never intended to reside upon the same, or to comply with the provisions of the homestead law. It is well known that in very many instances parties, in perfect good faith, and with full intention of complying with the law, make a homestead entry, but for various reasons are prevented from subsequently residing upon the tract thus entered. In such a case I do not think the logical inference to be drawn from Judge Dillon's charge is that the entry is illegal, or that no claim attaches thereunder, but rather the contrary. It is contended in the argument that when an abandonment is proven to the satisfaction of the register of the proper land district, the tract then becomes subject to other disposal, and that the rule stated in the decision, that the land is reserved from other appropriation until the cancellation of the entry by your office, is erroneous. If this be so, action on your part in canceling the entry is a mere clerical act, of no legal significance, and your office is but the agent to carry into operation the finding of the register, whose decision is final, and from which no appeal can be taken to your office or the Department proper. I do not think this view can be successfully maintained. The act of July 4, 1830, reorganizing the General Land Office, gives to the Commissioner thereof supervisory power in all matters pertaining to the ordinary disposal of public lands. This of necessity includes the supervision of all subordinates, including the local officers. The homestead law of May 20, 1862, requires that the Commissioner prepare and issue such rules and regulations, consistent with the act, as are necessary and proper to carry its provisions into effect. The regulations in regard to the method of declaring a homestead claim abandoned and the entry canceled are necessary and proper to an efficient execution of the statute. There is nothing in the act inconsistent with this view. The statute must be interpreted as a whole, and in accordance with the principles pertaining to our land system. This interpretation is consistent with the spirit of the laws for the disposal of the public lands, and for the uniform administration of the same for a long series of years. The finding of the local officers may be approved or reversed, as may be deemed proper by the officer having the supervisory control of the execution of the law. A different interpretation would, in effect, deprive the supervisory officers of the power to perform the duties expressly imposed upon them by the laws of the land, and cannot be defended upon any hypothesis consistent with the theory of government or the execution of the laws. The act of February 25, 1869, relative to the Vigil and St. Vrain grant, cited by counsel in support of their position, was a special act creating the register and receiver a tribunal for the purpose of performing certain specific duties. It was not a general statute, analogous to the pre-emption and homestead laws, and the opinion of the Attorney-General, relative to the power of the Commissioner under said act, holding that you had no authority to review the decision of said tribunal for that reason, is not applicable to the case under consideration. It is stated by counsel that many hearings have been held, and, as the cases are yet unadjudicated, to apply the rule announced by my predecessor in such cases would be unjust. This objection is without force, in my opinion. A hearing may be ordered to determine the fact of the invalidity of a prior entry should a party in interest show sufficient reason why such hearing should be had. Cases adjudicated under a different view of the homestead law are not to be reopened. The rule announced is for future guidance only. I am of the opinion that the views expressed by my predecessor are founded upon a correct interpretation of the homestead law, and I see no good reason why the same should be modified or changed, and must therefore decline the request contained in the application. The application and accompanying papers are herewith transmitted. Very respectfully, C. SCHURZ, The COMMISSIONER OF THE GENERAL LAND OFFICE. Secretary. Where a warrant, located in payment of land, is canceled for forgery in the assignment, and substitution of cash or another warrant is authorized, and not limited in time, the land covered by such location is excepted from the operation of a railroad grant attaching after such cancellation, though the substitution is not made for years. DEPARTMENT OF THE INTERIOR, OFFICE OF THE SECRETARY, Washington, D. C., March 14, 1877. SIR: I have considered the case of Theron C. Pond vs. Southern Minnesota Railroad Company, involving the south half of northwest quarter, and northeast quarter of southwest quarter, section 33, township 103, range 24, Worthington, Minn., on appeal from your decision of July 14, 1876, refusing to list the above land to said railroad company. The lands in question are within the limits of the grant to the Southern Minnesota Railroad Company, which took effect November 29, 1866. Pond entered this land with military bounty land warrant No. 70723, June 6, 1863. It appears that this land warrant was issued to Phoebe Gill, widow of Stephen Gill, on April 9, 1956, and was stolen from her, and her signature forged to the assignment. Said warrant was canceled for that reason by Pension Bureau, March 12, 1866. On