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the land in controversy, as against said Butler, who, it appears, has continued to inhabit and improve the same, from the time he moved there with his family, until the hearing of this case.

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

No. 482.

A party who inhabited land prior to the extinguishment of the Indian

title, did not thereby forfeit his right to Pre-empt the land. Where it is alleged that a sale has been made, but the deed is not produced,

the evidence should be of a clear and conclusive nature, in order to establish a forfeiture.

DEPARTMENT OF THE INTERIOR,

October 26, 1858. I have considered your report of the 28th ultimo, in the case of contest for the right of pre-emption in the southeast quarter of section 21, township 4, of range 20, Kickapoo District, Kansas; also your decision of the 24th ultimo, in favor of Topley Ralph, overruling that of the local officers, in favor of Harriet Hudgens, an appeal having been taken from your decision, by S. S. Baxter, Esq., counsel for Samuel C. Halsey.

Before the local officers, there were six different claimants for this quarter section. Two have abandoned their claims, leaving the contest to the three parties above mentioned, and one Augustus Morgucs. It is admitted, and was clearly proved on the trial, that Ralph was the first to improve and reside upon the land, and that his residence and cultivation extended to the date of the hearing before the local officers. It was claimed, in behalf of the other parties, inasmuch as his first location and improvements were made prior to the extinguishment of the Indian title, and his declaratory statement alleged a day of settlement accordingly, that he is not entitled to enter the tract by pre-emption; and of this opinion were the local offi

You have, however, properly overruled that opinion, holding that where the party applying to enter the land has shown, that after the extinguishment of the Indian title, he was the first to inhabit and improve the tract, and where such inhabitancy and improvement were in good faith, and prior to the filing of his declaratory statement, that he has established a right paramount to that of subsequent settlers, which should not be set aside because of the variance between his declaratory statement and the proof. The other objection to the claim of Ralph, which appears to be worthy of notice, is, that he has forfeited all right, because of sundry agreements claimed to have been made by him, respecting the title of some part of the quarter section in dispute; and, because at one time he took steps toward making the tract an addition to the town of Wathena, in company with other persons. The agreements, or articles of writing, relied on to show that the title which Ralph would acquire, on the admission of his claim, would enure to the benefit of others, in part, (if any exist,) appear to be in the possession of some of the adverse contestants, and are not produced in evidence, whilst parol evidence of their contents is offered. İn view of the confused statements in regard to such agreements, or sales, I am of the opinion, that the evidence is not of that clear and conclusive nature, which is requisite to establish a forfeiture. Nor do the steps which it is shown were taken by Ralph, for making an addition to the town of Wathena, show that he is not now seeking to perfect his pre-emption claim in good faith.

cers.

All the circumstances show, that in this case, it was ignorance and the want of a wise judgment, which led the claimant to a course which would create a well-grounded suspicion against his application, if that suspicion was not met, and, to a great degree, removed by the history of his settlement and residence on the land for more than three

years.

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

No. 483. Actual inhabitancy by a Pre-emption Claimant must be shown. A clain

ant who was driven from the land, may still establish his right.

DEPARTMENT OF THE INTERIOR,

November 4, 1858. I herewith return the papers received with your letter of 21st of September last, in the case of Silas F. Hail v. George C. Owen, each claiming the right of pre-emption to the southwest quarter of section 35, township 8 north, range 14, east, in the South Platte District, Nebraska Territory. The testimony shows that said Hail commenced improvements upon said land in May, 1856; that he rented to one Warden a house that had been previously built thereon; that said Hail made other meagre improvements, prior to June, 1857; that he slept upon the land about thirty nights, during the first year that he claimed the same, and that he did not finish the house commenced by him, until about thirteen months after his settlement is alleged to have been made. Hail does not appear to have been a bona fide settler, within the meaning of the law, and even in the absence of a contest, should not have been allowed the right of pre-emption. His entry must therefore be cancelled. It appears that said Owen, about the 20th of June, 1857, commenced building a house upon the land, that the same was burned down the day after, and that he was deterred by threats, and fears of bodily harm, from consummating his right of pre-emption. He has not, therefore, forfeited said right, but may hereafter, upon making proof of settlement, inhabitancy, and improvement, and upon complying now with the provisions of the law, be permitted to enter said land.

