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settler who has disqualified himself by a former filing or otherwise, for acquiring a right of pre-emption, unless within the exceptions specified in the instructions and regulations in force, in relation thereto, would be excluded from the right of entry. This point must be inquired into by the local officers, and a report as to the qualifications of the respective claimants will be required, as the papers indicate a previous entry, by one of them, on another tract.

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

No. 475.

A Pre-emptor may date his Pre-emption settlement, at any time within three months from the date of filing notice.


August 11, 1859. Sir:- In the case involving the pre-emption claims of Ernest Kasten and Henry Benz, from the Kickapoo, Kansas Territory, Land Office, the facts are, that neither party filed notice within the required time, and that accordingly all right of either, under his original settlement, was lost. Both parties continued to occupy and inhabit the land. Kasten filed his first notice on the 30th May, 1857, and Benz filed on the 20th October, 1857. Had Kasten, instead of fixing the date of his settlement as a preemptor, in 1855, fixed upon any time within three months from the date of his declaratory statement, as he might have done, his right as the first settler, who had observed the law, would have been unquestionable. As he was living upon the land, no specific act was necessary to constitute a new settlement, as a pre-emption claimant. Had the contestant given notice of his intention to claim the right of pre-emption to the land before Kasten filed, the former, although the later occupant, would have been entitled. But Kasten's right may be regarded as commencing from the date of his first filing, which may be treated as the date of his pre-emption settlement. This will obviate the necessity of observing the useless formality of returning the case to the local office, to afford him the opportunity of amending his declaratory statement. In this, and in any other view of the case which I am able to take, Kasten has the superior claim to the land.

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

No. 476. The law allows a Pre-emption Claimant a certain time within which to

file, and no entry thereof, before he offers to file, if within the legal time, will debar him of his right. A person using or renting out public land, a trespasser, &c.


August 27, 1859. Sir :--The facts in the case of James H. Daniels v. Thomas Diggs, each claiming the right of pre-emption to a certain tract of land in the Boonville, Missouri, Land District, appear to be as follows :

Said Daniels commenced his settlement on the 29th day of June, 1858,

and finished a dwelling house on the 2d July. He then left in order to bring his family to the place. He returned on the 6th July and found his house torn down and some of the logs burned. On the 8th of July he finished another house, in which he left his family while he went to the land office to file his notice. On account of the sickness of his child, it is alleged that he took his family to the place from which he moved, said to be the house of a relation. He was not permitted to enter for the reason, assigned by the local officers, that the land had been entered by another. The law allows a claimant thirty days from the date of his settlement to file for offered, and three months for unoffered land, and no entry thereof, before his application to file, if within the legal time, will debar him of his right. The action of the Register in refusing to permit the claimant, Daniels, to file his declaratory statement, on the ground that this tract had been previously entered, was, therefore, in total disregard of the law.

Diggs claims to have settled on the 5th July, 1858, and four days thereafter was permitted to enter the land. It is shown that he had claimed this land for some time, and was receiving rent for it, notwithstanding he had never taken any steps to acquire a title thereto from the Government, until after the settlement of the adverse claimant. He was thus a trespasser, and as the claim he now sets up was subsequent in its inception to the settlement of the contestant, by which the right of the latter attached, and since there was an evident attempt on his part to defraud the Government by keeping the land out of market, while he was actually deriving a profit from it, I am of the opinion that such claim is equally destitute of equitable and legal merit.

It has been heretofore held by this Department, that an entry immediately succeeding a pre-emption settlement, is, of itself, sufficient to create a suspicion of fraud, since the law allows a claimant a specified time within which to make proof and payment. In this case, the correctness of that conclusion is plainly manifest; because the circumstances indicate that it never was the true intention of said Diggs to establish his homestead upon the tract in controversy, and since, though holding and renting the land to another, he made no effort to purchase it, until he found that the contestant was about to acquire a right thereto.

Daniels was the first settler, and he has complied with the law so far as can be reasonably required of him in view of the adverse possession and entry of Diggs, and without having any evidence whatever of legal right to occupy the land himself, owing to the erroneous action of the Register. I am, therefore, clearly satisfied that said Daniels should be permitted to complete his settlement, and upon proof of compliance with the law, to enter the land, the entry of Diggs being first cancelled.

Very respectfully, &c.,

MOSES KELLY, Acting Secretary. Commissioner of the General Land Office.


No. 477. Inhabitancy of land before the extinguishment of the Indian title, or before survey, not fatal to the right of Pre-emption.


March 2, 1857. Your letter of 27th, in regard to the conflicting claims of Allen and Pike, returned with letter of 25th ult., has been received. The fact, as understood by me, was, that the settlement was commenced previous to the extinguishment of the Indian title and the survey, but continued afterwards in good faith. My decision was merely intended to sustain the point, that it was not necessary for the pre-emptor to make a new settlement, but to prosecute the old one in such a manner as to evidence his bona fide intention under the pre-emption law.

R. M'CLELLAND, Secretary. Commissioner of the General Land Office.

No. 478.

Occasional absences of a settler will not invalidate his right. The Act of

1811, denies the right of Pre-emption to those who quit or abandon their own land, not to those who make an actual sale. Decision in case of Niles V. Larson.


October 10, 1857. The first settlement on the land in dispute was made by Larson, and although it is shown that after moving upon the land, he and his family were absent therefrom at divers times, yet there is no evidence that he had any

other dwelling, and his occasional absence would not work a forfeiture of his rights under the pre-emption act.