March 20, 1866, your office allowed Mr. Pond the privilege of substituting a legal consideration in lieu of said warrant, but it does not appear that this has ever been done. You refused to certify the land to the railroad company because, at the date the right of the company attached, the land was covered by a claim capable of being perfected. The records of your office show that, although the warrant has been canceled, the entry still remains uncanceled. I am of opinion that Pond had a valid right to perfect his claim at the time the grant to the railroad company took effect, and that the land was thereby excepted from the grant. Your decision is affirmed, and the papers transmitted with your letter of November 13, 1876, are herewith returned. Very respectfully, The COMMISSIONER OF THE GENERAL LAND OFFICE. C. SCHURZ, Secretary. DEPARTMENT OF THE INTERIOR, SIR: I have considered the application of John K. Brown, land commissioner of the Southern Minnesota Railroad Company, for a reconsideration of my decision in the case of Theron C. Pond vs. Southern Minnesota Railroad Company, rendered March 14, 1877. The tract involved in this case is the south half of northwest quarter, and northeast quarter of south west quarter, section 33, township 103, range 24, and is situated within the Worthington, Minn., land district, and within the limits of the grant to the above mentioned railroad company, which took effect November 29, 1866. This application is based on the following grounds, to wit: First. That Pond had not resided upon or improved said land prior to entry. Second. That said warrant location was canceled before the right of the road attached, of which fact Pond had notice, and as he has not perfected his entry or lived on the land since, this default is conclusive evidence of abandonment. Third. That the land was ipse jure vacant at the time the right of the road attached. With reference to the first ground relied upon by the road, I find from an examination of the records of your office, that Pond entered the land in contest, with military bounty land warrant No. 70723, June 6, 1863; that said warrant had been stolen from Phoebe Gill, widow of Stephen Gill, to whom it was issued, and her signature forged to the assignment, and it was therefore canceled by the Pension Bureau March 12, 1866, and a new one issued in lieu thereof. The land in contest was offered October 29, 1860, and being thus made subject to sale at private entry, the law did not require that Pond should reside upon or cultivate it prior to making his warrant location. As to the second ground, I think it only necessary to say that as your office on March 20, 1866, allowed Mr. Pond the privilege of substituting a legal consideration in lieu of the canceled warrant, and as this privilege was not limited in time, the entry, although voidable, was capable of being legally perfected at the time the grant to the road took effect, and the land did not inure to the grant; nor was Pond required by law to live on the land after entry. As to the third ground, I am of opinion that as the land was covered by a voidable uncanceled entry it was not legally vacant, and the application for a rehearing is refused. This entry should be canceled unless perfected by Mr. Pond, without unreasonable delay after notice. The papers transmitted with your letter of April 5, 1877, are herewith returned. Very respectfully, The COMMISSIONER OF THE GENERAL LAND OFFICE. C. SCHURZ, Secretary. The burden of proving a fact lies upon the party asserting the affirmative, following the decision of the Department in the case of McComber vs. California and Oregon Railroad Company. DEPARTMENT OF THE INTERIOR, OFFICE OF THE SECRETARY, SIR: I have considered the case of R. Vincent vs. The Saint Joseph and Denver City Railroad Company, involving the southwest quarter of section 7, township 2 south, range 2 east, Concordia, Kans., on appeal from your decision of September 28th, 1876, adverse to the railroad company. The records of your office show that the land in contest is within the limits of the grant of July 23, 1866, to aid in the construction of the above mentioned road, the right of which attached March 21, 1870. A. Robbins filed declaratory statement No. 5122, March 19, 1870, for said tract, alleging settlement March 12, 1870. Anthony Brockman filed declaratory statement No. 5372 for the west half of the southwest quarter of section 7, township 2 south, range 2 east, April 8, alleging settlement April 1, 1870. John Schauk made homestead entry No. 5154 for said southwest quarter, section 7, October 21, 1871. You held that Robbins had a valid subsisting claim to the tract in contest at the time the right of the road attached, which operated to except it from the grant, and rendered it liable to entry by the first qualified applicant therefor. I do not think the testimony sustained your view of the case. "The obligation of proving any fact lies upon the party who substantially asserts the affirmative of the issue." (1st Greenleaf on Evidence, page 98.) The burden of proving that the land in question was covered by a valid pre-emption claim was therefore upon Vincent, and it was necessary for him to prove that Robbins had not only initiated a prior valid settlement, but that he also possessed all of the personal qualifications required by the pre-emption laws. Belden, Campbell, and