An officer of the United States is not deprived, by any statute, of the benefit of the pre-emption laws. United States v. Fitzgerald, 15 Pet., 407. No reservation or appropriation of a tract of land can be made, after a citizen has acquired a right to it, under a pre-emption law. Ibid.

If a tract of land have been severed from the public domain, by a legal appropriation of it, for any public purpose, it is no longer subject to the pre-emption law. Ibid. S. P. Kissell v. St. Louis Public Schools, 18 H., 19. Barnard v. Ashley, Ibid, 43. s. c. Hemp., 665. Hale v. Gaines, 22 H., 144.

The decision of the register and receiver, as to the validity and extent of a pre-emption right, can only be impeached for fraud. Lytle v. Arkansas, 9 H., 314.

The right of a pre-emptioner is limited to the fractional quarter section on which his improvements are made. Ibid.

The right of a pre-emptioner can not be impaired by a selection of lands under a subsequent grant by Congress. Ibid. S. P. Clements v. Warner, 24 H. 394. O'Brien v. Perry, 1 Bl., 132.

The title of a pre-emptioner is superior to one by patent, issued on a location under a floating right. Cunningham v. Ashley, 14 H., 377. Where two persons are settled upon the same quarter section, the act of 1830 sanctions a division of it between them.

Ibid.

A patent, which by reason of a void survey and division, appropriates to one pre-emption claim, what belongs to another, is void, as against the owner of the latter claim. Brown v. Clement, 3 H., 650. ruled in Gazzam v. Phillips, 20 H., 372.

Over

The right of a pre-emptioner will prevail over a selection under a donation law, returned on the same day on which the pre-emption law was passed. Barnard v. Ashley, 18 H., 43. s. c. Hemp., 665.

The equity of a pre-emption claimant, who has obtained his certificate, paid the purchase money, and entered into possession, can not be defeated by a subsequent entry, on which a patent has issued. Hughes, v. United States, 4 Wall., 232.

The Commissioner cannot set aside a sale to a pre-emptor, because by a subsequent survey, his house is found not to be within the tract sold; the government is bound by the original survey. Lindsey v. Hawes, 2 Bl., 554.

If the house of a pre-emptor be built on the dividing line of two quarter sections, his residence avails as the foundation of a pre-emption right to either. Ibid.

A settler, entitled to pre-emption, has an assignable interest. Thredgell v. Pintard, 12 H., 24.

If his assignee re-assign, subject to the payment of a certain sum to the original pre-emptioner, the latter has a lien on the land therefor, which he may enforce in equity, notwithstanding the second assignee may have taken out a patent in his own name, under a subsequent pre-emption law. Ibid.

The quantity of land granted to a patentee, under the pre-emption law of 1830, is to be ascertained from the description in the patent. Gazzam v. Phillips, 20 H., 372.

Under the act of 1834, the assignment of a pre-emption right before the issuing of the patent was valid. Marks v. Dickson, 20 H., 501. But an assignment before an entry at the land-office was void. Ibid. A power, however, though executed before the location, was sufficient to justify an assignment made after the location. Ibid.

Where one presented a claim under the act of February 5th, 1829, to certain lots in Galena, as the legal representative of a settler, for which he obtained a certificate, and paid the purchase money, a patent issued thereon to the legal representatives of the original settler, enures to his sole benefit. Morehouse v. Phelps, 21 H., 294.

The person who commences an improvement has a right to continue, and any one who intervenes may be considered a trespasser. United States v. Stanley, 6 McL., 409.

But if the first occupant give way to a second, to whom the right of pre-emption is granted, it is good against all the world, except the first occupant.

Ibid.

And if the first occupant abandon his right that of the second cannot be questioned. Ibid.

A settlement under the Oregon donation act gives the same rights as are conferred by the pre-emption laws: the settler has an estate, which cannot be defeated for want of a patent. Johnson v. United States, 2 N. & H., 391.

After a recognition of the claimant as a lawful settler, by the surveyor-general, and payment of the consideration for a grant, his settlement cannot be treated as an intrusion. Ibid.

Where the owner of land in Louisiana fronting on the Mississippi, obtained a certificate for back land, which he was not entitled to either by the act of any public surveyor, or by his equitable right to a protraction of his side lines, Held-That his title was invalid, as against an adjoining proprietor, who had a right to enter and purchase the land, under the act of June 15, 1832, and did so enter and purchase. Jourdan v. Barrett, 4 H., 169.