The sale of the land by Larson, which he owned and on which he resided prior to the commencement of his settlement on the land in dispute, conveyed an equitable title to the purchaser. The contract appears to have been entered into and fulfiled in good faith. The evidence does not justify the belief that any fraud was intended to be practised.

That clause of the Act of 1841, which provides that no person who shall quit or abandon his residence on his own land shall acquire any right of pre-emption under said act, does not apply to cases of this character. It was clearly intended to prevent those persons who should abandon their own land, for the purpose of acquiring an additional quantity, from obtaiuing the benefit of the law, and does not apply to cases in which a bona fide sale has been made. You will, therefore, instruct the Register and Receiver at La Crosse, to permit said Larson to enter said land, upon his conforming to the other provisions of the law.

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

No. 479. A claimant required to remove his house on the land claimed, where a

mistake had occurred in its location, before his entry is permitted. Decision in the case of the conflicting Pre-emption Claims of Isaac Sager and Thomas Donahoe.


March 13, 1858. At the time Donahoe settled upon the land in dispute, and filed his application therefor, Sager had made improvements thereon and had filed his declaratory statement therefor. It appears to be clear and unquestionable that it was Sager's bona fide intention to acquire a right of pre-emption to this quarter-section, and his declaratory statement was evidence and notice of such intention. The question is not clearly settled, whether or not a part of Sager's house was situated on the land in dispute. However, I am of the opinion that this defect may be remedied by the removal of his house upon the land, before his entry is completed, it being perfectly clear that he intended to put it there. The Register and Receiver may, therefore, permit him to enter said tract when his residence shall be fixed thereon, upon his complying with the further provisions of the law.

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

No. 480. A Pre-emption Claimant, who fails to reside on the land claimed, not



May 29, 1858. . Sir:-I have the honor to enclose herewith, for your examination, the testimony and other papers relative to the conflicting pre-emption claims of James H. Sayre and Stephen Barnes, to the northwest quarter of section 26, township 10 south, range 7, east, in the Ogden, Kansas Territory, District.

The settlements by the parties are alleged to have been made prior to the survey of the land in controversy.

The subdivisional lines were run in the field between the 13th and 27th of May, 1857, and both parties filed their declaratory notices within three months thereafter, as required by the Act of 22d July, 1854. (No. 245.)

The Register and Receiver, in their report of 11th November last, decided adverse to the claim of Sayre, and in favor of that of Barnes.

The testimony shows that Barnes took a claim on a tract adjoining the one in controversy, in the fall of 1855, but that he subsequently abandoned it; and early in 1856, (about four weeks after the settlement by Sayre,) commenced building a cabin on the land in dispute, which he moved into on the 30th of May, 1857. This cabin does not appear to have been completed, for it is shown that there was no roof on it one week previous to the trial of the case, to wit, about 3d of November, 1857.

It is uncertain where Barnes made his home from the time of his alleged settlement until the examination of the case. There is nothing to show that he made the land in dispute his permanent home; but on the contrary, the weight of evidence shows that he resided, the greater part of his time, in the town of Manhattan and elsewhere.

James F. Sayre settled about the middle of January, 1856, has made improvements valued at several thousand dollars, and has continued to reside upon the land, making improvements, ever since.

I am of opinion that the Register and Receiver erred in awarding the lauds to Barnes, and would, therefore, recommend that their decision be reversed, and that they be instructed to permit Sayre to consummate his claim by entry.

I have the honor to be,
Very respectfully, your obedient servant,

Hon. Jacob Thompson,

Commissioner. Secretary of the Interior.

The Commissioner's views sustained by Secretary Thompson, in letter of 29th June, 1858.

No. 481. A Claimant who spends the greater part of his time on a tract formerly

claimed by him, does not become an inhabitant, in the meaning of the law, of an adjoining tract by occasional occupancy thereof:


September 13, 1858. Having revised the proof, and considered the arguments, letters and reports, which accompanied your communication of the 11th ultimo, submitting the pre-emption case of John R. Shipp v. James A. Butler, from the Kickapoo, Kansas, Land Office, I herewith return the papers pertaining thereto.

It appears that, before the survey thercof, said Shipp purchased a claim from a former settler, which embraced the land now occupied by his mother, and the tract in controversy. That prior to the survey of the meridian line, on the 17th of September, 1855, improvements were made by said Shipp on both tracts. Lewis Shipp, the father and witness of the claimant, testifies that “from March till September, 1855, the two claims were considered one claim." Any improvements made by said Shipp on the disputed tract prior to the 17th September, 1855, must, therefore, be considered as having been made in connection with those on the adjoining claim. In his first statement he alleges settlement on the land in contro. versy, on the 19th of September, 1855. No sufficient reason is shown why he should be permitted to change the date of his settlement, and he must, therefore, be bound by his first statement. Butler also claims to have made his settlement on the 19th of September, 1855.

As to the inhabitancy by said Shipp, of the land in controversy, Lewis Shipp, after testifying that his son occupied the house on the land in dispute, on particular nights when witness staid with him, says, “ I have reason to think he staid other nights, but as a general thing he did not. John Thornburg testifies, that the claimant Shipp,“ has been living, or I have seen him occasionally at work on the claim adjoining the one in dispute; I never saw him at work on the claim in dispute.”

John H. Thornburg testifies, that after Butler's settlement he had a conversation with Shipp, and “from that time to the present, Shipp has lived with his mother.' It is also in proof, that Shipp's stock is kept, and his washing done on the adjoining claim. In view of these facts, I am of the opinion that said Shipp has not established any valid right to

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