Brockman, witnesses for plaintiff, testify that Robbins settled upon said tract about the 1st of March, 1870, and built a small house and cultivated about two acres of the land; that he remained thereon until July, 1870, when he abandoned the same and has not lived thereon since that time. The testimony fails to show that Robbins was a qualified pre-emptor, and I am of opinion that, under the rule of law before mentioned, the plaintiff has not made out his case. (Walker's Heirs rs. State of California, Copp's Land Laws, p. 287; McComber vs. California and Oregon Railroad Company, Copp's Land Owner for February, 1876, p. 163.) Although this case must fail for want of proper testimony, it cannot be assumed that Robbins was not in fact a qualified pre-emptor, as his filing of record was prima facie evidence of a valid right as against the railroad company. The land should not therefore be certified to said company, unless proper evidence is furnished by it that at the time the right of the road attached, Robbins had abandoned his claim, or that the same was invalid. (Circulars of instructions of August 15, 1872, and September 8, 1873, Copp's Land Laws, 389, 391.) I return herewith the papers transmitted with your letter of January 9, 1877, with instructions to cancel the homestead entry of Schauk, and the filings of Robbins and Brockman on the records of your office. Very respectfully, The COMMISSIONER OF THE GENERAL LAND OFFICE. C. SCHURZ, Secretary. The second section of the act of April 21, 1876, requires three specific things: 1st. There must have been a valid claim to the land at the date of withdrawal for railroad purposes; 2d. The land must have been re-entered under decisions and rulings of the Land Department; and 3d. The claimant must show that he has complied with all the requirements of the homestead or pre-emption laws. DEPARTMENT OF THE INTERIOR, OFFICE OF THE SECRETARY, SIR: I have considered the case of J. W. Jenney vs. The Kansas Pacific Railroad Company, involving the right to the southwest quarter, section 27, township 13 south, ange 3 west, Salina, Kans., on appeal from your decision of October 31, 1876, adverse to the railroad company. This tract is within the ten mile limits of the grant to the above named road, the right of which attached March 3, 1869. Said land was withdrawn by letter from your office, dated July 14, 1866, received at the Junction City land office, July 20, 1866. J. N. Burgess filed declaratory statement No. 3871 for said tract May 18, alleging settlement May 10, 1866. Edward F. Willard filed declaratory statement No. 4156 for same tract August 7, 1866, alleging settlement July 20, 1866. J. W. Jenney made homestead entry No. 11861 for said tract October 30, 1871, under instructions from your office dated September 14, 1871. The filings of Burgess and Willard were canceled for conflict with the grant October 23, 1871. On application of the company, a hearing was held on August 15, 1873, and Jenney's entry was canceled for conflict with the grant April 21, 1875. It also appears that this tract was patented to said railroad company December 1, 1875. On August 10, 1876, counsel for Jenney made application for the reinstatement of said homestead entry, and on October 31, 1876, you took up this case and decided that the defects in said entry were cured by the 2d section of the act of April 21, 1876, and reinstated the same, subject to the right of appeal. The 2d section of the act of April 21, 1876, requires three specific things to concur, in order to give validity to the entry of a claimant thereunder, to wit: 1st. There must have been a valid pre-emption or homestead claim existing on the land at the time of the withdrawal for the railroad. 2d. The land must have been re-entered under decisions or rulings of the Land Department. 3d. The claimant must show that he has complied with the requirements of the preemption or homestead laws since the date of his filing or entry. The application in this case contains a very full recital of the facts connected therewith, but contains no allegation that the claimant has complied with the homestead law since the date of entry; nor is it accompanied by any proof of such compliance. I am cognizant of the fact, that owing to the diversity in character of the claims arising under this act, it is difficult to establish inflexible rules for their government, yet it is obvious that the claimant should first clearly show that he is entitled to its benefits. It cannot be presumed that the claimant has complied with the law in the absence of proof of that fact, and to take up and reinstate an entry in the absence of satisfactory evidence that the claimant is entitled to the benefit of the act, is to indulge a presumption not warranted by the law. On the trial between Jenney and the company before the local officers, August 15, 1873, the question at issue was whether Burgess or Willard had a valid and subsisting claim to the land at the time the right of the road attached, March 3, 1869, while the issue in this case is whether either of the said parties had a valid claim at the date of withdrawal on July 26, 1866. These issues are separate and distinct, and I do not think that testimony directed to the investigation of the question whether there was a subsisting claim in 1869 should be held to conclude the parties in an inquiry