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he had been threatened, on the occasion of pulling down the cabin, with personal violence, if he should attempt to build another on that claim. The fear of bodily harm, may excuse a settler on public lands for abandoning his settlement till the cause of fear is removed. We may say, that Short was justifiable in abandoning this land on the 20th November, 1854. But, it appears, that not long after those occurrences, and long before the public surveys were made, Morgan, who had instigated the demolition of Short's house, and the threats against him should he erect another, sent him word that if he would return, and settle again in the same place, he would help him, and would compensate him for the destruction of the house.
This message from Morgan to Short, was sent a second time by another witness, but it does not appear that Short responded by word or action, that he would return to his settlement. After this, what excuse had Short for remaining away from the land longer? The threats against pro-slavery men, that they would find it too hot for them to live in that community, did not affect Short, for he continued to live in the community for twelve or fifteen months after those threats were made; and it is not shown that there was greater reason, on account of political sentiments, for a man to fear to live on a farm near by the town, or on this particular land, than to live in the town itself.
It was the threat against putting up another house on the claim, that justified his leaving it. But when this threat was withdrawn by the man whose interests and instigation prompted the threat, the justification for the original abandonment no longer remained good against future neglect. When this second message was sent, it was spring, the very season of the year which he ought to embrace for the cultivation and improvement of a tract of land on which he had settled, and which he was intending to inhabit, cultivate and improve, as his present and future home. All that he did, was to cause a few logs to be taken back on the tract by one Corell. It is not shown that he went there in person, or ever attempted to put those logs into another house, or to improve and cultivate the land. In November, 1857, however, he went back upon the land, then covered with extensive and valuable improvements, in some parts of it, and erected a frame shanty, of a temporary character, in which he staid a few days, and then went to the District Land Office and made his entry, uncontested. After this he does not appear to have returned to the land, for his brother, under date of December 10th, 1857, speaks as though Napoleon Short's residence was, at that time, in Leavenworth, and had been there for eight months last past.
Such is the history of Short's connection with the land. It is clear that he has not inhabited, cultivated and improved it, as the law requires. His first settlement, admitting that it was fully effected and completed in good faith, was abandoned, because he was afraid to begin building a second house there. When that fear, and the cause for it, had both passed off, he did not return; and thereafter bis abandonment became voluntary. Meantime, Goss, so far as Short is concerned, finds the land unoccupied. He settles, improves, files in time, and shows amply, a compliance with the requirements of the law. It is clear to me, that Short could not go back in 1857, and by erecting a temporary shanty, which he could have built as well in 1855, obtain the benefit of all the improvements which Goss had made in the meantime.
It may be admitted, that Short set up a claim to this land in 1854, that he gave notice of his claim and of his intention to pre-empt it, and that Goss was well aware of all this, but neither Goss, nor any other adverse claimant was bound to notice Short's claim, any further than as a matter of
caution. He would have to notice, however, the settlement, occupancy, residence and cultivation of his adversary, his legal qualifications to take a pre-emption right, his filings, and other acts, done under the law. Taking due notice of these, they did not entitle Short to the land, and we cannot deny to Goss the right to enter, as the next settler in order of time, who has done upon the land, and off of it, what the law requires; and having done which, he has clothed himself with the right which the law bestows on him in preference to others, viz., the right to enter the land at the minimum price.
The papers in this case are herewith returned to your office, and as so much warm discussion has been elicited on both sides, I suggest that copies of the Commissioner's report of the 29th March last and of this decision, be communicated to the local officers, for the information of the parties and their attorneys.
J. THOMPSON, Secretary. The acting Commissioner of the General Land Office.
No. 488. It is not essential that a Pre-emption Claimant should have resided the
upon land, to entitle his heirs to the right of entry.
DEPARTMENT OF THE INTERIOR,
August 12, 1859. Sir :-The Register and Receiver at Kickapoo, Kansas Territory, have reported in the case of the Heirs of John Fee, deceased, v. John T. Brady, "That Fee, in his lifetime, settled on the land in dispute, several months previous to the time that Brady went on to the same, that said Brady went on said land by permission of Fee, before the legal survey of the same was made, with the understanding that if his house should fall on Fee's claim, he, Brady, would abandon the same,” and “that although at the time of his death said Fee was not on the land in dispute, not having completed his dwelling house, yet it is obvious his intentions were those of a bona fide settler,” and they conclude that “Fee's heirs are entitled to pre-empt the land in dispute.