Under the former government of Louisiana, the regulations of O'Reilly, &c., recognized the equitable claim of the owners of lands fronting on rivers, to a portion of the back lands; and after the cession, the United States did so, also. Ibid.

The proviso to the act of June 15, 1832, requiring pre-emption claimants of back lands in Louisiana, to give notice of their claims, before proclamation of sale, was prospective merely, and did not apply to a case in which proclamation had been made before its passage. Surgett v. Laprice, 8 H., 48.

The proviso to the 5th section of the act of March 3, 1811, excluding from the right of pre-emption, back lands “fit for cultivation, bordering on another river, creek, bayou, or water-course," refers only to lands bordering on some navigable water, and which are also fit for cultivation. Ibid.

The decision of the principal deputy-surveyor, under the superintendence of the surveyor-general, was conclusive of the rights of proprietors of contiguous lands, on a stream in Louisiana, as to the division of adjoining back lands, to which they had a pre-emption claim, under the act of March 3d, 1811. Haydel v. Dufresne, 17 H., 23.

The right of pre-emption given to claimants under a Spanish or French grant, by the act of 1832, did not depend on actual residence and house-keeping. O'Brien v. Perry, 1 Bl., 132.

The acts of 4 September, 1841, 29 May, 1830, and 23 January, 1832, relate to pre-emption rights conferred upon actual settlers; they do not. apply to a case where no entry has been made under either of them. Irvine v. Irvine, 9 Wall., 617.

A party claiming title by pre-emption must prove actual residence

upon the land, and improvements made thereon by him. Brisbois v. Sibley, 1 n. Minn., 230

Occupation and improvement on the public lands, with a view to preemption, do not confer a vested right, as against the government; such vested right is obtained only when the purchase-money has been paid, and the receipt of the proper land officer given to the purchaser; until then Congress may withdraw the land from entry, though the settlers' right may be thus defeated. Frisbie v. Whitney, 9 Wall., 187. Hutchings v. Low, 15 Ibid, 77.

But such occupation and improvement do confer an inchoate right, as against other citizens, which the land officers are bound to respect, and which will be protected by the courts. Ibid.

A person occupying public lands, whether surveyed or unsurveyed, under the pre-emption laws, acquires a right to the possession from the moment of settlement, and the courts will protect such rights of possession, subject to the jurisdiction of the register and receiver to settle questions of conflicting boundary, or priority of settlement. Colwell v. Smith, Wash. T. Rep., 109.

Under the act of 4 September, 1841, (2 Bright. Dig., 473,) a conveyance by a pre-emptioner, before patent issued, is void, and can operate neither by way of grant nor estoppel. Kellom v. Easley, 2 Ab., C. C. 559. s. c. 1, Dill., 281.

The act of 14 August, 1848, organizing the Territory of Oregon, did not extend to it any part of the pre-emption laws Stark v. Starr, 6 Wall., 402. s. c. 1 Saw., 15. s. p. Martino. v. T" Vault, 1 Oregon, 77. Lownsdale v. City of Portland, Ibid, 381. s. c. 1 Deady 1. man v. School District, Ibid, 108.

Chap

The fund arising from the sale of lands, pre-empted for seats of justice, under the act of 26th May, 1824, (1 Bright. Dig., 469,) is a trustfund to be specially applied to the purposes contemplated in the grant; it is not subject to the ordinary drafts upon the county treasury. Davis v. Muscatine County, Morris. (Iowa) 161.

Settlers under the pre-emption and homestead laws, have an inchoate right which they should be permitted to perfect into a legal title. Litchfield v. The Register, 1 Wool., 299.

A pre-emption entry, not affected by a radical infirmity, will be upheld against a subsequent purchaser. Root v. Shields, 1 Wool., 340. Lands included within the limits of an incorporated town are not subject to entry under the pre-emption law of 1841. Ibid.

The extent of lands which may be included in a city, is not limited by the act 23d May, 1844, (5 Stat., 657.) Ibid.

The provision of the 4th section of the act 3d March, 1843, prohibiting the making of two declaratory statements by the same pre-emptor, is confined to lands subject to private entry. Johnson v. Towsley, 13 Wall., 72.

A declaratory statement, under that act is valid, if made at any time before another person commences a settlement, or files a declaration. Ibid.

