section, the occupant shall be permitted to enter one hundred and sixty acres, to include 14 July 1832. his or their improvement, at the price aforesaid. 4 Stat. 663 1 May 1832, to be time in certain cases. 72. In all cases in which persons were settlers or occupants of the public lands prior 2 March 1833 3 1. to the first day of May 1832, and were authorized to enter under the provisions of the act, entitled "An act supplementary to the several laws for the sale of public lands," Settlers prior to approved April 5th 1832, and were prevented from making their entries, in consequence allowed further of the public surveys not having been made and returned; or where the land was not attached to any land district; or where the same has been reserved from sale in conse quence of a disputed boundary between two states, or between a state and territory; the said occupant shall be permitted to enter the said lands on the same conditions, in every respect, as were prescribed in said act, within one year after the surveys are made, or the land attached to a land district, or the boundary line established; and if the land shall be proclaimed for sale before the expiration of one year as aforesaid, then the said settlers or occupants shall be permitted to enter before the sale thereof. 4 Stat. 678. 73. Every settler or occupant of the public lands, prior to the passage of this act, who 19 June 1834 § 1. is now in possession, and cultivated any part thereof, in the year 1833, shall be entitled to all the benefits and privileges provided by the act entitled An act to grant pre- Act 29 May 1830 emption rights to settlers on the public lands," approved May 29, 1830; and the said act is hereby revived and shall continue in force two years from the passage of this act and no longer. (a) revived for two years. Ibid. 22. 74. Where a person inhabits one quarter-section and cultivates another, he shall be permitted to enter the one or the other at his discretion: (b) Provided, Such occupant When settlers to shall designate, within six months from the passage of this act, the quarter-section of elect between which he claims the pre-emption under the same.(c) sectious. Ibid. 3. 75. All persons residing on the public lands, and cultivating the same, prior to the year 1829, and who were deprived of the advantages of the law passed on the 29th May Pre-emption law 1830, by the constructions placed on said law by the secretary of the treasury, be, and extended to certhey are hereby, authorized to enter, at the minimum price of the government, one quarter-section of the public lands, within said land district. taiu persons. 5 Stat. 251. ed entitled to pre vived. claimants. 76. Every actual settler of the public lands, being the head of a family, or over 22 June 1838 2 1. twenty-one years of age, who was in possession and a housekeeper, by personal residence thereon, at the time of the passage of this act, and for four months next preceding, Who to be deem shall be entitled to all the benefits and privileges of an act entitled "An act to grant emption. pre-emption rights to settlers on the public lands," approved May 29th 1830; and the said act is hereby revived and continued in force two years: (d) Provided, That where Act of 1850 remore than one person may have settled upon and cultivated any one quarter-section of land, each one of them shall have an equal share or interest in the said quarter-section, Division betweel but shall have no claim, by virtue of this act, to any other land: And provided always, That this act shall not be so construed as to give a right of pre-emption to any person Not to extend to or persons, in consequence of any settlement or improvement made before the extinguish- Indian lands. ment of the Indian title to the land on which such settlement or improvement was made ; or to the lands lately acquired by treaty with the Miami tribe of Indians, in the state of Indiana, of which proclamation was made by the president of the United States, on the 22d day of December, 1837; (e) or to any sections, or fractions of sections of land included within the location of any incorporated town; or to the alternate sections to other alter- Or to lands renate sections granted to the use of any canal, railroad or other public improvement on the route of such canal, railroad or other public improvement; or to any portions of public lands, surveyed or otherwise, which have been actually selected as sites for cities or to town sites. or towns, lotted into smaller quantities than eighty acres, and settled upon and occupied for the purposes of trade, and not of agricultural cultivation and improvement; or to any land specially occupied or reserved for town lots, or other purposes, by authority of the United States: And provided further, That nothing herein contained shall be construed to affect any of the selections of public lands for the purposes of education, the use of salt springs, or for any other purpose which may have been or may be made by any Certain reservastate, under existing laws of the United States; but this act shall not be so construed tions excepted. as to deprive those of the benefits of this act, who have inhabited, according to its provisions, certain fractions of the public lands within the land district of Palmyra, in the (a) This embraces the provisions engrafted on the act of 1830 by that of 23 January 1832, (supra, 69). 