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with a prior entry, might be entitled to confirmation, it cannot prevail over the claim of Davis, who, in my opinion, has the better right to a patent, if no further objection to its issuance is known to your

office. Such being my opinion, your decision, in support of the action of the local officers, must be overruled, and the pre-emption entry of Bamber cancelled.

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

No. 469.
Pre-emption entries, prematurely made, are always suspicious. Pre-emption

entries of tracts that have never been actually settled and improved, are in derogation of the privilege intended to be conferred on bona fide settlers.

DEPARTMENT OF THE INTERIOR,

Washington, June 16, 1859. Sir:-After an examination of the case of contest between A. H. Scott and W. C. Luther, for the southwest quarter of section 31, township 10, range 14, east, Nebraska City District, I am unable to concur in the conclusions reached by the local officers in favor of the right of W. C. Luther. It is true, that Scott has not established any claim to the land which Luther entered by pre-emption on the 30th March, 1857. On allegations of fraud, the claim of Luther was re-investigated in June, 1858, and the local officers report that, in their opinion, the evidence adduced was not sufficient to warrant the cancellation of his entry.

The facts, as developed by the testimony, appear to have been as follows: In 1856, one Edward W. Neligh claimed this quarter-section, under a territorial law authorizing the possession of three hundred and twenty acres of government land by squatters; but he made no claim to it under any law of the United States. In January, 1857, Luther, who was living with and working for Neligh, went upon the land and commenced removing an old cabin, and building another on a foundation within a few feet of the first. On the 12th March, Scott went upon the land, and whilst there at work building another shanty, Luther came and ordered him away. About the 20th, Luther returned to the land, and with assistance from Edward Neligh, completed his cabin, and moved in a few days after. Being a single man, he stayed there a few days, and then went to the land office and entered the tract with a warrant. From the land office he returned to live with Neligh and work there, and so continued till some time in April, when he went to Iowa. He has never been upon the land since. About the time Luther completed the cabin, he had been heard to say that he had no pre-emption claim, and did not intend to make any.

The evidence is conclusive, that Edward Neligh assisted with his labor, and accompanied Luther when making improvements; that he owned part of the furniture which was put in the house : that he furnished the logs and lumber to build the cabin, and the warrant to enter the land : that he was known as landlord, in renting the premises, as early as the 1st May, 1857. On the 9th May he obtained a deed of the land from Luther; and it was at his expense that further improvements were made under an agreement entered into with him on the 5th May.

When Luther's entry was admitted, he had made no improvement except his cabin. He had filed no declaratory statement, but came forward and entered his claim within a few days after he had settled. As soon as he had effected an entry, he voluntarily abandoned the land. Pre-emption entries, thus prematurely made, are always suspicious. A party who is a bona fide settler, and designs to comply with the law in good faith, generally finds it for his interest to file his declaration, and avail himself of the time which the law allows him within which to tender his proof and pay

ment.

The circumstances of this case, as developed in the testimony, requires the cancellation of Luther's entry. He never complied with the law in good faith.

The pre-emption laws are designed for the benefit of bona fide settlers on the public lands, who go there to establish themselves in a home of their own. Incidentally, when honestly administered, they promote the development of the agricultural resources of the wilderness, and enhance the value of tracts of public land lying in the vicinity of those occupied by settlers. Pre-emption entries of tracts that have never been settled and improved in good faith, are in derogation of the pre-emption privilege conferred on men who may wish to settle and honestly comply with the law, inasmuch as the tracts are thus withdrawn from market, and from the range of choice open to emigrants. Such entries are likewise hostile to the general provisions of our land laws, and injurious to the interest of Government in the public lands as a source of revenue.

Whenever, therefore, private entries of unoffered public lands are effected by formal proceedings under the pre-emption laws, but without a compliance with the spirit and general requirements of those laws, and such cases come before me, I feel in duty bound to refuse to recognize the claims of parties. The papers in this case are now returned to your office.

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

No. 470.