If a party be deprived of his right of pre-emption, by an erroneous construction of the statute by the land department, he may have relief in equity. Samson v. Smiley, 13 Wall., 91.

The act of 4th September, 1841, only prohibits the assignment of a pre-emption right; a pre-emptor who has entered the land, and is the owner in good faith may sell before patent. Myers v. Croft, 13. Wall., 291.

No. 394.

TITLE IV-RAILROAD GRANTS.

I. IN GENERAL.

CIRCULAR.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Washington, D. C., June 24, 1875.

REGISTERS AND RECEIVERS UNITED STATES LAND OFFICES.

GENTLEMEN:-The following pages, comprising circular instructions relating to the adjustment of railroad grants, embrace the various regulations now in force under the rules and practice of the Department respecting the subject; together with forms for selection, verification of lists and proper certification, and tables showing the dates of the respective granting acts, with a reference by volume and page to the statutes containing the same; also the dates at which title vested in the respective grantees, so far as obtained from the best information known to the Department.

These instructions are now communicated for the guidance of District Officers, Surveyors-General, Executives and Agents of States, Officers of Railroad Corporations, and others having an interest in the matters recited.

You will be governed in your official action by the regulations therein prescribed.

Very respectfully,

S. S. BURDETT, Commissioner.

DEPARTMENT OF THE INTERIOR,* Washington, D. C., 11 September, 1873. SIR: I have received your letter of the 9th instant, suggesting a change in the 7th section of the circular issued by your Office on the 24th January, 1867, in regard to selections of lands in satisfaction of railroad and other congressional grants. The then Secretary, Mr. Browning, held that the 21st section of the act approved 2d July, 1864, (13 Stat., 365,) applied only to the lands granted by that act, and the circular conformed to his ruling.

The Supreme Court of the United States, at its December term, 1872, decided, in the cases of the Kansas Pacific Railway Company v. John H. Prescott, and the same Company v. Charles C. Culp, that said act applied also to the lands granted by the original act of July 1st, 1862.

*Reprint of circular for Oct. 15, 1873, in modification of circular of Jan. 24, 1867.

I fully concur in your opinion that the circular should be made to conform to this decision, and you are authorized to make the required change.

The papers are herewith returned.

I am, sir, very respectfully, your obedient servant, B. R. COWEN, Acting Secretary. HON. WILLIS DRUMMOND, Commissioner General Land Office.

GRANTS FROM CONGRESS TO STATES AND CORPORATIONS.

By the first section of the act of Congress approved July 1, 1864, (Statutes 1863-64, page 335, chap. 196), it is provided that from and after the passage of that act, "in the location of lands by States and corporations, under grants from Congress for railroads and other purposes (except for agricultural colleges), the Registers and Receivers of the Land-Offices for the several States and Territories, in the districts where such lands may be located, for their services therein, shall be entitled to receive a fee of one dollar for each final location of one hundred and sixty acres, to be paid by the State or corporation making such location; the same to be accounted for in the same manner as fees and commissions on warrants and pre-emption locations, with limitations as to maximums of salary prescribed by existing laws, in accordance with such instructions as shall be given by the Commissioner of the General Land-Office." (Revised Statutes, section 2238, seventh clause; Ibid., sections 2240 and 2241.)

1st. Under this law the Registers and Receivers are each entitled to receive a fee of one dollar for each final location of one hundred and sixty acres, or any quantity approximate thereto, when the deficit is less than forty acres.

2d. When the several quantities shall have been definitely ascertained by you to inure to the grant, as hereinafter prescribed, the fees will then be due thereon.

3d. The State through its grantee, or the grantee, as the case may be, is required to file with the Register and Receiver of the proper LandOffice descriptive lists of the tracts of land claimed as inuring under the grant within sections of miles each along the line of route, on both side's thereof, to be dated and verified by the signature of the selecting agent.

For agent's certificate, to be attached to each list, see Form A.

The party appearing as the agent of the grantee must file with the Register and Receiver written and satisfactory evidence, under seal, showing his authority to act in the premises.

In the preparation of the descriptive lists, the Register and Receiver will afford the agent all reasonable facilities, taking care, however, not to interrupt the current public business.

The lists must be carefully and critically examined by the Register and Receiver, and their accuracy tested by the plats and records of their office. When so examined and tested, and found correct in all respects, they will become final locations, and you will, on the payment of the requisite fees to the Receiver, so certify at the foot of each list, according to Form B.