You have affirmed this decision, and upon an investigation of the facts of the case I am satisfied that such action is in conformity with the law of the case. Fee was entitled to " claim the benefit,” of the pre-emption law, and his heirs are now entitled to the land.
The papers which accompanied your letter of 30th May last, are now returned.
J. THOMPSON, Secretary. Joseph S. Wilson, Esq.,
Acting Commissioner of the General Land Office.
No. 489. An unmarried Pre-emption Claimant must inhabit the land claimed by him.
DEPARTMENT OF THE INTERIOR,
August 16, 1859. Sir :-The papers in the case of Milton Taffe v. William Babcock, the former claiming the right of pre-emption to a certain tract of land, which was entered by the latter, situated in the Springfield, Illinois, District, have been examined, in connection with your report of the 16th May last, and are herewith returned.
One of the positive requirements of the pre-emption law is, that the claimant of its benefits shall inhabit the land he claims. The counsel for said Taffe, in assuming that said claimant, being a single man, the law does not imperatively require “ that he should actually reside on the tract of land," has taken a position which is altogether untenable. Your action in cancelling the certificate of said pre-emption claimant, for non-compliance with the law and instructions, is accordingly hereby approved. The rights of the adverse party will be determined by your bureau, in accordance with its established rules.
MOSES KELLY, Acting Secretary. Commissioner of General Land Office.
No. 490. The law does not allow twelve months to a Pre-emption Claimant to com
mence his residence on the land claimed; and a failure to inhabit the same within that time, would work a forfeiture.
DEPARTMENT OF THE INTERIOR,
August 26, 1859. Sir:-- An examination of the case from the Fort Des Moines, Iowa, Land Office, involving the pre-cmption claim of Robert Hedge, contested by Jarvis E. Neal, under a private location of a land warrant on the same land, shows that Hedge alleges settlement on the land ou the 3d of July, 1857; that he filed the required notice in due time, and that about the 2d of July, 1858, he went upon the land and remained one night, which constitutes the only inhabitancy of the land within the year, that he has shown. The law does not allow twelve months to a pre-emption claimant to commence his residence upon the tract claimed; and a failure to inhabit for that length of time, unless under circumstances of an extraordinary character, would work a forfeiture of the right of pre-emption. In this case, the facts indicate evasion and bad faith; and I coincide entirely in the opinion expressed by you, adverse to his claim. The location of Neal being prior in date to that of Hedge, though, during the pendency of a pre-emption claim, was valid, and the patent should be issued to said private locator.
I enclose herewith the papers received with your letter of the Sth ultimo.
MOSES KELLY, Acting Secretary. To the Commissioner of the General Land Office.
IV. TOWN SITE CLAIMS. No. 491. A Mayor may enter town site lands under the Law of 1844. (No. 79.)
ATTORNEY GENERAL'S OFFICE,
March 21, 1859. Sir :-In compliance with the request contained in your letter of this date, relative to the suspended entry of the town site, I have to say that
I can see nothing on the face of the entry which ought to prevent a patent from issuing. It was made by the mayor.
The Commissioner of the General Land Office thought at first that it should have been made by the city council. The Act of 1844, which governs the subject, does not say that it must be done by either, but by “the corporate authorities.” Now the mayor is no less a portion of the corporate authorities than the council. Besides I do not know (and I suppose you do not,) whether there is any council under the charter of Kearney city. At all events, it appears that the mayor, being an official organ of the city corporation, has made an entry with the assent of all other parties. The presumption is a fair one, that he was authorized to do so. If he was, then he is the proper corporate authority. It is very clear, that when the mayor, in the execution of his official duty, entered the land on which the city stands, acknowledging all the proper obligations and trusts which he could and should have assumed for the benefit of the inhabitants, their title (that of the inhabitants) became perfectly good, and that it must be enforced in any court of law or equity. The object of the law was to give the owners of lots a good title to their property. When the patent issues under this entry they will have a good title; and I do not see the practical use nor the legal necessity of requiring another entry to be made; this opinion applies also to the case of Nebraska city,
I am, respectfully, yours, &c.