Failure to prosecute such improvements as are requisite to denote actual

settlement, within a reasonable time, will create a forfeiture. The land, though previously entered, will be subject to Pre-emption by a bona fide settler.

DEPARTMENT OF THE INTERIOR,

June 17, 1859. Sir :- The papers in the contested pre-emption case between Bluford A. Johnson and Daniel Doyle, from the Lecompton, Kansas Territory, Land Office, which were received with your letter of the 19th of March last, are now returned.

I concur with the views of the Register and Receiver, so far as they decide against the claim of Johnson, and also with your decision adverse to the right of Doyle. Johnson forfeited any claim he might otherwise have established by his failure to inhabit and prosecute such improvements as are requisite to denote actual settlement within a reasonable time. Doyle does not appear to be an actual settler, or a bona fide pre-emptor in any sense of the word.

The fact that he entered the land so soon after his settlement, creates a doubt of his honest intent to comply with the law, which he has utterly failed to do.

I decide, therefore, that the claim of said Johnson be rejected, and the location of said Doyle be set aside and annulled. The land in controversy will not be withdrawn from pre-emption, but the same will be subject to the claim of a bona fide settler, (should application be made by such an one,) upon satisfactory proof being produced by him of a compliance with the law.

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

No. 471.

Where the Register wrongfully refused to permit a Pre-emption Claimant to file notice, he may be permitted to file as of the date he applied to do so.

DEPARTMENT OF THE INTERIOR,

June 28, 1859. Sir :-I have examined the question presented by the appeal of Daniel Morgan, from your decision, adverse to his pre-emption right to the northwest quarter of section 22, township 2 north, range 2, east, in the Mineral Point, Wisconsin, Land District, and herewith return the

papers. There is no evidence, that at the time of the application of said Morgan to file his declaratory statement for the land, the same was actually selected for university purposes.

The Register and Receiver report, that for some time previous to his said application, this tract had been "erroneously withheld from private entry, the same having been marked upon the plats and records of the local land office as “university land.'”

It was not therefore subject to private sale, until it should be restored to market, by public notice. It was, however, subject to pre-emption, and the Register erred in refusing to permit said Morgan to file his declaratory statement in 1855. But this wrong act of the Register will not defeat his right. His claim attached to the land from the date of his application to file, and he may now be permitted to comply with the requirements of the law, by filing his declaratory statement as of that date; and upon satisfactory proof of continued inhabitancy and improvement, he should be allowed to enter the same, any former sale thereof being first annulled.

J. THOMPSON, Secretary. Hon. J. S. Wilson,

Acting Commissioner of General Land Office.

No. 472. Where two claimants settled before the survey, and about the same time,

and afterwards, were found to be on the same quarter-section, and where the land had not been surveyed at the date of the law authorizing settlement, held that a division of the land should be made.

DEPARTMENT OF THE INTERIOR,

Washington, July 6, 1859. Sir :-I have carefully reviewed the case of contest between James Brooks and Douglas Hamilton, submitted on appeal, with your report of the 20th May last; and also Hamilton's application for a rehearing. As faith;

I view the case, a rehearing of the matter will not be necessary, except so far as the local officers may desire to be more fully informed of the exact location of the dwellings and

improvements of the contestants. Your decision of the 4th February last, was in favor of Brooks, for the entire quarter-section in controversy, on the ground that he was the first settler. Brooks began work on the 8th, and Hamilton on the 10th June, 1854. Their respective settlements were afterwards consummated in good

and having been designed primarily, to attach to separate tracts of land, were not in competition until after the public surveys were made, which brought the houses of both parties upon the same quarter-section, though on opposite sides of a small stream, and, as stated, from a quarter to half a mile apart.