2 Opin. 701. And by at 14 July 1832, (supra, 70-1). 3 Ibid. 195. (b) Where the improvement is on a fractional section containing over 160 acres, the claimant may enter, in conformity with the legal subdivisions recognised by the acts of 1830 and 1834, a quantity of land not exceeding 160 acres. But a 40 acre lot, created by the operation of the act 5 April 1832. (infro, 129), is not such a legal subdivision, and cannot be taken in addition to the fractional quarter containing the pre-emptor's improvement. 3 Opin. 313. (c) The loss of the special privilege given by this section, by served. reason of an omission to designate within six months, does not impair the right of the settler to a pre-emption under the first section of the act. 3 Opin. 258. (d) See acts 3 March 1843, (infra, 95–6), and 3 August 1846, (infra, 323), which seem to treat this law as still in force. See also act. 15 June 1844, "to confirm certain entries of land in the St. Augustine land district, in the territory of Florida, made under the pre-emption law of 22 June 1838." 5 Stat. 673. (e) This act was extended to actual settlers on the lands acquired by treaty with the Miami Indians, by act 3 August 1846, infra, 323. 22 Jue 1838. state of Missouri, which were reserved from sale in consequence of the surveys of Spanish and French grants, but are found to be without the lines of said grants. Oath claimant. 77. That before any person claiming the benefit of this law shall have a patent for the land which he may claim by having complied with its provisions, he shall make oath before some person authorized by law to administer the same, (a) (which oath, with the certificate of the person administering it, shall be filed with the register of the proper land office when the land is applied for, and by said register sent to the office of the commissioner of public lands), that he entered upon the land which he claims, in his own right, and exclusively for his own use and benefit, and that he has not, directly or indirectly, made any agreement or contract, in any way or manner, with any person or persons whatever, by which the title which he might acquire from the government of the United States should inure to the use or benefit of any one except himself, or to convey or transfer the said land, or the title which he may acquire to the same, to any other person or persons whatever, at any subsequent time; and if such person claiming Penalty for false the benefit of this law as aforesaid, shall swear falsely in the premises, he shall be subject to all the pains and penalties for perjury, forfeit the money which he may have paid for the land, and all right and title to the said land, and any grant or conveyance which he may have made in pursuance of such agreement or contract as aforesaid, shall be void, except in the hands of a purchaser in good faith, for a valuable consideration without notice. And the certificate which shall be filed with the commissioner as aforesaid, shall be taken to be conclusive evidence that the oath was legally administered.(b) swearing. 1 June 1840 1. 5 Stat. 382. When settlers may elect between sections. Ibid. 2. Pre-emption right not to be affected by leas 78. In all cases where a settler on the public lands may reside, or have his dwellinghouse upon one quarter-section, and cultivate land on another and different quartersection, such settler may make his election under the act to which this is a supplement, to enter either of said quarter-sections, or legal subdivisions of each, so as not to exceed one quarter-section in all. 79. In all cases where an individual may have made an improvement on the public land, and had afterward leased or rented such improvement to another person who was in possession of the same on the 22d of June 1838, and for the period of four months ing of improve next preceding, or when the lessor and lessee, together, occupied such improvement during said four months, the person who made such improvement, and so rented or leased the same, shall be entitled to the right of pre-emption, notwithstanding he may have been out of possession of his improvement during said four months, or any part thereof. ment. Ibid. 23. 80. Every settler on the public lands, which were not surveyed at the passage of the Settlers on school act to which this is a supplement, and who, since the survey of such public lands, has lands may enter been ascertained to have resided at the date of said act, and for four months preceding, others. Ibid. 24. And settlers on seminaries. on a sixteenth section, set apart for the support of schools in any township, shall be entitled to enter at the minimum price any other quarter-section of the public lands lying in the same land district, to which no other person has the right of pre-emption, on making satisfactory proof of his or her residence as aforesaid on such sixteenth section, before the register and receiver of the land office of said district. 