An actual entry upon part gives a constructive seisin of the whole tract to which the title extends. Ibid. S. P. Clarke v. Courtney, 5 Pet. 319. Miller's Heirs v. McIntyre, 6 Pet. 61. Sicard v. Davis. Ibid, 124.

But not if any part were in the actual possession of one having a better title. Ibid. Ibid.

In such case the seisin under the better title extends to all not actually occupied by the other. Ibid. Hunt v. Wickliffe 2 Pet., 201. Clarke v. Courtney, 5 Pet. 319.

An entry without title works a disseisin only of so much as is actually occupied. Ibid.

Where there is no visible adverse seisin of any part of the land, an entry by one of the several co-tenants, gives a seisin of the whole according to their titles. Thomas v. Hatch, 3 Sum., 170.

An entry is an ouster or not according to the intent with which the act is done; if made under color of right, it is an ouster, otherwise, trespass only. Ewing v. Burnet, 11 Pet, 41.

The legal title draws to it the legal seisin and possession, until displaced by an actual ouster. Ibid.

The right of a party in possession to the land claimed, cannot be tried collaterally, by setting off a claim for rent, against a legacy bequeathed to him by the alleged owner. West v. Smith 8 H., 402.

An enclosure is not indispensable to constitute possession; it is but one of the acts, from which an intent to assert ownership, and exercise possession, may be inferred. Ellicott v Pearl, 10 Pet., 412. s. c. l' McL., 206.

Payment of taxes for more than twenty-one years, without adverse possession gives no color of title, though it defines the extent of a claim. Girard v. Philadelphia, 2 Wall Jr. C. C. 301.

Ibid.

A mere entry to run lines does not amount to a disseisin. At common law, a party could not convey land, in the adverse possession of another. Bradstreet v. Huntingdon, 5 Pet., 402.

Adverse possession may be set up against any title whatever, to show the nullity of a conveyance executed by one out of possession. Ibid. Possession, though adverse, does not affect the title, except under the statute of limitation. Fields v. Squires, 1 Deady, 366.

Possession by the defendant of a wharf, under color and with claim of title, is sufficient to put the plaintiff to proof of a better title, or of an equal right to its use. Linthicum v. Ray, 9 Wall. 241.

Possession is presumed to be rightful until the contrary appear, and therefore, adverse to the title of any other claimant. Stark v. Starr, 1 Saw., 15.

A formal conveyance gives color of title to one claiming under it. Ibid.

A seisin in fee gives a constructive possession, and the party will be presumed to be in actual possession until the contrary appear. Lamb v. Burbank, 1 Saw. 227.

RESERVATIONS.

A military reserve may be abandoned by the government when it becomes useless for public purposes, and on due notice to the Secretary of the Interior, will be open to entry as other public lands. United

States v. Railroad Bridge Co., 6 McL., 517; Illinois Central Railroad Co. v. United States, 20 Law Rep., 630.

The reserve in Rock Island, though surveyed, never having been offered for sale, did not come within the acts of 1852, authorizing railroad companies to locate their roads through the public lands. Ibid.

The act of 1819, authorizing the sale of military reservations which had become useless, embraced only those lands which had been reserved and become useless at the passage of the act. Ibid.

A recital in a deed of such land, that it had become useless for military purposes, is evidence of abandonment. Illinois Central Railroad Co. v. United States, 20 Law Rep., 630.

The act of 1856, in connection with subsequent legislation, operated to reserve, for the purpose of aiding in the improvement of the Des Moines river, an equal moiety, in alternate sections, of the public lands, on or within five miles of the said river, between the Raccoon Fork and the northern boundary of Iowa. Wolcott v. Des Moines Co., 5 Wall.,

681.

Effect of a reservation of the right to use the land for fortifications Josephs v. United States, 1 N. & H., 197.

A military occupation without the knowledge of the President or Secretary of War, is not a reservation, within the meaning of the Oregon donation act. Johnson v. United States, 2. N. & H., 391.

