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That these claimants, under the Act of 1841, are of the class comprehended within the terms of said last quoted clause, is obvious and unquestionable.

In addition to the testimony of witnesses with regard to the fact that the names of said claimants were on the pay-rolls of the Indians, and that they received annuities at the time different payments and distributions were made, it appears by the certificate of the second auditor of the Treasury filed in this case, that their names were on the half-breed list following the annuity roll of the Chippewa tribe of Indians of Lake Superior, and the payments to them are attested by witnesses who certify under date of 15th September, 1855, that the signatures or marks of the several Indians and mixed bloods were affixed to the receipt roll in presence of said witnesses.

The name of each of said pre-emption claimants appears on the list of persons entitled to claim land under the seventh clause of the second article of the treaty of 1854, received in the General Land Office from the Commissioner of Indian Affairs.

Being thus entitled, by reason of their Indian character, to certain rights and privileges conferred by treaty, and having, to some extent, derived the benefits and advantages secured to them thereby, I am not disposed to regard the claim which they now assert to the right of pre-emption as citizens of the United States, with any special favor and consideration. But these parties have entirely failed to show that they have settled upon and improved the land claimed by them in good faith for their own use and benefit. The facts disclosed by the evidence on file indicate beyond reasonable doubt that they were the employees of others, under whose direction and for whose benefit they were acting.

In view of the facts hereinbefore stated, the pre-emption entries of the said parties, Charles Brisset, Antoine Warren, Basil Dennis, and Vincent Roy, Jr., are invalid, and I hereby direct that the same be cancelled.

The Act of 23d May, 1844, (No. 79,) entitled “An act for the relief of citizens of towns upon the lands of the United States under certain circumstances,” provides for the entry of any portion of the surveyed public lands which has been or may be settled upon and occupied as a town site. The title, as well as the words employed in the body of the act, clearly demonstrate that the same was intended to apply exclusively to actual and existing

It refers to and recognizes only such surveyed public lands as are settled upon and occupied as a town site, not such as have been selected by non-resident proprietors, or claimants, as the site for a city or town, as exempt from entry under existing pre-emption laws. There is no provision made for filing notice of selection, and the act does not specify or contemplate any proceedings whereby lands which have merely been so selected shall be excluded from the operation of other pre-emption laws.

Prior to the passage of this Act of 23d May, 1844, it was the policy and settled practice of the government to prohibit the sale or acquisition by pre-emption, of lands which were occupied as town sites or trading places, the object of such prohibition being to secure the interests of the government by the sale of the lands at their enhanced value, in such manner as might be deemed best calculated to effect that object.

That clause in the Act of 1841, which provides that no portions of the public lands which have been selected as the site for a town shall be liable to entry under and by virtue of its provisions, cannot, therefore, be construed to recognize the right of selection by individuals, of portions of the public lands for town sites for their own use and benefit, since at that time the system of granting rights of pre-emption on lands of that character had not only not been adopted, but was directly at variance with the established

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practice and policy. It was manifestly not the object of the law to withhold from pre-emption such lands as individuals might designate or select without authority as the site for a probable or prospective city or town. If so, it would have been within the power of any person or persons to defeat the pre-emption claims of those whom they were interested in opposing, by alleging that the particular land upon which such claimant had settled, had hitherto been so selected.

It was, then, not intended by said clause of the Act of 1841, to withhold lands which might be regarded as eligible, or adapted for town purposes, from pre-emption, until claimants should have an opportunity to make settlements and improvements, since at that time it was not to protect the interests or supposed rights of citizens of cities or towns that such lands were withheld and excluded from pre-emption, and therefore the supposition that said clause would recognize and protect from the claims of others such selections, is erroneous.

The Act of 231 May, 1844, further provides that the lands so settled upon and occupied shall be entered in trust for the several use and benefit of the occupants thereof. Referring to the title of the Act, “ For the relief of citizens of towns,” &c., it may be easily determined that by the term “occupants” is meant those who are settlers or residents, and that it only embraces the citizens thereof. The parties for whose benefit and in whose behalf the application, dated September 9, 1856, and signed by Michael S. Bright, county judge of Douglas county, was made, have not shown that they are occupants within the meaning of the law, nor does it appear that there are not occupants of the town who would be entitled to the benefits of the law in preference to the so-called “proprietors of Superior City."

