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to administer oaths, and whose official character is duly authenticated by the use of a seal or certificate.
I attach a copy of circular letter addressed to the registers and receivers of the district land offices under date of October 7, 1879, regarding the proper character of witnesses in making final proof under the homstead and pre-emption laws, viz:
DEPARTMENT OF THE INTERIOR,
GENERAL LAND OFFICE,
Washington, D.C., October 7, 1879. GENTLEMEX: It iselesired that the testimony ofiered by pre-emption and homestead claimants at the time of making final proof of their personal qualifications and compliance with the requirements of the law under which they claim shall be that of disinterested witnesses as nearly tree from objection as possible; and with thisend in view you will reject the testimony of persons who are members of or immediately connected with the family of a claimant, except in cases where it is impossible or impractieable for the claimant to furnish other testimony. In such cases, upon his making affidavit of the facts showing to your satisfaction the impossibility or impracticability of furnishing other testimony, you may receive such testimony as he may be able to procure, using great care to elicit from the witnesses the true state of facts relative to the claimant's right to make the desired entry.
In contested cases the testimony of relatives should be received, but will be considered only in so far as it corroborates or is in accordance with the general tenor of the evidence of disinterester persons. Very respectfully,
J. M. ARMSTRONG,
Icting Commissioner. REGISTERS AND RECEIVERS,
United States Land Offices. The following decisions are here given as having reference to pre. emption rights:
TOWN SITE OF SEATTLE vs. VALENTINE ET AL.
A town may be located upon the public lands, or partly upon the public lands and partly upon private
lands, but in case the inhabitants of the town reside upon the private lands they cannot be considered as occupants of the public lands for the purpose of supplying the number of inhabitants
necessary to authorize an entry of the public lands. The right of a town to make an entry must be computed upon the basis of the number of occupants
of the public lands. Location of Valentine scrip within the limits of an incorporated town denied. (See extracts from decision in the Concordia town site' case published in the annual report for 1876 page 52.)
DEPARTMENT OF THE INTERIOR,
ll'ashington, March 19, 1879. Sir: I have considered the case of The City of Seattle 18. Hugh McAleer et al., preemption claimants, the Northern Pacific Railroad Company, and Thomas B. Valentine, scrip claimant, involving certain lands in sections 4, 5, 6, and 9, township 24 north, range 4 east, Olympia land (listrict, Washington Territory, ou appeal from your decision of January 12, 1877, lejecting the claims of all of the parties except that of Thomas B. Valentine to one tract of land.
The facts of this case are as follows, viz: The lands in dispute, together with 322.64 acres immediately west of the same, were settled mon and located in 1832 by D. S. Maynard, a married man, under the act of Congress approveel September 27, 1850, commonly known as the “Donation act."
Said location was known as clonation claim No. 43, for 610 acres, and notification (No. 407) of the location of said claim was dited October 26, 1853.
Donation certificate No. 440, for said claim, was issued by the local land officers to D. S. Maynard and Catharine P. Maynard, his wife, on May 14, 1869.
On August 12, 1872, pour predecessor, Mr. Commissioner Drummond, rejected the wife's claim to the east half of said location, and approved the lushand's claim to the west half thereof, and this decision was attirmed by my prevleressor, Hon. C'. Delano, on March 1, 1873.
After the rejection of the claim of the wife to the east half of' said claim, the public surveys were extended over the land and a plat of survey tiled in the local land office on March 18, 1874.
The original town of Seattle was fowded in 1872, and the occupied portion of the present city is located on the west or approved portion of the Maynard louation claim.
The city of Seattle was incorporated by the Territorial legislature on December 2, 1869, and all of the lands in dispute were included within the corporate limits thereof.
A new act of incorporation was passed by the Territorial legislature on November 12, 1875, and by section 107 thereof it was provided :
** SEC. 107. All of the act of which this act is amendatory, except the sections incorporated herein without amendment otherwise than by changing the number therof, be, and the same is hereby, repealed.
* All other acts or parts of acts heretofore passed in relation to the subject matter herein contained are hereby repealed.
