his entry was cancelled, for the reason that said claimant had never permanently resided upon the land entered. It also appears, by your letter to the Register and Receiver of 230 April, 1857, that those officers were instructed to permit James M. Stowe to enter the land under the former rule of your office, allowing the successful contestant, in such cases, a preference right to the land in dis

pute, &c.

It is not perceived that any valid reason exists for applying a rule of this kind to lands within a particular district, which is at variance with the established practice with regard to all other public lands.

The cancellation of the entry of said Humphrey is approved.

Said Stowe applied to enter the land in question by private entry, the same having been previously sold, and this would, therefore, seem to be such a case as was contemplated by the fifth section of the Act of August 3, 1816.

J. THOMPSON, Secretary. Commissioner of the General Land Office.

No. 463.

A Pre-emption Claimant who fails to settle and improve the land claimed

within a reasonable time, forfeits all right thereto. There being no adverse right, however, and it being shown that he was actually residing in good faith thereon, he may be permitted to file a new Declaratory Statement therefor.

DEPARTMENT OF THE INTERIOR,

February 3, 1859. I have examined and considered the facts in the pre-emption case between William Noel and Mary E. Pepper, (now Hays,) and herewith return the papers which accompanied your letter of the 17th November last.

Your decision, adverse to the claim of Mrs. Hays, is approved. A claimant who fails to settle and improve the land embraced in his declaratory statement within a reasonable time, forfeits all right of pre-emption thereto, unless said failure is satisfactorily explained. It would be difficult to conceive a state of facts which would justify or excuse so long an absence and non-residence, as is shown in this case by Noel. I am of the opinion, as he did not follow his declaratory statement by actual settlement and inhabitancy, that he has forfeited the inceptive right which he had acquired. As, however, the adverse claimant has shown no right of pre-emption to the land, and as said Noel has now moved upon

and

appears to be an actual settler thereon, he may be permitted to file a new declaratory statement, fixing settlement at any time within three months from such filing, and thereupon, on making proof of settlement and improvement to the satisfaction of the Register and Receiver, and upon complying with all the requirements of the law, his entry of the land claimed by him may be consummated.

J. THOMPSON, Secretary. Commissioner of the General Land Office.

the same,

No. 464. Where a Pre-emption Claimant's first acts were sufficiently connected with

his subsequent settlement and improvement, the same would carry the date of his right beyond that of an adverse private entry.

DEPARTMENT OF THE INTERIOR,

February 7, 1859. Sir:- I have the honor to acknowledge the receipt of your letter of the 26th ult., in relation to Joseph Polley's claim of pre-emption to the northwest quarter of the southwest quarter of section 5, township 21, range 10, in the Steven's Point land district, the same land having been claimed by Mr. Bouck, as administrator of Smalley.

To the allegation of Mr. Bouck, that Polley's claim was “bogus,” and the allowance thereof an “outrage,” it might be sufficient to say that the claim was allowed by the local officers, and their action was affirmed here on appeal. Though it is unusual to furnish any explanations of the decisions that are made in this Department in the proper and necessary course of the business entrusted to it by law, at your solicitation, I consent to do so in the present case. It appeared in the testimony that Polley, sometime in the summer of 1855, had gone upon the land and made a commencement of improvements. He also filed his declaratory statement, and returned to the East for his family. He, however, found his family sick ; so much so as to forbid their removal that fall. In the following spring, Polley returned to Wisconsin with his family, and settled upon the land. He made such improvements as his limited means would admit, and had continued to reside on the land thereafter; one or more members of his family had died and were interred there. Under such circumstances there could be no doubt of the bona fides of Polley in the matter, from beginning to end. The only question seemed to be whether his first acts were sufficiently connected with his subsequent settlement and improvements, so as to carry the date of his right to the land, behind the adverse entry of Smalley, who had, in Polley's absence, entered a part of the land embraced by the declaratory statement of the latter. The decision of the local officers, sustained by this Department, was in the affirmative. The case, as regarded here, was simply one between the pre-emptor and the United States, as the entry by Smalley was made while the files of the land office showed that Polley was a claimant for the same land, by pre-emption, and upon complying with the pre-emption laws, would have a superior right.

* See No. 468.

J. THOMPSON, Secretary. Hon. C. Billinghurst, House of Representatives.

No. 465.

A mistake of description in a Declaratory Statement, if ignorantly made,

and there is no evidence of bad faith, may be corrected at any time. Such statement, when the land was actually occupied, would be sufficient

notice to others. If while a Claimant owned three hundred and twenty acres of land, another

had settled, the latter would have the preference right; or if it should appear that the former merely temporarily divested himself of the excess, intending to resume the same, his claim should be rejected.

DEPARTMENT OF THE INTERIOR,

April 14, 1859. The pre-emption case from Lecompton, Kansas Territory, wherein Isaac Shirley and Elisha Deiffendorf are parties contestant, has been examined and considered, and the papers submitted by your letter of the 23d February last, are herewith returned.

The first question presented by this case is, whether the error in the declaratory statement of said Shirley, by which the land upon which he had actually settled was not described, but, in its stead, two eighty-acre tracts, one lying on the east, the other on the west thereof, was fatal to the preemption right of said claimant. There being no evidence of bad faith or unfairness on his part in relation to such error, and the same appearing to have been ignorantly and unintentionally committed, I am clearly of the opinion that it might be corrected at any time, and that such filing, though erroneous, when considered in connection with the improvements of said Shirley on the tracts which separated the two specified in his declaratory statement, was sufficient notice to all others of the fact that he really intended to claim the land upon which he resided and which he cultivated. This objection to the right of Shirley cannot, then, be sustained.