81. Every person who may have been a settler, within the meaning of the act to which this is a supplement, on any public land before its selection by any state for the purposes lands selected for of a seminary of learning, under any act of congress authorizing such selection, on satisfactory proof of the facts before the register and receiver of the district in which his improvements were situated, shall be permitted to enter at the minimum price any other quarter-section lying in the same land district, to which no other person has the right of pre-emption. Ibid. 25. Act of 1838 revived and exended. 1 Sept. 1841 ? 10. 5 Stat. 455. 82. That the "Act to grant pre-emption rights to settlers on the public lands," approved June 22d 1838, be and the same is hereby continued in full force till the 22d day of June 1842; (c) and the right of pre-emption, under its provisions, shall be, and hereby is, extended to all settlers on the public lands at the date of this act, with the same exceptions, whether general or special, and subject to all the limitations and conditions contained in the above-recited act, and with the explanatory provisions of the preceding sections of this act; (d) and nothing in the last proviso of the act of the 22d of June 1838, shall be so construed as to defeat any right of pre-emption accruing under said act, or under this act, or under any preceding act of congress; nor shall said pre-emption claims be defeated by any contingent Choctaw location. 83. Every person being the head of a family, or widow, or single man, over the age of twenty-one years, and being a citizen of the United States, (e) or having filed his (a) This oath may be administered by a state officer having power to administer oaths. United States v. Winchester, 2 McLean, 135. United States v. Bailey, 9 Pet. 238. (b) The remainder of this section is repealed by act 4 September 1841, infra. 83. (c) The acts of 1838 and 1840 revived the law of 1830. 40pin. 20. (d) The residence hereby required is limited to the date of this act, and need not have continued for four months next preceding it, as required by the act of 1838. 4 Opin. 198. (e) It was decided by the secretary of the interior, on the 20 August 1857, that free colored persons are not entitled to the benefits of this act: since they are not citizens within the 4 Sept. 1841. to settlers on the declaration of intention to become a citizen, as required by the naturalization laws, wh. since the first day of June A. D. 1840, has made or shall hereafter make a settlement in Pre-emption of person on the public lands to which the Indian title has been, at the time of such settle- 160 acres granted ment, extinguished, and which has been, or shall have been, surveyed prior thereto;(a) public lands. and who shall inhabit and improve the same, and who has or shall erect a dwelling thereon; shall be and is hereby authorized to enter with the register of the land office for the district in which such land may lie, by legal subdivisions, any number of acres not exceeding one hundred and sixty, or a quarter-section of land, to include the residencc of such claimant,(6) upon paying to the United States the minimum price of such land, subject, however, to the following limitations and exceptions:-No person shall be Exceptions. entitled to more than one pre-emptive right by virtue of this act; no person who is the proprietor of three hundred and twenty acres of land in any state or territory of the United States, and no person who shall quit or abandon his residence on his own land to reside on the public land in the same state or territory, shall acquire any right of preemption under this act; no lands included in any reservation, by any treaty, law or proclamation of the president of the United States, or reserved for salines, or for other purposes; no lands reserved for the support of schools ;(c) nor the lands acquired by either of the two last treaties with the Miami tribe of Indians in the state of Indiana ;(d) or which may be acquired of the Wyandot tribe of Indians in the state of Ohio; or other Indian reservation to which the title has been or may be extinguished by the United States, at any time during the operation of this act; no sections of land reserved to the United States alternate to other sections granted to any of the states for the construction of any canal, railroad or other public improvement; no sections or fractions of sections included within the limits of any incorporated town; no portions of the public lands which have been selected as the site for a city or town; (e) no parcel or lot of land actually settled and occupied for the purposes of trade and not agriculture; and no lands on which are situated any known salines or mines, shall be liable to entry under and by virtue of the provisions of this act. And so much of the proviso of the act of 22d of Repeal of provi June 1838, or any order of the president of the United States, as directs certain reservations to be made in favor of certain claims under the treaty of Dancing-rabbit Creek, be and the same is hereby repealed: Provided, That such repeal shall not affect any title to any tract of land secured in virtue of said treaty. to act of 1838. Ibid. 11. 