“And all other acts or parts of acts in anywise inconsistent with this act are hereby repealed."
The tracts in sections 8 and 9 were not included within the corporate limits of the city by the act of 1875.
On May 12, 1375, Henry L. Yesler, mayor of the city of Seattle, applied on behalf of said city to enter the lands in question.
The records show that the lands applied for had prior to that time been platted into lots, blocks, streets, alleys, and a public park.
The city is shown to contain from 3,000 to £3,500 inhabitants, most of whom reside on the approved portion of the old Maynard claim.
The only actual improvements on the lands in qnestion are those made by the preemption claiinants and part of a corra! attached to the slaughter-house of Phelps and Wadleigh.
This is the case presented by the city. High McAleer filed «leclaratory statement 3162 for lots 13 and 14, section 4, lots 7, 8, and 9, section 5, and lot 5. section 8, on April 22, 1874, alleging settlement November 22, 1869.
F. A. Minich filed declaratory statement 3238, June 26, 1874, for lots 8 and 9, section 4, alleging settlement June 22, 1874, and made proof and payment May 4, 1875, per cash entry No. 5069.
E. W. Blake filed declaratory statement 3242, July 2, 1874, for lots 13 and 14, sertion 4, alleging settlement July 1, 1874.
Ephraim Calvert filed declaratory statement 3249, July 11, 1874, for lot 5, section , alleging settlement July 1, 1874.
Charles C. Rich filed declaratory statement 3243, July 2, 1874, for lots 7, 8, 11, and 12, section 4, alleging settlement June 22, 1874, and made cash entry No. 5011, January 3, 1875.
The odd sections in said township “not reserved, sold, granted, or otherwise appropriated, and free from pre-emption or other claims or rights,” were withdrawn for the benefit of the Northern Pacific Railroad Company on August 13, 1870.
Thomas B. Valentine made application on May 1, 1876, to locate Valentine scrip E, Nos. 297, 298, 299, and 300, on lots 7, 8, 9, 10, 11, 12, 13, and 14, section 4. He also applied on June 9, 1876, to locate Valentine scrip E, No. 301, on lot 5, section 8.
You rejected the application of the city of Seattle to enter said lands because the testimony showed that the inhabitants of the city resided upon private property and not upon the public lands, and because the lands applied for were not used and occupied for municipal purposes.
You rejected the pre-emption claim of McAleer, first, because he was the owner of 320 acres of land at the date when lie first claimed as a pre-emptor in 1871; secondly, becanse at the date of his settlement and filing the land was included within the corporate limits of the city and not subject to disposal under the pre-emption laws.
You held the cash entry of Rich, and the filing of Blake for cancellation, because they were made for lands included within the corporate limits of the city; and also because they were not qualified pre-emptors under section 2261 of the Revised Statutes, having previously tiled for other tracts of land.
The cash entry of Minich was held for cancellation, because the lands included therein were at the date of his setttlement and entry included within the corporate limits of the city. The filing of Calvert was held for cancellation, because he had abandoned his residence on the land prior to the passage of the act of November 12, 1275, by which the land was excluded from the corporate limits of the city, and had not lived thereon since that date, and at the date of trial his house was not habitable.
You rejected the claim of the Northern Pacitic Railroad Company to the lands in sections 5 and 9, because said lands were covered by the donation claim of D. S. Maynard and wife at the date of the withdrawal for railroad purposes, and were therefore excepted from the operation of the grant; basing your opinion upon the decision of the Supreme Court of the United States in the case of Newhall vs. Sanger (2 Otto, 761).
The application of Valentine to locate his scrip upon the lands in section 4 was rejeeted because said tracts were located within the incorporated limits of the city at the date of said application.
The application of Valentine to locate scrip E, 301, on lot 5, section, was granted for the reason that the land was found to be without the corporate limits of the city and wholly unoccupied and unappropriated.
There is no error in your decision rejecting the claim of the Northern Pacific Railroad Company to the odd sections of land.
