No. 415. Circular respecting fees for pre-emption sales or locations. Gentlemen:-It has been represented to this Office, that a practice has obtained at some of the local land offices of making out, or preparing, preemption papers, and charging money for the service, and such charges have been made the subject of complaint. It is therefore deemed proper to issue the following instructions: 1st. Any such charges are without authority of law, and against the orders of the Department. It is proper, however, to add, that the duties of the local land officers which are prescribed by law and instructions, do not enjoin upon the Register and Receiver the making out or preparation of papers for claimants-that being a matter to be attended to by the preemptors themselves—yet it is the desire of the Department that all reasonable facilities and information shall be given by the Register and Receiver to parties, to enable them properly to prepare and present their claims for your official action thereon. For such official action, however, you have a legal right to a fee in virtue of the 12th section of the pre-emption Act of 4th September, 1841, (No. 48,) which declares that each officer is entitled to receive fifty cents for his services in acting upon each case of pre-emption; but as, in many instances, the parties do nothing more than file the "notice" required by law, this Office has long since determined that there is no objection to the Register receiving his fee (fifty cents) at the time of filing such notice, making subsequently no further charge, but that, as the Receiver has no labor in the case until the proof is filed and submitted for his action, the latter officer has no right to the fee until he shall be called upon to perform the duty for which payment is provided. 2d. By the 2d section of the Act of 22d March, 1852, (No. 190,) chap. 19, Registers and Receivers are "authorized to charge and receive the same compensation or per-centage for their services in locating all Military Bounty Land Warrants issued since the 11th February, 1847, as they are entitled to, by law, for the sales of the public lands for cash at the rate of one dollar and twenty-five cents per acre. General Land Office Bounty Land Circular of 3d May, 1855, (see Title 10,) contains the tariff in each case allowed for locations of such warrants; which, of course, embraces the locations of pre-emptors. The following fees are chargeable by the land officers, and the several amounts must be paid at the time of location : For a 40-acre warrant, 50 cents each to the Register and Receiver-total $1 00 For a 60-acre warrant, 75 cents For an 80-acre warrant, $1 1 50 3d. By the act of 12th June, 1840, chap. 35, the district land officers are required to administer any oath, requisite under law, in connection with the entry or purchase of any tract of land; but it is thereby declared that they "shall not, directly or indirectly, charge or receive any compensation for administering such oaths." You are requested to acknowledge the receipt of this communication, and enjoined strictly to observe its requirements. Very respectfully, your obedient servant, THOS. A. HENDRICKS, Commissioner. Register and Receiver. TITLE 3.] No. 416. PRE-EMPTION CLAIMS. Pre-emption Acts 1841 and 1843. GENERAL LAND OFFICE, Gentlemen :-By the 4th section of the Act of the 3d of March, 1843, (No. 72,) it is declared, that, "where an individual has filed, under the late pre-emption law, (1841,) his declaration of intention to claim the benefits of said law for one tract of land, it shall not be lawful for the same individual, at any future time, to file a second declaration for another tract." This prohibition is held by the Department to extend to both classes of lands, un-offered and such as are subject to private entry. Where a claimant, however, of either class of lands, files a declaration which may prove to be invalid in consequence of the land applied for not being open to pre-emption, or by the determination against him, as a conflicting claimant, or from any other similar cause, which would have prevented him from consummating a pre-emption under such declaration— such illegal filing will be treated as a nullity and as no inhibition to his subsequently filing a legal and proper declaration for the same tract, should it become liable to pre-emption, or for any other land; it being the purpose of the law to allow a claimant a pre-emption upon one tract, and nothing more, and also to prevent declarations from being presented or filed where the intention of establishing a pre-emption is not bona fide. Respectfully, your obedient servant, THOS. A. HENDRICKS, Commissioner. GENERAL LAND OFFICE, Gentlemen :-By the 10th section of an act of Congress approved 12th June, 1858, (No. 342,) the right of appeal, as heretofore provided by the Act of 1841, (No. 48,) to the Secretary of the Interior, from decisions of the district officers in contested pre-emption cases, now lies to the Commissioner of the General Land Office, whose decision shall be final unless appeal therefrom be taken to the Secretary of the Interior. Whenever, therefore, a party in such case shall enter his appeal through your office from the decision of this Office, such appeal will be held and regarded by you as a supersedeas against all further proceedings until such appeal has been determined, and you notified thereof, by this Office. A party may appeal through your office, or directly by communication to this Office. If he choose the former mode, it is your duty to transmit his appeal without delay to this Office. Respectfully, &c., Register and Receiver. THOS. A. HENDRICKS, Commissioner. No. 418. Regulations in Reference to Appeals. GENERAL LAND OFFICE, The following regulations are established by authority of the Secretary of the Interior, communicated to this Office in his letter of 21st instant, in relation to appeals to his Department proper, and will be observed and enforced from and after this date. In every case when an appeal may hereafter be taken from the decision of this Office, the party appealing, or his attorney, will be required to notify the Office in writing of the points of exception to its action. An opportunity will also be afforded to other parties interested in the case to be heard, if desired, and a reasonable time will be allowed. All parties to such appeals will be required to file in this Office all arguments and documents of whatever character, before the cases are submitted to the Department, in order that they may be referred to and considered in our report to the Secretary, if deemed expedient. In submitting cases on appeal, particular care will be taken to state the question or questions at issue and the grounds of appeal, and the action of the Department will be confined to those questions alone, unless sufficient cause should appear for looking beyond them. THOS. A. HENDRICKS, Commissioner of the General Land Office. No. 419. OPINIONS OF ATTORNEY-GENERAL. Settlers upon the public lands must comply with the conditions of the land laws, in order to avail themselves of the privilege of pre-emption. They must give the written