84. When two or more persons shall have settled on the same quarter-section of land, the right of pre-emption shall be in him or her who made the first settlement, (g) pro- First settler to vided such persons shall conform to the other provisions of this act; and all questions have the right. as to the right of pre-emption arising between different settlers, shall be settled by the By whom quesregister and receiver of the district within which the land is situated, subject to an appeal be determined. to, and a revision by, the secretary of the treasury of the United States. tions of right to 85. Prior to any entries being made under and by virtue of the provisions of this act, Ibid. 12. proof of the settlement and improvement thereby required, shall be made to the satisfac- Proof of settletion of the register and receiver of the land district in which such lands may lie, agree- ment, how made ably to such rules as shall be prescribed by the secretary of the treasury, (h) who shall each be entitled to receive fifty cents from each applicant for his services, to be rendered Assignments to as aforesaid; and all assignments and transfers of the right hereby secured, prior to the issuing of the patent, shall be null and void. be void. Ibid. 13. 86. Before any person claiming the benefit of this act shall be allowed to enter such lands, he or she shall make oath before the receiver or register of the land district in oath of claimwhich the land is situated, (who are hereby authorized to administer the same), that he ants. or she has never had the benefit of any right of pre-emption under this act; that he or she is not the owner of three hundred and twenty acres of land in any state or territory of the United States, nor hath he or she settled upon and improved said land to sell the same on speculation, but in good faith to appropriate it to his or her own exclusive use meaning of the constitution of the United States: Dred Scott v. Sandford, 19 How, 393. But see contra. 4 Opin, 147; and Foremans v. Tamm, 10 Leg. Int. 38. A party, prima facie entitled to preemption, should not be precluded from receiving a patent for the land by the mere allegation of his being an alien. 5 Opin. 551. Indians and half-breeds, however, are not citizens within the meaning of the act. 7 Ibid. 746. (a) This act is expressly confined to the surveyed lands. O'Conner r. Corbitt, 3 Cal. 370. See infra, 97. (b) Extended to settlers on the Dubuque claim, in the territory of Iowa, by act 16 August 1842, (5 Stat. 507); to settlers on the lands acquired by treaty from the Miami Indians, in Indiana, by act 3 August 1846, (infra, 323); to settlers on the Menomonee purchase, north of Fox river. in Wisconsin, by act 27 May 1852, (10 Stat. 9); to settlers on the reserved lands along the lines of all the railroads in the United States wherever public lands have been, or may be, granted by acts of congress; and to settlers on lands reserved on account of French, Spanish and other grants, which have been declared invalid, by act 3 March 1853, (infra, 104); to settlers on the public lands in New Mexico, Kansas and Nebraska, by act 22 July 1854, (infra, 646); and to settlers on the public lands in Minnesota, whether surveyed or not, by act 4 August 1854, (infra, 108). (c) See infra, 91. (e) Seo infra, 99; and 7 Opin. 733. (g) The person commencing an improvement has a right to continue, and any one who intervenes may be considered a trespasser; but if the first occupant give way to a second. and the right of pre-emption is granted to the second, it is good against all the world except the first occupant. United States v. Stanley, 6 McLean. 409. (h) Settlers upon the public lands must comply with the conditions of the land laws. in order to avail themselves of the privi lege of pre-emption. They must give the written notice of their settlement, and intention to claim the right of pre-emption. within thirty days from the date of their entering personally on the land with the intention of settling there. They must also inhabit, improve, build, pay and make proof, within twelve months, to be entitled to preference over those who may have entered the same lands at the land office. 4 Opin. 493. 4 Sept. 1841. or benefit; and that he or she has not, directly or indirectly, made any agreement or contract, in any way or manner, with any person or persons whatsoever, by which the title which he or she might acquire from the government of the United States, should · inure in whole or in part, to the benefit of any person except himself or herself; and Penalty for false if any person taking such oath shall swear falsely in the premises, he or she shall be swearing. subject to all the pains and penalties of perjury, (a) and shall forfeit the money which he or she may have paid for said land, and all right and title to the same; and any grant or conveyance which he or she may have made, except in the hands of bonâ fide Certificate of oath purchasers, for a valuable consideration, shall be null and void. And it shall be the duty of the officer administering such oath to file a certificate thereof in the public land office of such district, and to transmit a duplicate copy to the general land office, either of which shall be good and sufficient evidence that such oath was administered according to law. to be filed. Ibid. 14. lauds not to be 87. This act shall not delay the sale of any of the public lands of the United States Sales of public beyond the time which has been, or may be appointed by the proclamation of the president; nor shall the provisions of this act be available to any person or persons who shall fail to make the proof and payment, and file the affidavit required, before the day appointed for the commencement of the sales as aforesaid. delayed. Ibid. 15. Settlers to file register. 