Another point, urged in opposition to the claim of Shirley, who appears to be a bona fide settler, is, that at the time his settlement commenced, he was the owner of three hundred and twenty acres of land, and more. The intention of the pre-emption law was, manifestly, to restrict the benefits conferred by it to those who owned less than that quantity of land ; and no right of pre-emption could be acquired by one who was the proprietor of a greater quantity than that specified. No right of pre-emption, therefore, accrued to said Shirley, by virtue of his first settlement on the land in controversy; and if, while he was thus disqualified, another had settled on the land, in good faith, who was competent to take land under the law, the latter settler would have had the preference right. Or, if it should appear that the former had merely temporarily divested himself of the title to the excess, for the purpose of evasion, and to relieve himself of his disability of pre-emption, intending to resume the proprietorship thereof, after being allowed to pre-empt government land, such a transaction would be regarded as fraudulent, and his claim should be rejected. But the facts developed in this case do not indicate that the transfer by Shirley, was other than a real conveyance, and an actual sale. Otherwise, it would be proper to disallow his claim of right to pre-empt the land. Upon the other point, it is fully shown that Shirley, long previous to the inception of Deiffendorf's claim, had become a qualified pre-emptor, by having reduced the quantity of land owned by him, below that limited in the restrictive clause of the law.

Said Shirley appears to have become a qualified pre-emptioner in March, 1856; in June following, he filed his declaratory statement; and having complied with all the legal requirements, since the date of the removal of the disability referred to, his right to pre-emption has attached to the

lands.

Your decision, sustaining the action of the local officers, in favor of said Shirley, is accordingly hereby affirmed.

J. THOMPSON, Secretary. Commissioner of the General Land Office.

No. 466.
The purchase of the claim of a prior settler, in connection with other facts

showing good faith, is sufficient to constitute a Pre-emption settlement.

DEPARTMENT OF THE INTERIOR,

May 20, 1859. . Sir :—The papers received with your letter of 31st December last, in the case involving the conflicting pre-emption claims of George W. Keller, Joseph Worley, and Calvin R. Martin, to a certain tract of land lying in the Lecompton District, Kansas Territory, you will find herewith enclosed. I concur in the conclusion reached by the Register and Receiver, and by yourself, that said Keller is entitled to enter the land he claims. It seems that he went, in company with a witness, to the house occupied by Coffee, on this land, on the 5th of March, 1857. That he then and there agreed to purchase all the interest which said Coffee had to the land, and that he did actually purchase, and entered into the possession of the same. That he employed said Coffee to occupy the place for him until his return with his family. The purchase, execution of a deed, and payment of part of the purchase-money, to the original settler, in the presence of a witness, and the employment of an individual to occupy the land for him, were sufficient to constitute an inceptive settlement, particularly as the whole proceedings indicate fairness and good faith.

J. THOMPSON, Secretary. Commissioner of the General Land Office.

No. 467.

Under given circumstances, the variance of a few days between the date of

settlement, as alleged in the Declaratory Statement, and as proven, is immaterial. Dating the filing before settlement proven, will not necessarily vitiate the claim.

DEPARTMENT OF THE INTERIOR,

Washington, June 15, 1859. Sir:—The question submitted with your report of the 11th instant, in the case of Benjamin Phen's pre-emption entry at the Stevens Point Land Office, Wisconsin, which is contested by J. C. Barton, who entered the land after Phen had filed his declaratory statement, and before the time had expired for him to make his proof and payment, under the pre-emption law, has been considered, and your decision, sustaining the action of the local officers, is hereby affirmed.

On the hearing, Phen was unable to prove that his settlement commenced as early as was alleged in his declaratory statement; but he did show settlement and improvement before any adverse claim intervened; and the variance of a few days between the date of settlement, as alleged in the declaratory statement, and as proved on the hearing, is immaterial, under such circumstances. Nor will the fact, that settlement is not proven to have preceded the filing, vitiate the claim, so long as the allegation of the claimant is uncontradicted, and may be received as true, though not susceptible either of proof or contradiction, successfully. The papers in the case are now returned.

J. THOMPSON, Secretary. Commissioner of the General Land Office.

No. 468. Where a Pre-emptor fuils to show a sufficient connection between his settle

ment and the commencement of inhabitancy, the intervening entry of a private purchaser will not be disturbed.*

DEPARTMENT OF THE INTERIOR,

Washington, June 16, 1859. Sir :-It is pretty clearly shown by the evidence, that Bamber, who was a single man, early in June, 1855, commenced a shanty on the premises, and filed his declaratory statement June 8, 1855. This shanty was never habitable, and was never occupied. No further improvements were made by him until March, 1856, although he appears to have resided in the neighborhood. In March, 1856, he built another house, plowed several acres of the land, went to live on the land, and thereafter made it his home.

This tract of land was in market in November, 1855, when Davis made his entry, unless it had been settled upon by Bamber. The latter does not show that he had resided on the land at any time before March, 1856, nor had he made substantial improvements. He has brought forward no facts or circumstances tending to excuse his laches. What he did in June, 1855, did not amount to a settlement, nor are his acts then performed, sufficiently connected with his building and residence in March, 1856, to warrant me in regarding them as carrying the date of settlement so far back. Although his entry, based on the settlement in 1856, in the absence of any conflict

* See No. 464.

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