The application of the city of Seattle to enter the lands in question was properly rejected. Under the town site laws, a town may be located entirely upon the public lands or partly upon the public lands and partly upon private lands, but in case the inhabitants of the town reside upon the private lands, they cannot be considered as occupants of the public lands for the purpose of supplying the number of inhabitants necessary to authorize an entry of the public lands.
In such cases the right of a town to make an entry must be computed upon the basis of the number of occupants of the public lands, and the number of occupants of the private lands cannot be considered. Every legal subdivision of the public lands applied for need not be actually occupiel, büt there must be a sufficient mumber of inhabitants upon some part of the public lands to authorize an entry of the lands for town purposes. The evidence in this case shows that at the date of this application there were not to exceed six persons residing upon the lands applied for, and there was no error in your decision rejecting the same.
It is claimed by counsel for the pre-emptors:
1. That the evidence fails to establish the fact that the city of Seattle was ever legally incorporated, but does establish the contrary.
2. That the acts of 1869 and 1875, incorporating the city, have been decided to be invalid by the district court of said Territory, in the case of the City of Seattle 18. Henry L. Yesler, and that this decision is tinal and conclusive, except in a court having appellate jurisdiction in the same question and case.
3. That the rights of the pre-emption claimants had become vested prior to the reincorporation of the city by the act of 1875, and repeal of the act of incorporation of 1869,
4. That the claims of the pre-emptors are confirmed by section 2 of an act of Congress approved March 3, 1-77, entitled “An act respecting the limits of reservations for town sites upon the public domain." (19 Statutes, p. 392.)
1. With reference to the first point:
It appears that the city of Seattle was incorporated by a special act of the legislature of Washington Territory, approved December 2, 1869, which act was amended by another special act, approvel November 12, 1875, and it is contended that said special acts are voiel because they were enacted in violation of the provisions of an act of Congress approved March 2, 1867. (14 Statutes, 420, now section 1899 of the Revised Statutes.) On this point it must be held that this department has no authority to decide thilt the acts of the Territorial legislature are void. The validity of the acts must be determined by the courts.
2. The record shows that the city of Seattle brought an action against Henry L. Yesler for the recovery of a sum of money assessed against his property for grading one of the streets of said city, and that the complaint showed on its face that plaintiff' was a corporation created and organized under the said special acts of the legislature of the Territory.
At the January term, 1877, of the district court the defendant filed a demurrer to the plaintifi's complaint, and assigned as one of his grounds of demurrer that plaintiff was not a lawful body politic and corporate, because under the laws of the United States a mwicipal corporation could not be created by special act of a Territorial legislature. There was joinder in demurrer, whereupon the court sustained the demurrer and renderei judgment against the plaintifi
' for the costs of suit. The plaintiff thereupon took the case to the supreme court of the Territory by writ of error, where it now remains pending and decided.
As the question at issue is now sub judice, the acts creating the corporation must be considered as valid until otherwise decided by the supreme court of the Territory.
3. The city was incorporated at the time the pre-emption claimants made their settlements on the land in question, and it was therefore impossible for them to have acquired any vested rights within the incorporated limits.
This principle was fully discussed and decided by Mr. Justice Swayne, in 1868, in the case of Root 18. Shields (1 Woolworth, C. C., p. 340).
The act of 1875 was a substitute for the incorporation act of 1869, and while it repealed the former law it also established a new law of incorporation which went into operation at the same moment of time the old law was repealed, thus leaving no period of time within which an adverse right could attach.
4. It is said that the pre-emption claims are confirmed by section 2 of the act of Congress approvedl March 3, 1977. Saiil section is in the following words:
"That where entries have been heretofore allowed upon lands atterware ascertained to have been embraced in the corporate limits of any town, but which entries are or shall be shown to the satisfaction of the Commissioner of the General Land Office to include only vacant unoccupied lands of the United States, not settled upon or used for municipal purposes nor devoted to any public use of such town, said entries, if regular in all respects, are hereby confirmed and may be carried into patent: Provided, That this confirmation shall not operate to restrict the entry of any town site to a smaller area than the maximun quantity of land which, by reason of present population, it may be entitled to enter under section twenty-three hundred and eighty-nine of the Revised Statutes.” (19 Statutes, 392.)