The President may reserve from sale, and set apart for public use, parcels of land belonging to the United States; and he may modify, by reducing or enlarging it, a reservation previously made. Grisar v. McDowell, 6 Wall, 363.

That he has made the modification, as a compromise of an opposing private claim, does not invalidate the reservation.

A patent or instrument of confirmation, by an officer duly authorized to make it, followed by a survey, is conclusive evidence that the land was reserved from sale. Richard v. Phelps, 6 Wall, 160.

66

Lands specially reserved from sale become segregated from the public domain; and a squatter" thereon cannot recover ground-rent against his lessee, for the use of such lands; his lease being void, as against public policy, and the lessee not being estopped from denying his landlord's title. Dupas v. Wassell, 1 Dill., 213.

The location of a floating warrant on any part of the Shawnee reservation, conferred no right or title, under the treaties with that tribe, prior to its being thrown open to pre-emption and settlement on the 9th July, 1858. Walker v. Henshaw, 5 Chicago Leg. News, 433.

15

TITLE II-HOMESTEADS.

I. IN GENERAL.*

(A) ENTRY AND COMMUTATION.

No. 273.

CIRCULAR.

DEPARTMENT OF THE INTERIOR,
GENERAL LAND OFFICE,
April 21, 1870.

GENTLEMEN :-In order to secure uniformity in the administration of the Homestead Law, you are hereby directed, in regard to the Homestead affidavit, that where it is made before the clerk of the County Court the rule laid down in Section 3 of the Amendatory Homestead Act of March 21, 1864, must be strictly observed, in which rule it is stipulated the parties shall satisfactorily show in the testimony that their family, or some member thereof, is residing on the land they desire to enter, and that a bona fide settlement and improvement have been made, and showing further the cause of their inability personally to attend at the district land-office. The affidavit must be made before the clerk of the Court for the County in which the land is situated. Very respectfully,

JOŠ. S. WILSON, Commissioner. REGISTERS AND RECEIVERS, U. S. LAND OFFICES.

No. 274.

B. W. WILSON.

A party cannot initiate a homestead claim to land covered by an uncancelled prior homestead entry.

A qualified party may settle as a pre-emptor on unsurveyed land; and when it is surveyed, and his declaratory statement filed, he may commute his pre-emption claim to a homestead entry.

DEPARTMENT OF THE INTERIOR,

Washington, D. C., June 20, 1871. SIR-I have considered your two letters in relation to the homestead law-one of the 20th of January last, addressed to to the Department, and transmitted through Senator Corbett; the other of 18th February last, addressed to him, and referred by him to the Department. They appear to raise three questions, which are in substance as follows:

1st. Has a party the right under the homestead law to go upon a * For general instructions under the Homestead Laws see Title I., No. 265.

tract of surveyed land embraced in a pre-existing entry under that law by another party, if not followed up by the latter with the legally required settlement and cultivation? and does the settler thereby acquire a right to the land from the date of his settlement? and should he, upon making proof of abandonment and cancelling the pre-existing entry, be on that ground allowed to enter the land as a homestead to the exclusion of any other applicant therefor, or of any grant by act of Congress for any work of internal improvement or other object, if subsequent to the date of his settlement?

As to this I am of opinion that land once entered as a homestead under the act of 1862 is not open to settlement until the entry has been cancelled upon proof of actual change of residence and abandonment for six months at any one time. When the entry has been thus cancelled the land reverts to the Government, and again becomes liable to either pre-emption or homestead entry. The act of 1862 gives to a qualified person the right to enter unappropriated public lands upon which he has filed a pre-emption claim, or any land at the time of his application subject to pre-emption at one dollar and twenty-five cents per acre, &c. This land so entered is not to be patented until five years after entry, and then upon proof of settlement and cultivation for five years immediately following the date of the oath filed upon making the entry. The settler does not lose his right to the land unless he actually changes his residence or abandons the land claimed for six months at any one time. In either of which events, upon proper proof to the register, "the land so entered shall revert to the Government." The intention of Congress, as expressed in this act, was to dispose of the unappropriated surveyed lands of the Government to such persons as would cultivate, improve, and make them their homes, and to this end it allows them to enter the land and gives them a title, incomplete, of course, but one of which they cannot be divested except in the manner pointed out in the statute. I do not think that a settlement made after homestead entry, and before the same has been cancelled, is of any value to the settler, because his settlement is upon land recognized by the Government as the land of another. Until after the expiration of the time in which the settlement and cultivation can be proved the Government will presume the homestead claimant is acting in good faith, unless the contrary is shown in the way pointed out by the statute. This view of the law seems to have been entertained by Mr. Secretary Harlan in his ruling of 22d June, 1866.