relating to the time of the withdrawal in 1866. The claimant should be required in every case to submit a duly corroborated application setting out the character of his claim, and if on examination you are of opinion that he is entitled to the land prima facie, a hearing should be ordered to determine the rights of the parties, and upon the testimony there presented, the case should be decided upon its merits. In the present condition of this case I am unable to determine whether Mr. Jenney's entry is confirmed by the act or not, and I therefore dismiss these proceedings pro forma, without prejudice to the rights of either party. The papers transmitted with your letter of January 26, 1877, are herewith returned. Very respectfully, The COMMISSIONER OF THE GENERAL LAND OFFICE. C. SCHURZ, The 21st section of the act of Congress approved July 17, 1862 (12 Stat. 595) applies to those aliens only who have enlisted or shall enlist in the armies of the United States, and does not include those who have enlisted or shall enlist in the Navy. DEPARTMENT OF THE INTERIOR. Washington September 14, 1877. SIR: I have considered the case of the Western Pacific Railroad Company vs. John McDevitt, involving the south half of southeast quarter, section 29, township 2 north, range 3 east, San Francisco, Cal., on appeal from your decision of December 28, 1876, approving the pre-emption cash entry of McDevitt for patenting. The facts of the case are substantially as follows, viz: The township plat was filed in the local land office July 25, 1863. This tract is within the limits of the grant to the Western Pacific Railroad Company, and was withdrawn for railroad purposes January 30, 1865. Said land, together with the southwest quarter of southwest quarter section 28, was selected by the State of California May 27, 1868, in lieu of the northeast quarter of northwest quarter and north half of southwest quarter, section 36, township 4 north, range 23 west, S. B. M. R. and R. No. 497. The State substantially abandoned the southwest quarter of southwest quarter, section 28, and said selection was canceled as to that tract. McDevitt filed declaratory statement 6824 for said land August 31, 1870, alleging settlement April 1, 1863. On November 22, 1872, your predecessor rejected the claim of the State and the railroad company and awarded the land to McDevitt, and this decision became final in default of appeal. Pursuant to this decision Mr. McDevitt proved up and entered said tract April 15, 1873, per cash entry No. 4180. From an examination of the papers in the case it appears that Mr. McDevitt was born in Ireland, and that he has never been naturalized or declared his intention to become a citizen of the United States. It also appears that he served three (3) years in the United States Navy during the war with Mexico, and he claims citizenship by virtue of such service. On December 28, 1876, you decided that, under the 21st section of the act of Congress approved July 7, 1862, (12 Stat., 595,) and rulings in similar cases, (not cited,) Mr. McDevitt is a qualified pre-emptor so far as the question of citizenship is concerned. I cannot agree with your conclusion. The act of Congress cited by you in support of your decision applies to those aliens only who have or shall enlist in the regular or volunteer armies of the United States, and does not include those who have or may enlist in the regular or volunteer navy. There does not appear to be any good reason why the act should not have included sailors as well as soldiers; but as it did not, it is the duty of this Department to execute the law as it stands on the statute books, without reference to what might have been justly added to it by the law makers. By the act of September 4, 1841, (5 Statutes, 455, section 2259, Revised Statutes,) the pre-emption privilege is granted to "every person being the head of a family, or widow, or single person over the age of twenty-one years and a citizen of the United States, or having filed a declaration of intention to become such, as required by the naturalization laws," &c. Mr. McDevitt was not a citizen of the United States, and had not declared his intention to become such at the time he settled on the land in dispute, or at the time of making his entry, and he had no more right to make said entry than any other subject of England. Mr. McDevitt could have declared his intention to become a citizen at any time within the past twenty-five years; the courts were open to him, and it is through no fault of the Government or the law that he has not availed himself of his lawful privileges and brought himself within the statute, and his entry should be canceled on the records of your office. Your decision is reversed for the reasons stated, and the papers transmitted with your letter of May 19, 1877, are herewith returned. Very respectfully, The COMMISSIONER OF THE GENERAL LAND OFFICE. G.-PRE-EMPTION DIVISION. C. SCHURZ, This division has charge of entries of the public land under the preemption and town-site laws; also, sales of Osage Indian trust and diminished reserve lands, and claims of parties who purchased from Mexican grantees or assigns, lands within grants subsequently rejected, or which were excluded from final survey of confirmed grants. Conflicting claims between claimants of the above-named character and others are here adjusted. |