None of the pre-emption claimants, except Rich and Minich, have entered the land claimed by them, and their claims are not therefore confirmed by said act. Rich is not a qualitieil pre-emptor, and his entry being illegal is not confirmed.
With reference to the entry of Minich, it will be observed that the section above quoted confirms such entries only as have been allowed for lands “afterward ascertained” to be within the corporate limits of a town. The testimony in this case shows that during most of the period of Minich's alleged residence on the land he was the marshal of the city of Seattle, that he voted in the city election in 1874, and exercised all of the rights and privileges claimed and exercised by other citizens of the city. His authority as marshal was contined to the corporate limits of the city, and it was impossible for him not to have known, as a matter of fact, that the land claimed by him was within the city limits. This section was not intended to confirm entries made within the corporate limits of a city, by persons who had full knowledge of the fact that the lands were so situated, at the time the entries were made, and said entry does not fall within the remedial provisions of the section, and is not contirmed.
After a careful examination of the testimony, I am of opinion that said pre-emption claims were properly rejected by you, and that they are not confirmed by the act of March 3, 1077. Your decision rejecting the application of Thomas B. Valentine to enter certain tracts within the corporate limits of the city with Valentine scrip is affirmed on authority of my decision of the 28th ultimo, in the case of Thomas B. Valentine rs. The City of Chicago. The application of Mr. Valentine to locate Valentine scrip E, 301, on the unoccupied and unappropriated tract outside of the corporate limits of the city is granted.
Your decision is affirmed for the reasons stated, and the papers transmitted with your letter of February 4, 1875, are herewith returned. Very respectfully,
Secretary. The COMMISSIONER OF THE GENERAL LAND OFFICE.
JAMES R. LANGLEY.
Lands within the granted limits of the Atlantic and Pacific Railroad Company were not excepted from
the grant to said company by reason of a prior withdrawal for the Southern Pacific Railroad Com. pany, and the even sections within such withdrawals were raised to the double minimum price by virtue of the proviso to section 2357 of the Revised Statutes.
DEPARTMENT OF THE INTERIOR,
Washington, June 16, 1879. SIR: I have considered the appeal of James R. Langley from your decision of July 3, 1878, rejecting his application to enter at $1.25 per acre lots i, 2, 3, and 4, section 2, township 24 south, range 14 east, San Francisco land district, California.
The land in question is within the thirty mile or indemnity limits of the Southern Pacific Railroad, the right of which attached on January 3, 1867 ; it is also within the twenty mile or granted limits of the Atlantic and Pacific Railroad, the right of which attached on definite location, August 15, 1872.
Mr. Langley's application to enter this land at $1.25 per acre is based upon the ground “that the land is situated within the indemnity belt of the reservation for the Southern Pacific Railroad, and was included in said belt at the date of the reservation for the Atlantic and Pacific Railroad, and the odd sections being so reserved could not be affected by the latter reservation, wherefore it follows that as the odd sections in said belt were not affected by the reservation for the Atlantic and Pacific Railroad, the even sections within such belt could not be affected by the second reservation, but remained subject to entry at the minimum price as they had been prior to the Atlantic and Pacific Railroad withdrawal."
You decided that said lands were raised to $2.50 per acre by the proviso to section 2357 of the Revised Statutes, and rejected Mr. Langley's application, and he has appealed from your decision.
The grants to the Atlantic and Pacific Railroad Company and the Southern Pacific Railroad Company were made by the act of Congress approved July 27, 1266 (14 Statutes, 299), and both companies have an equal right to the lands within the overlapping limits without regard to the question of priority of location or construction.
The applicant in this case admits that the lands which he wishes to enter are within the granted limits of the Atlantic and Pacitic Railroad, but he claims that they were excepted from the grant to said road by reason of a prior withdrawal for the Southeri. Pacific Railroad, and being within the indemnity limits of the latter road they were not raised to the double minimum price.
