Page images
PDF
EPUB

sidered an improvement upon the land in contest. June 5, 1871, after the State selection, he moved his house from the eighty acres referred to and placed it upon or near the dividing line between the land in contest and the forty acres south of it. He has since fenced a portion

of the land.

It is shown that when he abandoned the eighty acres referred to, he did so in view of the promise of the contesting claimant to pay him twenty-five dollars and his expenses to the local office and return, which money was actually paid him after his said return on or about the 5th day of June, 1871. Admitting, however, the facts claimed, and I am of the opinion that the abandonment of the old claim and the initiation of the new one was invalid as against the State selection. The declaratory statement on file was notice to the world of the location and extent of the claim. And no subsequent amendment except for error or mistake can operate to defeat a right previously initiated.

I reverse your decision and award the land to the University, returning herewith the papers transmitted with your letter of April 22, 1874. Very respectfully,

W. H. SMITH, Acting Secretary.

To the Commissioner of the General Land-Office.

No. 384.

STATE OF CALIFORNIA v. HAILE ET. AL.

Where a State selected certain tracts as indemnity for a certain section 36, which section was afterwards found to be in place and not lost to the State and thereupon substituted other lieu lands in place of said section 36. Held-That such substitution was virtually a new selection and could not affect any valid pre-emption claim in the meantime accruing and attaching to the land.

Where the State of California claims lands under the 1st section, act of July 23, 1866, full compliance with the State laws regulating sales of land must be shown.

DEPARTMENT OF THE INTERIOR,

Washington, D. C., 8th April, 1872. SIR: I have considered the case of the State of California v. John W. Haile and Samuel Watson, involving the right to the N. of Sec. 8, T. 4, N. R. 2 E., San Francisco district, California.

The township plat was filed 19 March, 1863. The land was withdrawn for railroad purposes 30 January, 1865, and was restored 8 June, 1868.

Haile, on the 23d October, 1867, filed his declaratory statement, alleging settlement on the N. W., 4 October, 1867.

Watson, on the 9th June, 1868, filed his declaratory statement, alleging settlement on the N. E. 4, 20 November, 1867.

The State has twice attempted to locate the tract as indemnity schoolland,-1st. Before survey, on 6 July, 1861, in lieu of the N. of Sec. 36, T. 12, S. R. 20 E., for the benefit of James M. Duncan, and again on the 10th October, 1866, in lieu of same W. of Sec. 36 aforesaid, for whose benefit not stated.

The receipt of the County Treasurer of Solano county shows that Duncan paid his first instalment on the land 30 October, 1868.

The records of your office show that the above-mentioned section 36, in lieu of which the land in controversy is claimed, is in place and not lost to the State. She is, therefore, not entitled to this land as indemnity.

It is argued by counsel for the State, that she, in June, 1869, substituted other lieu lands in place of said section 36, confirmed to the State, thereby rendering the selection valid.

This substitution was virtually a new selection in place of the former one, which had failed and could not affect any valid pre-emption right accruing in the meantime and attaching to the land.

It is also urged that the State sold the land in 1861, to Duncan, and that the sale was confirmed by the 1st section of the act of 23d July, 1866, (14 Stat., 218.) One of the conditions of the State law, under which the lands were disposed of to the applicant, Duncan, is, that he pay 20 per cent. of the purchase money and one year's interest on the balance in advance within fifty days of the date of location. This he failed to do. Therefore this is not a case where the State had sold the land to "a purchaser in good faith under her laws," and is not confirmed by the 1st section of the act of 1866.

I think Haile and Watson are entitled to the tracts claimed respectively by them, on showing due compliance with the pre-emption law. Your decision to this effect is therefore affirmed, and the papers in the case accompanying your letters of 21 February and 6 March last, are herewith returned.

Very respectfully,

C. DELANO, Secretary.

The Commissioner of the General Land-Office.

No. 385.

AURRECOECHEA v. STATE OF CALIFORNIA ET AL. Land within the "Lewis Survey" of Las Pocitas rancho; State selection made prior to the adjustment of the confirmed grant, and hence on land absolutely reserved. The selections being absolutely null and void ab initio,

Held-That they did not operate as a withdrawal of the land (then already withdrawn). Hence, on release of reservation by final adjustment of the grant, the pre-emptors were recognized as lawful claimants as though no reservation had ever existed, as provided by act approved March 3, 1853, and said selections treated as nullities.