notice of their settlement and intention to claim the right of pre-emption, within thirty days from the date of their entering personally on the land, with the intention of settling there. They must also inhabit, improve, build, pay, and make proof, within twelve months, to be entitled to preference over those who may have entered the same lands at the land office. ATTORNEY-GENERAL'S OFFICE, Sir :-I have examined the question presented in the report of the Commissioner of the General Land Office of the 25th March, ultimo, arising on the conflicting claims of Abraham Brauley, and Andrew Mullasky and Charles Maddy the former under the pre-emption law of 4th September, 1841, (No. 48,) and the two last by entries at private sale, to a portion of the public lands mentioned. The question is, from what point of time is the period of thirty days to be computed, within which a person intending to exercise the right of preemption, is to give written notice? The Commissioner has decided that the count commences from the date of the settler's entering on the lands and cutting timber to make the improvement required by law: the claimant, Brauley, contends that it ought not to commence until he had made it his abiding place by sleeping on the premises. The 10th section of the Act of 4th September, 1841, gives the right of pre-emption on such of the public lands as are liable to entry at private sale, subject to certain conditions. These conditions are specified in that and the subsequent sections of the law; but reference to the 12th and 15th only will be made in consideration of this question. A settlement must be made, and notice of an intention to purchase the lands as a pre-emptor, must be given within thirty days from the date of such settlement. The settler must inhabit and improve the same, and must erect a dwelling thereon, to entitle him to the privilege: and, to perfect his title he is allowed twelve months from the date of such settlement to exhibit proof that he has complied with the conditions, and to make payment. Settling, inhabiting, and improving, are all used as circumstances to be performed and proved; but they are not used as synonymous in their meaning. The object of the law is beneficent and it is entitled to a liberal construction in aid of the ends to be attained. But, to accomplish this, such a construction must be given as will protect the settler in his ultimate right, first, for thirty days from the date of his settlement, and secondly, for twelve months from the same time. The settler is entitled to this protection against the claims or entries of others. From the moment, therefore, that he enters in person on land open to such a claim, with the animus manendi, or rather with the intention of availing himself of the provisions of the act referred to, and does any act in execution of that intention, he is a settler. He must afterwards give his notice of intention, inhabit, improve, build his house, and make his proof and payment within the time stipulated, to perfect his right. But in every stage he is protected, until he fails on his part to comply with the conditions of the law. In this case, the Commissioner of the General Land Office appears to me to have decided correctly: that the date of Brauley's entering on the lands and cutting logs to build his house, with the purpose of purchasing as a pre-emptor, is the true date from which to commence the computation : and as he failed to give his notice within thirty days, and to make payment. and proof within twelve months from that date, he is not entitled to preference over those who had entered the same lands at the land office. Hon. Robert J. Walker, Secretary of the Treasury. J. Y. MASON. No. 420. A party, prima facie entitled to pre-emption, should not be precluded from receiving a patent for the land, by the mere allegation of his being an alien. ATTORNEY GENERAL'S OFFICE, Sir:-By your letter of last month, my attention has been called to the communication of 19th June, 1849, to my predecessor in office, as not having been answered. I find by the papers, that Barbara Ruff claimed a pre-emption to a tract of land under the Act of Congress of 4th September, 1841, (No. 48,) filed her declaration, made due proof, paid for the land, as far as depended on her complied with all the requirements, and did all that was in her power to do to complete her right of pre-emption. That Daniel Nugent, a subsequent applicant to purchase the same land by private entry, insists on his posterior application to purchase, and founds his application to override the prior application of the pre-emptioner, on the allegation that she is of foreign birth and an alien. Without deciding on the truth of this allegation, or its legal effect, my advice and opinion is, that it ought not to prevent the consummation of her title, and that a patent ought to be issued to the pre-emptioner, Barbara Ruff, who is prima facie entitled, and whose right is questioned, not for any irregularity in its acquisition, but on the intrinsic grounds of personal exceptions to her. The issuing of a patent to her will not conclude the rights of Mr. Nugent; he may still assert them in a court of justice, and if well founded they will be sustained against the elder patent, as is shown by the decision of the Supreme Court in the case of Lytle v. The State of Arkansas, 9 Howard, 238. Únder the circumstances existing here, my opinion is that the patent ought not to be withheld from the woman; that she is fairly entitled to all the advantages that may result from her being defendant in a court of equity, if Mr. Nugent should choose to prosecute his claim before the judicial tribunal. I am very respectfully, Yours, &c., J. J. CRITTenden. No. 421. DECISIONS. A pre-emption settlement and private purchase made on the same day, under given circumstances, the latter a bar to the pre-emption claim. DEPARTMENT OF THE INTERIOR, March 26, 1850. The pre-emption entry by Ott, should be set aside, and the private entries by Yon, carried into grant. It appears that Mr. Yon, after inspecting the land, set out for the land office in order to enter it, the day before Mr. Ott commenced his settlement. His intention may have been known to Ott, and his going or sending to the land office was indispensable, to enable him to enter the land. This the pre-emptor was not required to do, and it would be unjust to allow him to take advantage of this and step in and defeat the purchaser. But in this case it appears that Ott commenced his settlement the day after Yon had started to the Land Office, being the same day that Yon completed his entries, so that in equity and justice, Yon was one day in advance of Ott, in his endeavors to secure the land, and had in fact entered into a contract which was binding upon him, while the pre-emptor had done nothing from which he could not recede at pleasure, and as the law takes no cognizance of the fraction of a day, the private entries made and completed the same day on which Ott settled, are under the circumstances, a good and valid bar to the pre-emption claim. Very, &c., Commissioner of the General Land Office. T. EWING, Secretary. |