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7. Assignees should distinctly understand that the face value of these certificates is not arbitrary; for instance, if the certificate calls for two hundred dollars, and that amount has been expeuded in the actual cost of survey and office work, and the assignee presents the same in payment for land amounting in value to less than that amount, it must be surrendered in full satisfaction for the same.
8. In cases where the estimated cost of survey and office work is in excess of two hundred dollars, the settler should be instructed to deposit in two or more sums in order that no certiticate may bear a face valne of more than two hundred dollars.
9. The surveyor general in all cases will be careful to express upon the register's township plat the amount deposited by each individual, the cost of the survey in the field and oftice work, and the amount to be refunded in each case.
10. Before transmitting accounts for refunding the excess of deposits over and above the cost of survey in the field and office work the surveyor general will indorse on the back of the triplicate certificate of deposit in the possession of the depositor the followrefunded to
by account transmitted to the General Land Office with letter dated
," and will state in the account that he has made such indorsement. Where the whole amount deposited is to be refunded the surveyor general will require the depositor to surrender the triplicate certificate of deposit and transmit it to this office with the account.
No provision of law exists for refunding to other than the depositor.
11. In their monthly cash abstracts the register and receiver will designate the entries in which certificates of deposit are used, and the balances paid in cash, if any, noting on the certificates of purchase and receipts the manner of payment. The receiver in his monthly account current will debit the United States with the amount of such certificates, and in his quarterly accounts specify each entry made with these certificates, giving number, date, amount for which received, by whom and with whom the deposit was made, and debit the United States with the same, which must accompany his accounts as vouchers. Very respectfully,
J. A. WILLIAMSON,
The Division E, of this office, having charge of surveys and drafting, reports the work done for fiscal year ending June 30, 1879, as follows, viz:
Number of letters received
2, 858 Number of letters written..
2, 371 Number of folio pages of record occupied
2,005 Number of reports on adjusted accounts.
1, 274 Number of folio pages of record occupied
1, 274 Amounts of adjusted and reported accounts
$513,782 20 1. Twenty-six special maps of States and Territories made, viz: Ohio, Indiana, Illinois, Missouri, Arkansas, Iowa, Minnesota, Nebraska, Kansas, Louisiana, Mississippi, Alabama, Florida, Oregon, California, Nevada, Colorado, Indian Territory, Washington, Idaho, Montana, Wyoming, Dakota, Utah, Arizona, and New Mexico.
2. Volumes of field notes arranged according to States and Territories, particular bases, principal meridians, townships and ranges, indexed for easy reference-53.
3. Railroad maps constructed, with lateral limits indicated thereon of land granted to different railroad companies, copies of same for land offices, also tracings of railroad maps—101.
4. Exemplifications of plats, copies of town sites, tracings of private land patents, and copies of same in record books, also other records prepared for applicants under act of Congress approved July 2, 1864 (sec. 461, Revised Statutes)-1,704.
In addition to the above, protractions of surveys have been made, areas calculated, and diagrams made of same, surveys of islands and lakes have been tested, and diagrams of same made, also 3,144 tracings of old wornout plats have been examined.
Unfinished work: 1. Arranging and indexing field notes and plats; 2. 28 field note diagrams forming the index volume; 3. 14 railroad volumes; 4. The tracing of the annual map of the United States, two-thirds of which has been completed.
DISPOSALS OF PUBLIC LANDS.
During the fiscal year ending June 30, 1879, the disposals of public lands amounted as above stated, to 9,333,383.29 acres. In this aggregate is included the sum of 622,513.96 acres of cash sales, this sum covering 165,996.53 acres of desert lands entered under the act of March 3, 1877, in addition to the area embraced in ordinary private sales for cash, under section 2354 of the Revised Statutes of the United States; in pre-emption entries paid for in money, under section 2259 Revised Statutes; in commutations of homestead entries to cash, under section 2301 Revised Statutes; and in various other classes of disposals for money under special laws, as of lands in certain abandoned military and Indian reservations. These figures show a falling off of 254,981.18 acres as compared with the previous fiscal year.
Pre-emptions. In addition to cash sales and locations with military bounty land warrants, with agricultural college scrip, and with private land claim scrip, allowed pursuant to sections 2257 to 2287 Revised Statutes, and act of January 28, 1879, which contain provisions for the disposal of public lands to actual settlers to whom is given the preference right to purchase, on certain conditions, the tracts covered by their respective settlements, the pre-emptive principle is embodied in other enactments under which certain classes of public lands are held subject to entry, such as town sites under sections 2380 to 2394, and act of March 3, 1877. In reference to cases arising under the several laws referred to, the following is a stateof the work performed by the Pre-emption Division, G, during the year ending June 30, 1879: Contested cases in the division undecided July 1, 1878...
408 Contested cases in the division decided July 1, 1878...
In the division June 30, 1879, decided and undecided....