Said act further provides that the entry of the land intended by this act shall include only such land as is actually occupied by the town, and shall not, in the whole, exceed three hundred and twenty acres.

The Act of 1841, provides for the entry of any number of acres not exceeding one hundred and sixty, or a quarter-section of land, by those claiming the right of pre-emption under it. The limitary words of the two statutes are essentially different. The one limits the entry to such lands only as are actually occupied by the town; the other gives the right of acquiring any number of acres not exceeding a quarter-section.

Before an entry is permitted under the Act of 230 May, 1844, it must be shown that one or more of the legal subdivisions of the public lands is actually occupied by the town, and the nature, extent, and sufficiency of such occupation must be determined by the facts in each particular case.

The application above mentioned, to obtain the benefit of the Act of 1841, not being consistent or in accordance with the views hereinbefore expressed, is hereby rejected. Very respectfully, your obedient servant,

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

Commissioner of the General Land Office.

Same subject.

DEPARTMENT OF THE INTERIOR,

Washington, June 30, 1858. Sir:-The papers received with your letter of the 18th ult., in the case of the pre-emption claim of Thomas C. Healy, to certain land in the Minneapolis, Minnesota, District, contested by the alleged proprietors of the town site of “Waverly,” are herewith returned.

The mere selection, by persons claiming to be the proprietors of a town site, who do not reside thereon, of portions of the public lands, with a view of making improvements at a future time, does not exempt such lands from the operation of the Act of 4th September, 1841. The Act of 23d May, 1844, authorizes the entry of any portion of the surveyed public lands which have been, or shall be, settled upon and occupied as a town site, and, therefore, not subject to entry under the existing pre-emption laws. It also requires that the entry shall be made in trust for the several use and benefit of the occupants thereof, and such entry will embrace only such legal subdivisions as are actually occupied by the town.

The evidence in this case does not show which particular subdivisions of the land claimed are occupied by the town, nor whether the claimants are occupants thereof.

With regard to the settlement of Healy, more satisfactory proof that the same was made in good faith, and that he has complied with the provisions of the law, so far as it has been in his power so to do, will be required.

You are, therefore, requested to remand this case to the Register and Receiver, with instructions to require additional testimony to be

produced upon the points above mentioned. Very respectfully, your obedient servant,

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

No. 494.

Under the Town Site law, the only beneficiaries of the trust are the occupants

of the town. Between different Trustees, or parties claiming to be such, no preference will

be given to the first applicant. After incorporation, the corporate authoritiesbecome the legal Trustees,

and the authority of the county judge is superseded. Only such land as is actually occupied,can be entered.

DEPARTMENT OF THE INTERIOR,

Washington, July 9, 1858. Sir:-Your report of the 8th December last, has presented for my consideration, on appeal, the application filed by the corporate authorities of Monticello, and Lower Monticello, and the claim of Tobias G. Mealy, to enter by pre-emption, certain tracts in the district of lands exposed to sale at Sauk Rapids, now St. Cloud, Minnesota.

These applications conflict with that filed by the judge of the county court, to enter the town site of Moritzions. The judge claims adversely to the corporate authorities of Monticello, as to the northwest quarter of the southeast quarter of section 11; adversely to Tobias G. Mealy, as to the southwest quarter of the southwest quarter of section 12; and adversely to the corporate authorities of Lower Monticello, as to lot No. 1, and the east half of the southeast quarter of section 11, and lots Nos. 2 and 3, of section 12, all in township 121 north, range 25, west.

The application of the county judge, was filed in the local land office, April 6, 1857, that of the corporate authorities of Monticello, and that of Tobias G. Mealy, on the 27th of May following, and that of the corporate authorities of Lower Monticello, July 9, 1857.

The testimony taken in support of these claims, was concluded in August last, and the Register and Receiver decided against the claim of the county judge, and in favor of the other parties; and from that decision an appeal has been taken to this Department.

It appears from the testimony, that the incorporated town of Monticello, the county seat of Wright county, Minnesota, is situate on the lands, or some portions of the lands, sought to be entered by the corporate authorities of said town. It also appears, that there is a town situate principally, if not entirely, on lot 3, of section 12, and lot 1, of section 11, which has been incorporated under the name of Lower Monticello, by an Act of the Territorial Legislature, approved May 19, 1857, entitled " An Act to incorporate certain towns.'