This position is wholly untenable. In the case of Sioux City Railroad Company rs. The Union Pacific Railroad Company, where both grants were made by the same act of Congress, and where one company had secured priority of location and construction, Judge Dillon held that neither road had an exclusive right to lands within the overlapping limits, and sustained the validity of a joint patent for them issued by your office.
In passing upon this question the learned judge said: “The inception of the grants to both of these contesting companies is the same. They are contemporaneous in their origin. They both spring from the same legislation. The right of the one company, as respects the other, does not depend upon priority of location or construction.” (4 Dillon, U. S. Circuit Court Reports, p. 307.)
The same doctrine was announced on a similar state of facts by Associate Justice Miller, of the Supreme Court of the United States, in the matter of the contest between the McGregor and Missouri River Railroad Company r8. The Sioux City and Saint Paul Railroad Company, involving certain lands within the overlapping limits of said roads.
The doctrine was adopted also by this department in the case of The Central Branch Union Pacific Railroad Company r8. The Kansas Pacific Railroad Company. (Copp's Land Owner for January, 1879, p. 148.)
I am of opinion that the lands within the granted limits of the Atlantic and Pacific Railroad Company were not excepted from the grant to said company by reason of a prior withdrawal for the Southern Pacific Railroad Company, and that said lands were raised to the double minimum price by virtue of the proviso to section 2357 of the Revised Statutes.
Your decision is affirmed for the reasons stated, and the papers transmitted with your letter of April 23, 1879, are herewith returned. Very respectfully,
Secretary. The COMMISSIONER OF THE GENERAL LAND OFFICE.
PATRICK CLASBY. The odd-numbered sections excepted from the grant to the Western Pacific Railroad Company, because
within the claimed limits of an upadjusted private land claim at the date of withdrawal, but finally excluded from such claim, are not excepted from the operations of the act of March 6, 1868, but must be sold for two dollars and fifty cents per acre.
DEPARTMENT OF THE INTERIOR,
Washington, October 15, 1878. Sir: I have considered the appeal of Patrick Clasby et al. from your decision of August 13, 1877, involving certain lands in township 2 north, range 1 east, San Francisco land district, California.
The facts of this case, as shown by the record, are as follows, viz:
Patrick Clasby made pre-emption cash entry No. 4929 for the southwest quarter section 34, township 2 north, range 1 east, on September 21, 1874.
James Easton made pre-emption cash entry No. 4941 for the northeast quarter section 34, township 2 north, range 1 east, on September 22, 1874.
Alexander A. Nelson made pre-emption cash entry No. 4942 for the southwest quarter section 26, township 2 north, range 1 east, on September 22, 1874.
Anton Bussman made pre-emption cash entry No. 4943 for the southeast quarter section 26, township 2 north, range 1 east, on September 22, 1874.
All of said parties paid the minimum price of $1.25 per acre for the lands entered by them. They all settled subsequent to the withdrawal of January 30, 1865. Said lands were formerly within the claimed limits of the Rancho Los Medanos, a private land grant made by the Mexican authorities prior to the cession of California by the treaty of Guadaloupe Hidalgo, and finally confirmed to Jonathan D. Stevenson et al. by the United States district court, in default of appeal, on April 2, 1857. A survey of this rancho was made by Deputy Surveyor Lewis in October, 1860, and approved by Surveyor General Mandeville on December 18, 1860. Said survey was subsequently ordered into court on objection filed by the United States district attorney, pursuant to the provisions of the act of Congress approved June 14, 1860. (12 Statutes, p. 33.) By decree of the district court, dated February 3, 1869, the “Lewis survey” was rejected and a new one ordered. Pursuant to this decree a survey was executed by Deputy Surveyor Thompson in October, 1869, and approved by the court on November 23, 1869. An appeal from the decision of the district court approving said survey was dismissed by the circuit court on September 23, 1871, and a patent was issued for the land October 8, 1872.
Siid lands are within the twenty mile limits of the withdrawal of January 30,