Of these, 485 are decided and 1,145 are undecided.
2, 050 1,082
Of these, 2,314 have not been acted on and 1,123 are suspended for various causes.
During the year ending June 30, 1879, 5,240 letters have been received; of these 170 remain unanswered. Number of letters written by the division..
5, 566 Number of pages recorded by the division.
4, 682 Number of pages copied by the division ....
2, 463 The condition of the work in the division is about the same as reported one year ago. (Annual report 1878, page 28.) While the clerks assigned to this division have generally performed their duties well, and have worked diligently to accomplish a different result, the figures show but a slight decrease in the amount of arrearages.
This office has already recommended the consolidation of the homestead and pre-emption laws. In addition to the cogent reasons which have heretofore been submitted in favor of the consolidation proposed, it seems pertinent here to advert to the fact that claims originating under the respective laws are convertible, at the option of the parties. Under the original homestead law of May 20, 1862, and as now embodied in section 2289 of the Revised Statutes, a pre-emption settler had the option of transmuting his claim to a homestead entry, and under the act of May 27, 1878, he is entitled to the credit on his homestead entry of all the time embraced in his pre-emption settlement. So, also, under the provisions of section 2301 of the Revised Statutes, the homestead claimant is allowed at any time prior to the expiration of five years to commute his homestead entry to a cash entry, and obtain patent therefor from the government as in other cases directed by law, upon making proofs of settlement and cultivation as required in the pre-emption law. It may also be stated that by the generous legislation of Congress since the year 1872 the time for the proofs and payments of pre-emption settlers has already been extended until large numbers of them have resided on their claims, or held legal possession of them, for a period of time much longer than is allowed under the homestead law. This is notably the case in all that region of the public domain injured by grasshoppers, and when the extent of that injury is taken into consideration, and the number of parties claiming to be sufferers by reason thereof, some idea may be formed of the immense aggregation of that class of pre-emptions. It is reasonable to suppose that hundreds and thousands of these claimants have made valuable improvements on their lands, and under the decisions of the Supreme Court in the case of Atherton vs. Fowler and Hosmer vs. Wallace, it is somewhat a matter of speculation what may be the issue of their claims as respects the time of the adjustment thereof and the portion of the land which may be finally awarded to them.
It is therefore suggested, in view of these serious complications, and in order to simplify the process of acquiring hones on the public domain, that the legislation which has been so repeatedly asked for by this office should receive the careful consideration of Congress.
I deem it proper to refer more particularly in this place to the recent decisions of the United States Supreme Court in the cases of Atherton vs. Fowler (6 Otto, 513), and Hosmer vs. Wallace (7 Otto, 575), construing the pre-emption laws. As contained in the Revised Statutes, these laws, among other things, provide as follows:
SEC. 2257. All lands belonging to the United States, to which the Indian title has been or may hereafter be extinguished, shall be subject to the right of pre-emption, under the conditions, restrictions, and stipulations provided by law.
SEC. 2259. 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 tiled a declaration of intention to become such, as required by the naturalization laws, who has made, or hereafter makes, a settlement in person on the public lands subject to pre-emption, and who inhabits and improves the same, aud who has erected or shall orect a dwelling thereon, is authorized to enter with the register of the land-office for the district in which such land lies, by legal subdivisions, any number of acres not exceeding one hundred and sixty, or a quarter section of land, to include the residence of such claimant, mon paying to the United States the ininimum price of such land.
SEC. 2260. The following classes of persons, unless otherwise specially provided for by law, shall not acquire any right of pre-emption under the provisions of the preceding sections, to wit:
First. No person who is the proprietor of three hundred and twenty acres of land in any State or Territory.
Second. No person who quits or abandons his residence on his own land to reside on the public land in the same State or Territory.
SEC. 2264. When any person settles or improves a tract of land subject at the time of settlement to private entry, and intends to purchase the same under the preceiling provisions of this chapter, be shall, within thirty days after the date of such settlement, file with the register of the proper district a written statement, describing the land settled upon, and declaring his intention to claim the same under the pre-emption laws; and he shall, moreover, within twelve months after the date of such settlement, make the proof, attidavit, and payment hereinbefore required. If he fails to file such written statement, or to make such affidavit, proof, and payment within the several periods named above, the tract of land so settled and improved shall be subject to the entry of any other purchaser.
SEC. 2263. Every claimant under the pre-emption law for land not yet proclaimed for sale is required to make known his claim in writing to the register of the proper land-office within three months from the time of the settlement, giving the designation of the tract and the time of settlement; otherwise his claim shall be forfeited and the tract awarded to the next settler, in the order of time, on the same tract of land, who has given such notice and otherwise complied with the conditions of the law.