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

No. 484.

The law only requires that a Pre-emption Claimant shall have a dwelling

on the land claimed.

DEPARTMENT OF THE INTERIOR,

November 18, 1858. Sir:-The papers received with your letter of the 5th instant, pertaining to the pre-emption claim of Anderson Graham, to a certain tract of land in the Monroe, Louisiana, District, which is adversely claimed by William S. Grayson, under an internal improvement warrant location, are herewith returned. There is no question but that said Graham is a bona fide settler on the land in controversy, and the only objection urged against his right of pre-emption is, that he did not erect a dwelling house thereon. He had

however, purchased a building, which had been erected by a former settler, in which he resided, and still resides. He therefore has a dwelling on the land, and this is all the law requires on that point.

Your decision in favor of the right of said Graham, to enter the land claimed by him, is hereby affirmed, and the patent will accordingly be delivered to him.

Very respectfully,
Your obedient servant,

J. THOMPSON, Secretary.
Hon. Thos. A. Hendricks,

Commissioner of the General Land Office.

NO. 485.

the survey.

Inhabitancy of public land before their survey, will neither constitute the basis of a right, nor create a disability of Pre-emption.

DEPARTMENT OF THE INTERIOR,

December 28, 1858. Sir :-Having considered your report and the papers connected with the appeal of the attorney for the New Orleans, Opelousas and Great Western Railroad Company from your decision approving the pre-emption claims of Theodore F. Thieneman, Frederick Miller and Camille St. Amant, to lands in sections 1 and 2, township 14 south, range 20, east, I am of the opinion that the evidence and facts in the case fully establish the rights of the said pre-emption claimants to the lands in question.

You report that the claims referred to were cancelled in 1856, for the reason that the settlements by the respective claimants were made before That in 1857, "representations having been made to the effect that the

, settlements were commenced after the survey,” testimony was ordered to be taken on this point. That from this testimony it appears that although the settlements of the parties were commenced before the survey, the claimants continued their improvements after the surveys were made, and you decided that the claimants were entitled to the pre-emption privilege. ” The only question presented for my decision in this case is, whether the fact that the pre-emption claimants settled upon the lands prior to the public survey thereof, would incapacitate or disqualify them from acquiring a right of pre-emption thereto. This question was decided in the case of Savie v. Collingham, referred to in your report, and I find nothing in the arguments and papers in the present case, to change or modify my views upon it. A pre-emption settlement under the Act of 1841, as such, cannot commence upon the public lands until the same are surveyed, because the said act provides for pre-emption only on surveyed lands. The word "settlement," as used in the pre-emption laws, has a peculiar and technical meaning. A squatter's residence and improvement upon unsurveyed lands does not constitute a “settlement as contemplated in the Act of 1841. But the said act does not annex the penalty of a forfeiture of all right to acquire lands by pre-emption or otherwise after they have been surveyed, because the party claiming such right may have moved and resided upon the lands claimed before their survey.

No right of a resident on the public lands, under such circumstances, will attach to the lands upon which he so resides, before they are surveyed. Immediately upon such lands being surveyed, however, they become subject to pre-emption, and if a prior settler should then proceed to give notice, or if he has already filed his declaratory statement, and does not withdraw or revoke the same, and shall comply with the requirements of the law in other respects, his right of pre-emption will be complete. His inhabitancy of the lands before survey, would neither constitute the basis of a right, nor create a disability of pre-emption.

Patents will accordingly be issued to the above-named pre-emption claimants.

The papers submitted to this Department on the 8th ult., are herewith returned.

Very respectfully,

Your obedient servant,

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

No. 486. A party whose original claim was rejected for non-inhabitancy, may, in a particular case, be permitted to make proof of continued residence, &c.