DEPARTMENT OF THE INTERIOR,

Washington, D. C., March 1, 1875. SIR-I have examined the case of Francisco Aurrecoechea v. The State of California, the University of California, Duncan Sinclair et al., involving title to certain lands in Township 3 S., 3 E., M. D. M., on appeal from your decision of March 7, 1874.

I affirm your decision so far as it rejects the claims of Aurrecoechea and the State, and a portion of the claim of the University, on the grounds and for the reasons therein stated. I also, upon the ground stated by you, affirm your award to the Western Pacific Railroad Company of all that portion of the S. S. W. Sec. 5, lying outside of the Lewis survey of the Las Pocitas rancho.

With reference to the claims of the several pre-emptors, (except that of Sinclair for S. 1, S. E. sec. 7,) you held that the land was reserved from settlement by the invalid selections for the State and the University, and that such reservation continued until removed by the cancellation of the selections. You accordingly refused to approve the pre emption claims, but directed that the claimants be allowed to amend their filings.

As the selections referred to were irregular and invalid, the land covered by them was not thereby removed from settlement. (Haile v. State of Cal., Secretary's Decision, April, 1872. McLain v. Stanley, Id., Feb. 5, 1875.) The claims of the pre-emptors are, therefore, entitled to consideration upon their merits.

*

*

*

*

C. DELANO, Secretary.

To the Commissioner of the General Land-Office.

*

No. 386.

STATE OF CALIFORNIA v. FLOYD, ET AL.

1. Where a claimant was present at the land office on a certain day ready to make entry, but through no fault of his was prevented from so doing until next day, if necessary to its validity his entry will be allowed to take effect from the first day.

2. Where the first State selection was illegal, the second selection on the same tract must be formally made.

3. A filing or entry is prima facie a valid claim, and the party attacking it must show affirmatively cause for its cancellation.

DEPARTMENT OF THE INTERIOR,

Washington, D. C., September 18, 1872.

SIR-I have considered the case of State of California v. William J. Floyd, et al., homestead and pre-emption claimants, involving the right to certain tracts of land in the Stockton district, Cal.

This land was within the twenty-five mile limits of the withdrawal of January 31st, 1865, for the C. P. Railroad, and was restored July 5th, 1870.

On the latter date all the homestead and pre-emption claimants made entry of, or filed their claims in the local office save T. J. Tatum, and he made his entry on the following day of July 6th, 1870. It appears that Tatum was at the office, ready and willing to make his entry on the 5th of July, but was prevented from so doing by the local officers having established a rule as to the order in which they would receive filings and entries, by which his turn was not reached until next day. He made all possible exertion to make his entry on the 5th of July, and it was through no fault or lack of diligence on his part that he failed. If it were necessary to the validity of his claim, I should be inclined to hold that his entry should be allowed to take effect from that date.

The State, May 1st, 1868, made selection of the land, and the same was erroneously allowed by the acting register, inasmuch as it was at that time included in the withdrawal for the benefit of the railroad. While the papers remained in the local office, and on the 5th of July, 1870, the State Surveyor General telegraphed to the Register, requesting him to refile the old applications. He endorsed in pencil upon the back of the original applications, "Refiled July 5th, 1870." This is the selection relied upon by the State.

By the 8th section of the act of September 4th, 1841, (5 Stats., 455,)under which the State claims the selections in satisfaction of the grant, are required to be made "in such manner as the Legislature shall direct."

The State law requires formal application to be made, and an affidavit by the party for whose benefit the selection is made, setting forth, among other things, "that there are no improvements of any kind on said land other than those of the applicant."

The telegram of July 5th, 1870, from the State Surveyor General to the U. S. Register, did not and could not meet the requirements of the act, and was not therefore a valid selection. Nor could it revive the erroneous selection of May 1st, 1868. A new and complete selection by the State was necessary to enable her to take the lands.

Counsel for the State dwell at length upon the fact that the adverse claimants made no proof of their claim on the trial. They were not required to do so. A filing or entry correct in form is prima facie evidence of a valid claim, and it is for the party attacking it to show affirmatively cause for its cancellation.