J. S. BLACK. Hon. J. Thompson, Secretary of the Interior.
No. 492. If the lands embraced in the application of the County Judge, under the
Act of 23d May, 1844, were selected and occupied as a town, no neglect to enter would restore them to Pre-emption under Act of 1841.
DEPARTMENT OF THE INTERIOR,
August 18, 1856. I return herewith, the papers in the conflicting claims of Johnson Cotton and Chester W. Pitt, which accompanied the letter from your Office of the 10th ultimo, on appeal from the decision of the land officers at Minneapolis, Minnesota Territory. It would appear that these conflicting claims interfere with a prior application by Judge Chatfield, in behalf of the town claimants of the town of Keposia, under Act of 1844, but that in consequence of the town pre-emption not having been proved up before the day of public sale of the surrounding land, and therefore as alleged, for
A tract of public land within the limits of the City of Chicago, having been reserved for a fort, and public buildings placed thereon, a portion of the tract was afterwards sold, pursuant to a plan on which the whole tract was laid down, as divided into lots and streets. The Court decided, that it was not within the corporate powers of the city to open these streets on the land not sold to private persons.
United States v. Chicago, 7 How. 185; 17 Condensed Reports, 82.
Portions of the public lands, to the amount of three hundred and twenty acres, may be taken up by individuals or pre-emptioners, for city or town sites.-(Opinion of Attorney-General, vol. 7, p. 733.)
The same rules as to proof of occupation, apply in the case of municipal, as of agricultural pre-emption.-Ib.
feited, the conflicting claims of the pre-emptors are alone considered, and a determination made as if no town claim had ever been made, or had ever existed.
If the land embraced in the application of Judge Chatfield, was “selected” and “occupied” as a town site, it was thereby taken out of the purview of the pre-emption Act of 4th September, 1841, and was not subject to its operations, and no abandonment of the town proprietors of their rights to make proof and entry of their claim, could restore the lands thus excepted from the operations of the law of 1841.
If there was therefore such town, neither Cotton nor Pitt has any right to any portion of the land embraced in the application of Judge Chatfield, defining the limits claimed for said town.
If there was no such town, then the decision of the land officers in favor of Cotton is approved, &c.
R. M-CLELLAND, Secretary. Commissioner of the General Land Office.
Construction of the Act of 23d May, 1844, given. Half-breed Indians
who had availed themselves of treaty stipulations, as such, are not entitled
to the benefit of the Pre-emption law. A selection of lands for a Town site, unaccompanied by actual occupation,
will not be recognized. The parties for whose benefit application is made to enter a Town site, must be residents thereon.
DEPARTMENT OF THE INTERIOR,
June 26, 1858. Sir:-I herewith return the papers which were submitted to this Department by your letter of the 18th of February last, pertaining to the case involving the conflicting pre-emption claims of the alleged proprietors of Superior City, claiming the right to enter fractional section 13 and a portion of fractional section 24, township 49 north, of range 14, west, in the Fond du Lac, Wisconsin, Land District, under the Act of 23d May, 1844, which is contested by Charles Brissett, Antoine Warren, Basil Dennis, and Vincent Roy, within whose entries, under the Act of 1841, the said land is included.
The said parties, - Brissett, Warren, Dennis, and Roy,--are persons of the class or description known as mixed bloods of the Chippewa Indians of Lake Superior. By article fourth of the treaty with the Chippewa Indians, dated the 2d day of August, 1847, it is stipulated that the half or mixed bloods of the Chippewas residing with them shall be considered Chippewa Indians, and shall, as such, be allowed to participate in all the annuities which shall hereafter be paid to the Chippewas of Mississippi and Lake Superior, due them by this treaty, and by treaties heretofore made and ratified."
By the 7th clause of the 2d article of the treaty with the Chippewas of Lake Superior, dated 30th of September, 1854, it is stipulated that each head of a family or single person over twenty-one years of age at the present time, of the mixed bloods belonging to the Chippewas of Lake Superior, shall be entitled to eighty acres of land, to be selected by them under the direction of the President, and which shall be secured to them by patent in the usual form.”