DECISIONS

RELATING TO

THE PUBLIC LANDS.

RESERVED LANDS-ENTRY-SETTLEMENT.

SETTOON v. TSCHIRN.

Though the act of March 2, 1889, restoring to the public domain certain lands reserved on account of private claims, covers in its descriptive terms only a part of the Conway claim, the obvious intent of Congress was to embrace all the lands within said claim.

No rights are secured, as against the government, by an entry of land withdrawn from such appropriation; but as between two claimants for such land, after it is restored to entry, priority of settlement may be considered.

In the adjustment of conflicting settlement claims asserted for lands restored to the public domain by said act of 1889, the settler first in time must be recognized as having the superior right.

A homestead entry irregularly allowed of land reserved therefrom may remain intact on the restoration of the land, and in the absence of any adverse inter

est.

Secretary Smith to the Commissioner of the General Land Office, July 2, (J. I. H.) 1894.

(F. L. C.) The land involved in this dispute is lots 1 and 2, Sec. 7, T. 9 S., R.5, E., New Orleans, former South Eastern land district, Louisiana.

The record shows that on August 7, 1884, Charles Tschirn, the defendant, made entry of said lots under the homestead law, and on January 9, 1888, he submitted final proof, after due notice by publication, setting forth therein that he had resided upon the land in question since 1874.

Before your office had taken any action on the proof, Mary Settoon, the plaintiff, under date of February 26, 1889, instituted contest proceedings to set aside the entry, alleging in substance that the entry was illegal by reason of the land being within the alleged claim of John McDonogh and Company, or Conway grant; that said land was used for purposes of trade, and had been selected by the State as swamp and overflowed land in 1881, and that said land was unfit for cultivation and that claimant did not make the entry in good faith for a home. 1801-VOL 19-1

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At the day of trial, November 25, 1889, both parties appeared with counsel and sub nitted testimony, upon which the local officers decided in favor of the defendant, recommending the dismissal of contest and that the entry be held intact.

From this action the plaintiff appealed, when, under date of March 10, 1892, your office affirmed the judgment of the register and receiver, whereupon plaintiff again appeals, alleging the following grounds of

error:

1st. In holding that the land involved was legally open to entry under the general homestead laws on August 7, 1884, when the entry of Tschirn was allowed. 2d. In holding that said entry was not fraudulent and therefore void ab initio. 3d. In holding that the act of Congress approved March 2, 1889 (25 Stat., 877), did not for the first time subject the land involved to the operation of the homestead law and release it from the reservation created by former laws and by executive orders.

4th. In construing said act of March 2, 1889, as a legislative confirmation of the alleged "incomplete title" of Tschirn and a defeasance of the right to make entry by Settoon in virtue of her ancient settlement and improvements.

5th. In holding that though Mrs. Settoon was in a position as prior settler to have asserted an adverse claim to the land that the record did not show she did so.

6th. And in holding that lot 2 of Sec. 7, had not prior to the entry of Tschirn been actually settled and occupied for purposes of trade and business and not for agriculture.

It appears from the record that the plaintiff originally settled upon lot 2, some time in 1823; after residing there for a number of years, she abandoned the land. Subsequently, two or three parties successively occupied it for several years, and finally, some time during the late war, she purchased the improvements of the occupant, consisting of a house and garden, and returned to the land, where she has resided up to the present time.

This tract was supposed to lie within the limits of a French grant, known as the John McDonogh and Co. claim, also within the Conway grant, and therefore it was not subject to entry.

It also appears that said lots were within the limits of the grant for the New Orleans and Pacific Railroad, under the act of Congress, March 3, 1871 (16 Stat., 573), and finally the tracts were selected with others by the State of Louisiana as swamp and overflowed lands. It is unnecessary to state further than that the grant was decided not to embrace said lots; that the railroad company relinquished all claim to the same, and that under date of December 8, 1885, a contest was had between the defendant and the State of Louisiana in relation to the swamp character of the land, wherein your office rejected the claim of the State, and under date of November 2, 1887, the judgment of your office was affirmed by this Department.

This brings the case down to the present contest.

The plaintiff contends that at the date the defendant made his entry, the land was not subject thereto, and that the entry of claimant is void.