88. Whenever any person has settled or shall settle and improve a tract of land, subject at the time of settlement to private entry, and shall intend to purchase the same statement with under the provisions of this act, such person shall in the first case, within three months after the passage of the same, and in the last within thirty days next after the date of such settlement, (b) file with the register of the proper district a written statement, describing the land settled upon, and declaring the intention of such person to claim the same under the provisions of this act; and shall, where such settlement is already made, within twelve months after the passage of this act, and where it shall hereafter be made, within the same period after the date of such settlement, make the proof, affidavit and On failure, to be payment herein required; and if he or she shall fail to file such written statement as subject to private aforesaid, or shall fail to make such affidavit, proof and payment, within the twelve months aforesaid, the tract of land so settled and improved shall be subject to the entry of any other purchaser. entry. 20 Aug. 1842 ? 1. 5 Stat. 534. Certain invalid entries confirma ed, and patents to issue. No right of pre emption to be conferred by entry on a tract sold under previous pre-emp tion laws, &c. 3 March 1843 2. 5 Stat. 620. Executors may complete pre emption claims. To inure for the benefit of the heirs. Ibid. 3. Settlers on re 89. In all cases when any entry has been made, under the pre-emption laws, of land which was public land, subject to sale at the date of such entry, and when patents for the same have not been issued from the general land office, because of the original tract claimed, or the float arising therefrom, exceeding the quantity specified in the law; or when the adjudication has been made by the receiver and the clerk of the register, acting in the stead of the register, or when the proof upon which the claim is founded is not in the form, nor full, as to all the facts required by law, but substantially so; such entries and sales are hereby confirmed, and patents shall be issued thereon, as in other cases: Provided, That the secretary of the treasury shall be satisfied that such entries have been in other respects fair and regular, and that the evidence sustains the claim, that they are not contested by other persons claiming the same, and that no fraud shall appear in them: And provided also, That the act of 4th September 1841, entitled “ An act to appropriate the proceeds of the sales of public lands, and to grant pre-emption rights," shall be so construed as not to confer on any one a right of pre-emption by reason of a settlement made on a tract heretofore sold under a prior pre-emption law, or at private entry, when such prior pre-emption or entry has not been confirmed by the general land office, on account of any alleged defect therein, and when such tract has passed into the hands of an innocent and boná fide purchaser. 90. In any case where a party entitled to claim the benefits of any of the pre-emption laws shall have died before consummating his claim, by filing, in due time, all the papers essential to the establishment of the same, it shall be competent for the executor or administrator of the estate of such party, or one of the heirs, to file the necessary papers to complete the same: Provided, That the entry in such cases shall be made in favor of "the heirs" of the deceased pre-emptor; and a patent thereon shall cause the title to inure to said heirs, as if their names had been specially mentioned. 91. Every settler on section sixteen, reserved for the use of schools, or on other reserves or land covered by private claims of others, which was not surveyed at the time served lands, &c, of such settlement, and who shall otherwise come within the provisions of the several may enter others. pre-emption laws in force at the time of the settlement, upon proof thereof before the register of the proper land office, shall be entitled to enter, at the minimum price, any other quarter-section, or fractional section or fractional quarter-section, in the land district in which such school section or reserve or private claim may lie, so as not to exceed one hundred and sixty acres, not reserved from sale, or in the occupancy of any (a) United States v. Stanley, 6 McLean, 409. (b) See infra, 03; and 4 Opin. 493. actual bonâ fide settler: Provided, Such settlement was made before the date of the act 3 March 1843. of 4th September 1841, and after the extinguishment of the Indian title. 