SEC. 2266. In regard to the settlements which are authorized upon unsurveyed lands, the pre-emption claimant shall be in all cases required to file his declaratory statement within three months from the date of the receipt at the district land-office of the approved plat of the township embracing such pre-emption settlement.
SEC. 2267. All claimants of pre-emption rights, under the two preceding sections, shall, when no shorter time is prescribed by law, mako the proper proof and payment for the land claimed within thirty months after the date prescribed therein, respectiyely, for filing their declaratory notices, has expired.
SEC. 2273. When two or more persons settle on the same tract of land, the right of pre-emption shall be in him who made the first settlement, provided such person conforms to the other provision of the law; and all questions as to the right of pre-emption arising between different settlers shall be determined by the register and receiver of the district within which the land is situated; and appeals from the decision of district officers, in cases of contest for the right of re-emption, shall be made to the Commissioner of the General Land Office, whose decision shall be final, unless appeal therefrom be taken to the Secretary of the Interior.
Thus we have defined in explicit terms the lands which shall be sub. ject to pre-emption, the personal qualifications required in a pre-emptor, and what shall constitute a disqualification, as well as the several requirements of the law to entitle a party to exercise the right with reference to the classes of offered and unoffered lands respectively, and the pen. alty attached to a non-compliance therewith ; also the method of adjustment in case of conflicting pre-emption claims, and the original and appellate jurisdiction of the officers connected with the Department of the Interior charged with the adjudication of pre-emption cases.
In reference to the class of lands which, having been offered at public sale according to law, are subject to sale at ordinary private entry, the penalty prescribed by section 2264, above quoted, in case the settler fails to file or to prove up and pay for the land in time, is that the tract shall be subject to the entry of any other purchaser. This penalty has been enforced by the rulings of the department, and in this respect its rulings harmonize with the Supreme Court decisions referred to, as there is nothing in those decisions which holds that land subject to sale at private entry may not be purchased by any one desiring to do so, although it be oceupied and improved by another party, unless that party has the legal right of pre-emption.
In reference, however, to the class of lands which have not been
claimed, and which therefore are not subject to private entry, the penalty prescribed by section 2265, above quoted, in case the settler fails to comply with the legal requirements as therein given, is that the “ claim shall be forfeited and the tract awarded to the next settler in the order of time on the same tract who has given such notice and otherwise complied with the conditions of the law." The decisions of the Supreme Court which have been mentioned are to the effect that no other settler can do anything to acquire a pre-emption right as long as the delinquent party occupies and improves the land; and therefore the tract cannot be awarded to the next settler in the order of time, as provided for, so long as the first settler chooses to occupy it with improvements thereon. In the Atherton-Fowler case the court held that “The right to make a settlement was to be exerciseil on unsettled land; to make improvements on unimproved land. To erect a dwelling-house did not mean to seize some other man's dwelling. It had reference to vacant land ; to unimproved land." And again, in the Hosmer-Wallace case, the court declared that no act pertaining to the inception of pre-emption rights “ can be done on land when it is occupied and used by others."
The principle laid down by the court in these decisions seems to recognize a right of occupancy of the public lands as against parties seeking to enjoy the benefits of the pre-emption laws in the way pointed out therein, without restriction as to the person occupying or the area occupied. A person although not possessing the qualifications prescribed in the pre-emption laws-a minor or a foreigner-one who may have already exhausted his pre-emption right, who is already the proprietor of 320 acres of land, who may have large possessions already acquired from the public domain by settlement or otherwise—may occupy the public land to an extent only limited by his desire or means of making the requisite improvement, and there is no power to restrain or oust him, save the power of the Executive to bring the land into market under existing laws, or the legislative power to make some other disposal of the same.
The present policy of the government is adverse to bringing the public lands into market to be disposed of in large quantities to parties who would buy for speculative purposes. It contemplates rather that they should be held by the government for gradual disposal as they are required for small farms by actual settlers. In providing a method of reaching this object, the pre-emption, homestead, and timber-culture laws have been enacted. As the decisions of the Supreme Court referred to show that the unoffered public lands may be taken up and held indefinitely by parties not seeking to acquire title under these laws, to the exclnsion of those who do, I respectfully recommend that action be taken to bring the matter before Congress for legislation, with a view to limiting and regulating this right of occupancy in such manner as may be deemed expedient. It will perhaps be conceded that the meritorious settler already occupying public lanıl, with valuable improvements thereon, should not be deprived of his home and improvements in favor of another who may have acquired some technical advantage over him under the law, and that in such case the prior settler should be allowed the preference right to enter; but it is clear to my mind that this right should be made the subject of positive legislation, establishing and determining the proper limits of its enjoyment.
I desire also again to urge the recoinmendation contained in my last annnal report (page 29), that section 2262 of the Revised Statutes be so amended as to allow the pre-emption settler to make his personal affidavit before any officer residing in the vicinity of the land authorized