It is true that when said entry was made, the lots were still embraced in the State selection of swamp and overflowed land, and that by Commissioner's letter, dated November 1, 1882, the local officers were directed that these lots and other lands covered by said private claim should be withheld from entry, until further notice, on account of the suits pending in the United States supreme court, as to the validity of said claim, but it should be remembered that the contest against the State selection was entirely in relation to the swamp character of the land, and did not raise any other question; therefore the decision of the Department against the State selection could not, in any manner, be deemed a judgment in favor of the validity of the homestead entry. The entry simply remained "in statu quo," the character of the land only having been determined.

It is unnecessary for the purposes of this case to examine the status of the private grant to Conway. It is sufficient to say that the Department has for years recognized the reservation of this claim, as against any other disposition of the land. In November, 1881, the Houmas suits in relation to this grant were begun and while pending before the supreme court your office order of November 1, 1882, was promulgated.

If there remained any doubt of the reservation of these lands by law and also by Commissioner's order, the act of March 2, 1889 (supra), passed for the purpose of restoring the same to the public domain, must have settled the question. Congress, no doubt, when this act was passed, was in possession of all the facts in relation to this grant, and there is no question that the lands were considered in a state of reservation or there would have been no necessity for the passage of the act restoring them to entry.

From a careful examination of said act of March 2, 1889 (25 Stat., 877), I find that it only refers to lands by description in townships 8 and 9, in ranges 1, 2, 3 and 4, all lying west of range 5, within which the tracts in question are located.

Why the description given in the statute only covered a part of the Conway grant and stopped at range 4, does not appear. It can not be denied, however, that the third proviso in said act may include the land in controversy, to wit:

That the provisions of this act shall be and are hereby extended to embrace all settlers upon public lands, and for the disposition of all public lands embraced in the grant to Daniel Clark, so far as decreed invalid by the supreme court of the United States and the unconfirmed Conway claim.

The land in dispute is unquestionably within the limits of the Conway claim, and notwithstanding the fact that the descriptive part of the statute stopped at the east line of range 4, and did not include lands in range 5, yet I am unable to see any reason why Congress should intend one rule or construction for lands west of said line and another for lands east of it, in the Conway claim; therefore, I am satis

fied that the intent of Congress in said act was to embrace all the lands within said claim.

At the date Tschirn made entry of the land, it was covered by the Conway claim, and also by the State selection, as swamp and overflowed land; furthermore, your office order directing that these lands should be reserved from entry-evidently a precautionary measurewas still in force, in fact it has never been revoked, and therefore there can be no doubt that Tschirn's entry was erroneously allowed, and should not, by reason of such error, prejudice the rights of other settlers..

No rights are secured as against the government by settlement on land withdrawn from entry, but, as between two claimants for such land priority of settlement may be considered. Pool v. Moloughney (11 L. D., 197); Etnier v. Zook (ib., 452); hence, in the case under consideration, the defendant should acquire no right by virtue of his entry, but priority of settlement of the claimants may be considered.

In the act of March 2, 1889 (supra), it is expressly provided that it relates to

Lands claimed by actual settlers for purposes of cultivation whose titles are incomplete within the limits of the Donaldson and Scott, Daniel Clark and Conway grant, and that after setting apart to each of said settlers, not to exceed one hundred and sixty acres, the residue of the public lands within said grant, shall continue to be as they are now, a part of the public domain.

The act of 1889, supra, provided for the restoration to the public domain of certain lands, in Louisiana, including the tract in question, and for the protection of bona fide settlers on any of said lands by giving them a preference right of entry.

In the case at bar, Mrs. Settoon and Tschirn both claim to be settlers upon the land, and, therefore, under the rule laid down in the abovecited cases, the question is one of priority of settlement.

It appears from the evidence, that Mrs. Settoon was born in the French settlement in Louisiana; that she is a poor widow, about eighty-seven years old, and understands the English language very indifferently; that her home and improvements, worth about $300, are on lot 2; that she has no other home; that soon after the passage of the act of March 2, 1889, she applied to make entry of said lot 2, and her application was rejected on account of the prior entry of the defendant.

Thus, it appears, that Mrs. Settoon exercised due diligence in trying to secure her home and improvements, and there is no question that her long residence upon the land fully establishes her prior claim to said lot; therefore, the entry of Tschirn, to the extent of lot 2, must necessarily give way to her superior right.

Although the homestead entry, in view of the then existing reservation, should not have been allowed, yet, as the reservation has now been removed and no adverse interest appears, I see no just reason. why the entry, as to lot 1, may not be allowed to stand.