2d. Has the settler upon unsurveyed lands the right to enter the tract covered by his settlement as soon as surveyed, to the exclusion of adverse claims under the provisions of the homestead law?

I am of opinion that unsurveyed lands, as such, are not subject to homestead entry. The act of 1862 in terms limits homestead entries to surveyed lands; "and after the same shall have been surveyed" is the language of the statute. But when a pre-emption settlement has been made on unsurveyed lands, followed after survey by the filing of a declaratory statement, the settler is at liberty to commute to a homestead entry. I am aware that Mr. Secretary Harlan (copy of his letter herewith enclosed) limited such commutation to pre-emption settlements on surveyed lands; but the limitation seems to me not to be countenanced by the homestead act, which gives a qualified person the privilege of entering any unappropriated public lands upon which "he may have filed a pre-emption claim." The pre-emption laws allow him to settle

upon unsurveyed lands; and when they are surveyed, and his declaratory statement is filed, his right attaches from the date of his settle

ment.

3d. Is the claim of Mr. Bowman prejudiced by the grant of certain public lands to the Corvallis and Ocquina Military Road Company? As this is a case which may possibly come before me on appeal, I do not feel at liberty to express an opinion as to its merits upon an ex parte statement of the facts.

I am, sir, very respectfully, your obedient servant,
C. DELANO, Secretary.

B. W. WILSON, Esq., Corvallis, Oregon.

No. 275.

GREGORY v. KIRTLAND.

Parts of two quarter sections separated by a meandered stream, cannot be embraced in one homestead entry.

An application handed to the Receiver after office hours on the street, without the fee, is not a legal application.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Washington, D. C., May 8, 1871.

REGISTER AND RECEIVER, Little Rock, Ark.

N.

GENTLEMEN:-In the matter of contested homestead entry, No. 3015, dated May 16, 1870, for the fraction of the N. W. north and east of Cesche Bayou, in Sec. 12, T. 6. N. of R. 4. W., containing 51.78 acres, I find the following facts to exist: R. M. C. Kirtland claims the right to enter said tract on the ground that he was the first legal applicant. It appears from Mr. Kirtland's statement that he applied to enter the of S. W. and the E. of N. W. 4 of Sec. 12, Tp. 6, N. R. 4 W. Upon referring to the map, I find no such subdivision as the E. of N. W. of Sec. 12, Tp. 6, N. R. 4 W., exists, the said N W. 4 being subdivided into fractions or lots by reason of a meandered stream passing through it, to wit: Cesche Bayou, and so much therefore of Mr. Kirtland's application is erroneous in description. In addition to the above I find that the S. W. is separated from this portion of the N. W. now in controversy, by said meandered stream; and parts of two quarter sections separated or divided by a meandered stream cannot be embraced in one homestead entry.

It appears further that Mr. Kirtland did not file his application in your office, but handed it to the Receiver on the street after office-hours, without the required fee, and it was not therefore a formal or legal application.

Prior to the payment of the entry fee by Mr. Kirtland, Nathan Gregory applied for in due form, and entered the tract now in controversy, per homestead entry, No. 3015, and your action in allowing said entry and rejecting the application of Mr. Kirtland is sustained by this office, and the contest against homestead entry No. 3015 is hereby dismissed. You will notify the parties in interest of the action of this office, and allow the contestant 30 days in which to appeal to the Hon. Secretary of Interior, should he so desire.

Respectfully,

W. W. CURTIS, Acting Commissioner.