The Act of Congress, approved July 22, 1854, made the land subject to the provisions of the pre-emption law of 1841, and recognized claims by pre-emption to lands unsurveyed. As the tract in controversy had not been surveyed before the 22d of July, 1854, and no legal authority for settling thereon existed before the enactment of that date; and as that law found both claimants settlers in good faith, which settlements were consummated fully and amicably, before the survey in 1855, I am of the opinion, that the effect of the Act of July 22, 1854, is to confirm both settlements. But both parties cannot have the same one hundred and sixty acres, and yet both appear to be entitled to a right of pre-emption in the land settled upon by each, especially as the dwellings appear to be some distance apart. I conclude that the rights of both are equal, and that it is the duty of the local officers to award one-half the quarter-section to each, by legal subdivisions, so that the entry of each claimant will include his own dwelling and improvements.

Should either party decline to enter, after reasonable notice, or abandon his privilege, the entry of the entire quarter-section by the other party, will be proper.

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

No. 473. The Pre-emption law gives a Claimant no right, by reason of a settlement on one tract, to enter another, such as he

may

choose.

DEPARTMENT OF THE INTERIOR,

July 23, 1859. Sir:- In the case of contest between Robert Becker and William H. Schoonover, submitted with your report of the 27th April last, appealed by the former from your decision against him, and in favor of the right of Schoonover, to enter the northeast quarter of section 3, township 24 north, range 28, west, in the St. Cloud Land District, Minnesota, I concur in the decision of your office, and now return the papers.

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Becker settled before the survey, and his claim lines, made before survey,

had extended over more than half the quarter in contest, and he had a few furrows ploughed; but when the survey was made, his house was not found on this quarter-section of land, but in another township. Schoonover settled on this quarter-section, after survey in the field, and the evidence shows he continued his residence on the land up to the time of the contest, and had made some slight improvements, besides his house. After Schoonover's settlement, Becker erected a shanty near the centre of this quarter, but I think the weight of the testimony is, that he never actually lived in it, but continued his residence in the other house. When the parties came to file declaratory statements, both filed on this tract; and it appears to be pretty clear, that they filed with a knowledge of all the facts. Becker made no mistake in filing. If he had claimed the land on which he had settled and built his house, by subdivisions, so as to include part of the land now in contest, it is evident that he might have successfully maintained a claim in opposition to Schoonover, for some of this land.

But the Act of August 4, 1854, was evidently designed to protect the improvements of parties who settle before survey, and to confer a preference right to enter the land on which the improvements have been made, and it requires the party claiming this right to file a declaratory statement, designating the tract on which he had settled, and the date of settlement, within three months after the survey is returned, otherwise, his claim to be forfeited, and the tract to be awarded to the next settler, in order of time.

In this case, Becker did not file for land on which he had settled, and the law gives him no right by reason of a settlement on one tract to enter another, such as he may choose. His three months have gone by, and he has not claimed, as the law authorized. In the meantime, Schoonoyer becomes a settler on the quarter after survey, and claims the whole. We cannot deny his entry, because Becker once had a claim to part, which he could have perfected under the law, but in respect to which he permitted his opportunities to pass without availing, in time, of the benefits he otherwise might have secured.

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

No. 474. A rehearing in a given case refused, but the lands being subject to pre

emption, any resident thereon, who may show a compliance with the law, may establish a right of Pre-emption thereto.

DEPARTMENT OF THE INTERIOR,

August 11, 1859. Sir :-The papers which have been filed in support of the application of James D. Minchell and David Beebe, for a rehearing of the contested pre-emption case, which was decided by me on the 13th April last, adversely to all the claimants of the tract in controversy, which is situated in the Nebraska City District, are herewith forwarded to your Bureau.

My decision above referred to, was a rejection of all claims then presented, for the reason that the claimants had not brought themselves within the requirements of the law. A reinvestigation and reinstatement of those cases, cannot be allowed. The land in question is however still subject to pre-emption, and if any one who has settled upon it, or shall settle upon it, will now.comply with all the requirements of the law, a pre-emption right may be established thereto. Before any steps are taken by the local officers upon any particular claim, fair notice should be given to all who occupy the land, by personal residence thereon, of this decision, so that all parties may have an equal opportunity of establishing their rights. Of course any

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