The State fails to establish her claim to the land, and the adverse claimants, including Tatum, may be allowed to complete their claims in conformity to law.

Your decision, as modified hereby, is affirmed, and the papers in the case transmitted with your letter of May 21st are herewith returned. Very respectfully,

ANO,

C. DELANO, Secretary. HON. WILLIS DRUMMOND, Commissioner General Land-Office.

No. 387.

MCNIDER v. STATE OF CALIFORNIA.

McNider filed D. S., alleging settlement July 18, 1868, and August 9th, 1868, made cash entry at minimum price and took his duplicate receipt. The State selected the tract as school indemnity lands.

After entry by McNider, he was charged with bad faith, and a hearing was ordered by the commissioner.

McNider had a prima facie case (11 Opinions, 498, 6 Wallace, 418), subject to be defeated, upon fraud being shown. (3 Op. 96.)

In such case the onus is upon the party alleging the fraud.

DEPARTMENT OF THE INTERIOR,
Washington, D. C., Nov. 17, 1871.

SIR: I have considered the papers transmitted with your letter of the 23d of August last, in the case of Matthew McNider v. the State of California, involving the right to the S. of S. W. 4, and N. W. 1 of S. W. 4, Sec. 25, T. 8, S. R. 3 W., San Francisco, Cal.

It appears that McNider, on the 24th of October, 1868, filed his declaratory statement, in which he alleged settlement on the tract in question 18th of July, 1868. On the 9th of August, 1869, he was allowed by the local officers to make cash entry, paying the minimum price for the one hundred and twenty acres, taking the usual oath, and obtaining the customary duplicate receipt and certificate of purchase. On sworn allegations of bad faith and fraud on the part of McNider, your office ordered a hearing of the case, which was accordingly had.

While the testimony certainly throws doubt on the sufficiency of McNider's final proofs, doubts which should perhaps have caused the local officers, if aware of them, to hesitate as to the issue of the final papers to him, I am of opinion that it does not so clearly establish the charges of bad faith and fraud as to require the cancellation of his entry.

Your decision is therefore affirmed and the papers are herewith returned.

I am, Sir, very respectfully, your obedient servant, C. DELANO, Secretary. HON. WILLIS DRUMMOND, Commissioner General Land-Office.

No. 388.

STATE OF CALIFORNIA v. BROWN AND DAUBENSPECK. The State claimed the land in lieu of school lands, Daubenspeck as a preemptor. The evidence showed that D. went into possession as tenant of the Mopa Wood Co. He so remaiued until after the selection by the State.

Held-That the land should be given to the State.

DEPARTMENT OF JUSTICE,

OFFICE OF ASSISTANT ATTORNEY GENERAL,
Washington, July 10, 1871.

[ocr errors]

SIR-I have considered the case of the State of California v. Thomas C. Brown and James B. Daubenspeck. Land in controversy N. E. of S. E., and S. E. of S. E. 1, of sec. 13 T. 8 N. R. 6 W. M. D. M. The town plat was filed in the district office March 16, 1869. On the same day the land was selected by the locating agent of the State of California in lieu of certain school lands.

Thomas C. Brown filed declaratory statement March 19, 1869, alleging settlement January 7, 1869. Brown was not notified and did not appear at the hearing. The contest is, therefore, between the State of California and Daubenspeck. The decision of the local officers affirmed by the Commissioner, rejected the claim of Daubenspeck on the ground. that the location by the State was made before he had initiated in good faith a pre-emption claim. Daubenspeck appeals.

Daubenspeck went upon the land in 1868 as the tenant of the Mopa Wood Company, a corporation existing under the laws of the State of California. They now claim the land in controversy under the State. Daubenspeck chopped wood for the company and lived in a house. which was then on the land until April, 1869, when he erected a small cabin within a few feet of the old house and moved into it. A quantity of the land was enclosed and partly cultivated when he went upon it, in 1868. It does not appear that he did anything upon it but cut wood for the company until April, 1869, when he erected the small house

mentioned.

He denies under oath that he was ever the tenant of the company, but W. S. Sayward, the agent of the company, swears positively to the lease, and recites it in terms.

J. W. Sayward also swears that the claimant admitted to him that he held the land as tenant of the company. Daubenspeck brought action against the company for services performed in cutting wood, in

« PreviousContinue »