DEPARTMENT OF THE INTERIOR,

January 7, 1859. In the case of Taylor v. Bell, from the land office at Superior, Wisconsin, which was returned to your bureau on the 15th ult.,* it has been represented to this Department that, since the date of the hearing before the Register and Receiver, the said Taylor has inhabited the land claimed by him, and still continues to inhabit the same; and application has been made in his behalf for permission to be granted him now to make proof in support of the right of pre-emption which he claims.

The decision heretofore rendered adverse to the claim of said Taylor, was based upon his failure to comply with the law with regard to inhabitancy. The testimony in the case fully shows that he had not, at the time of the hearing before the Register and Receiver, inhabited the land so as to entitle him to the right of pre-emption thereto. If, however, he is now prepared to show a compliance with the requirements of the law, no objection is perceived to allowing him to produce proof in support of his alleged right of pre-emption, upon due notice being given to all parties interested, and to all adverse claimants, if any there be, who will be permitted to attend and contest the same.

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

No. 487. The fear of bodily harm may excuse a Settler for abandoning his settle

ment until the cause of fear is removed, but no longer.

DEPARTMENT OF THE INTERIOR,

Washington, August 5, 1859. Sir:- The case of George W. Goss and Napoleon B. Short, contestants for the right of pre-emption to the southeast quarter of section 1, township 13 south, range 19, east, Lecompton district, Kansas, which was submitted

* See No, 449.

*

with your report of the 29th March last, is one that has elicited much conflicting testimony, and strong expressions of counsel on each side, in favor of their respective clients.

The Register gave a strong opinion in support of the claim of Short, and the Receiver an able one in favor of the right of Goss. The first conclusion of your office, was in support of the Register's view of the case; but now, on a personal re-examination of the testimony by the commissioner himself, he submits his recommendation in favor of a reversal of the land office decision of the 20th January, 1859. Having examined the case with care, I am satisfied of the legality and justice of the general conclusions of his report, and therefore hereby reverse the decision of the General Land Office, of the 20th January, 1859, and award the entry of the land to George W. Goss.

I am constrained to say that those views of the case, which would lead to a conclusion in favor of Short, appear to me to be based upon a misapprehension of the true scope and intent of the laws conferring pre-emption rights in cases of this kind. The pre-emption laws are designed for the benefit of bona fide settlers on the public lands, who are otherwise qualified, and who have gone there and established themselves in a home of their own. Hence, the Act of 1841 says, that the pre-emptor “has made, or shall hereafter make; a settlement in person on the public lands, and

shall inhabit and improve the same, and who has, or shall erect, a dwelling thereon." These phrases are brought together in the law by the copulative conjunction. A personal settlement, inhabitancy, improvement, and the possession of a dwelling-house on the land, are all required.

Short effected an entry of this quarter-section on the 28th November, 1857, without notice to Goss, who was, at the time, living on the land and in possession of extensive improvements. The fact that Goss had filed his declaratory statement was not noticed, not being marked on the plat. Soon after the entry, this mistake was discovered, and on the application of Goss to contest, both parties, by mutual consent, and in presence of opposing counsel, brought forward their testimony before the Register, to support their claims.

In August last, a re-investigation having been ordered by your office, before that testimony had been forwarded, it was thereafter, by agreement of parties, transmitted for the decision of the case thereby, as though it had been regularly taken, after the order was made.

It is from that testimony alone that my conclusions have been formed. On examination thereof, it appears that the tract in controversy was surveyed in May or June, 1856, and that both the claimants filed their declarations directly thereafter, as required by the twelfth section of the Act of Congress, of the 22d July, 1854.

That Napoleon B. Short, about the 1st November, 1854, had commenced the erection of a house, which we will assume was upon the land in dispute, (which is not entirely clear, however,) and had raised it to the height proper for it to receive a roof. This house was within the claim lines of one Jonathan F. Morgan, who notified Short of the fact, and objected to its crection. That Morgan made complaint to an organization called the Squatter's Association, by which he was furnished with assistants, who went with him, and in his presence, and by his encouragement, tore down the house and hauled the logs into the town of Lawrence, where they were afterwards built into a log-house.

Short, however, who was present when his cabin was torn down and moved off, remained upon the land for three days thereafter, and his reason for then abandoning it without further attempt at improvement was, that

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