In behalf of the application of the county judge, it is contended, that this town is legally and properly named Moritzions, by virtue of a survey and claim, and the making and recording of a plat, by the proprietors of “ Moritzions,” prior to the survey, claim, and plat of the proprietors of “Lower Monticello; and that the application to enter having been made before the town was incorporated as "Lower Monticello," takes precedence of the subsequent claim of the corporate authorities, to enter the same lands.

In deciding the case, I am governed by the Act of Congress, approved, May 23, 1844, (No. 79,) entitled, “an Act for the relief of citizens of towns, upon lands of the United States,” &c., &c., which provides, “ that whenever any portion of the surveyed public lands has been, or shall be settled upon and occupied as a town site, &c., &c., it shall be lawful, in case such town or place shall be incorporated, for the corporate authorities thereof, and if not incorporated, for the judges of the county court for the county in which such town may be situated, to enter at the proper land office, and at the minimum price, the land so settled and occupied, in trust for the several use and benefit of the occupants thereof, according to their respective interests."

It is also by the same act provided, that the entry shall be made before the commencement of the public sale of the body of land, in which it is included, and that the entry shall include only such as is actually occupied by the town, and be made in conformity to the legal subdivisions of the public lands, authorized by the Act of 24th April, 1820, (No. 12,) and shall not in the whole exceed three hundred and twenty acres.”

It will be remarked, that this law provides that an entry of public lands, which have been actually settled and occupied, as a town-site, may be made by a trustee, for the use and benefit of the occupants.

The only beneficiaries of the trust, are the occupants of the town. This law recognizes no other proprietors, and this Department cannot recognize or protect claims or interests of non-resident shareholders, or lot owners.

In regard to the “occupants” of any town or place entitled to the benefit of the Act of Congress, under review, their rights and interests remain the same, are fixed by the same laws, and must be determined and secured to them, on the same principles, whoever may be trustee or trustees of the legal title to the lands. They cannot, therefore, so far as the action of the

officers of the Land Department is concerned, be supposed to have any

direct interest in having the legal title vested in any one except the party legally qualified to accept and

execute the trust. The Act of May 23, 1844, in my opinion, recognizes but one trustee as legally entitled to make an entry of a town-site, and his qualifications must be judged of, and found to be legal, at the time the entry is admitted, and not at any previous time. Between different trustees, or parties claiming to be such, who are seeking an entry of the same land as a town-site, no preference is given to the first applicant. The proper question for the officers of this Department to consider, in such cases, is which is the party recognized by the law, as having the qualifications to accept the trust.

Should we admit therefore, in this case, that the application of the county judge, on the 6th of April, 1857, to enter the town-site of Moritzions, was sufficient, and in the proper form, and accompanied by a tender of payment, and that he was at that time the legally recognized trustee, the fact still remains, that the entry was not admitted at that time.

Before any entry was effected, viz., May 19, 1857, the town was incorporated by the name of “Lower Monticello;" and after that incorporation the corporate authorities became the legal trustees for the occupants of the town, and we accept them as the proper parties to make the entry. By the incorporation, the authority of the county judge is superseded and concluded.

As to the quantity of land which the trustee or trustees may enter for the use and benefit of the occupants of a town, that is clearly limited to “such land as is actually occupied by the town,”--that is, actually used by the residents of the town, for town purposes ; the entry must “ be made in conformity to the legal subdivisions of the public lands,” and “shall not in the whole, exceed three hundred and twenty acres, even though it might happen that more than that number of acres are occupied.

In case of the two towns of Monticello and Lower Monticello, the local officers may receive any further testimony, respecting the state of facts existing at the time, at which they may fix upon, to consider the matter; and should admit the entry, by the corporate authorities respectively, for so much land, by legal subdivisions, as is shown by satisfactory proof, to be actually used and occupied for town purposes. In the application of the party seeking an entry of this kind, and in the certificate of the Register of the sale of the lands, I deem it eminently proper, if not actually necessary, that it be set forth that the entry is for the use and benefit of the occupants of the town.

The papers which accompanied your report, are now returned, and the case may be remanded to the local officers for further proceedings, in accordance with the foregoing views. The claim of Tobias G. Mealy, is good for the land he seeks to enter by pre-emption, and he should be permitted to complete his entry.

Very respectfully,
Your obedient servant,

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

No. 495.

GENERAL LAND OFFICE,

October 18, 1858. Gentlemen :This Office has had under consideration the case of the “ Portland City" claim, in townships 1 north, and 1 south, range 1, east,

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