92. Where an individual has filed, under the late pre-emption law, his declaration of intention to claim the benefits of said law for one tract of land, it shall not be lawful for the same individual at any future time, to file a second declaration for another tract. Ibid. 24. Second claim not to be received. Ibid. 25. 93. Claimants under the late pre-emption law, for land not yet proclaimed for sale, are required to make known their claims, in writing, to the register of the proper land office, Claimants to within three months from the date of this act when the settlement has been already made, make known their claims with and within three months from the time of the settlement when such settlement shall in three months hereafter be made, giving the designation of the tract, and the time of settlement; otherwise his claim to be forfeited, and the tract awarded to the next settler, in the order of time, on the same tract of land, who shall have given such notice, and otherwise complied with the conditions of the law. Ibid. 26. cy in the office of 94. Whenever the vacancy of the office either of register or receiver, or of both, shall render it impossible for the claimant to comply with any requisition of any of the pre- Not to be preemption laws within the appointed time, such vacancy shall not operate to the detriment judiced by vacan of the party claiming, in respect to any matter essential to the establishment of his register or reclaim: Provided, That such requisition is complied with, within the same period after the disability is removed, as would have been allowed him had such disability not existed. ceiver. tween tracts. 95. Where a settler on the public lands may reside on a quarter-section, a fractional Ibid. 27. quarter-section, or a fraction of a section less than one hundred and sixty acres, and When settlers to cultivated land on any other and different tract of either of the descriptions aforesaid, he have choice beor she shall be entitled, under the act of June 22, 1838, to the same privileges of a choice between two legal subdivisions of each, so as to include his or her house and farm, not to exceed one hundred and sixty acres in all, as is granted, by the first section of that act, to settlers residing on a quarter-section, and cultivating on another and different quarter. Ibid. 28. more persons 96. Where two or more persons are residing on any of the species of tracts specified in section seven of this act, as required by the acts of the 22d of June 1838, and 1st of Proceedings June 1840, and any one or more of said settlers may have cultivated land during the where two or period of residence required by either of said acts, on another and different tract, or have settled on other and different tracts, the latter-mentioned settlers shall be entitled to the option of the same tracts. entering the tract lived on, jointly with the other or others, or of abandoning the tract lived on to those who have not cultivated land as above required, and entering the tract or tracts cultivated, so as not to exceed one hundred and sixty acres to any one settler, who, by virtue of this section, is entitled to a separate entry; or such joint settlers may jointly enter the tract so jointly occupied by them, and in addition enter other contiguous unoccupied lands, by legal subdivisions, so as not to exceed one hundred and sixty acres in all to each of such joint settlers: Provided, That the extended privileges granted to pre-emptors by this act, shall not be construed to deprive any other actual settler of his or her previous and paramount right of pre-emption, or to extend to lands reserved for any purpose whatever. surveyed lands to tain cases. 97. All persons coming within the 10th section of the act of the 4th of September Ibid. 89. 1841, entitled "An act to appropriate the proceeds of the sales of the public lands, and Settlers on unto grant pre-emption rights," shall be entitled to the right of pre-emption under its pro-be entitled to previsions, notwithstanding such persons claiming the pre-emption shall have settled upon emption, in cerand improved the lands claimed before the same were surveyed: Provided, Such settlements were made before the date of the aforesaid act, and after the extinguishment of the Indian title. And said act shall not be so construed as to preclude any person who may have filed a notice of intention to claim any tract of land by pre-emption under said act, from the right allowed by law to others to purchase the same by private entry after the expiration of the right of pre-emption. 5 Stat. 657. How lands occu 98. Whenever any portion of the surveyed public lands has been or shall be settled 23 May 1844 1. upon and occupied as a town site, (a) and therefore not subject to entry under the existing pre-emption laws, it shall be lawful, in case such town or place shall be incorporated, pied as town for the corporate authorities thereof, and if not incorporated, for the judges of the county sites, may be entered, for the court for the county in which such town may be situated, to enter at the proper land benefit of those office, and at the minimum price, the land so settled and occupied, in trust, for the entitled to preseveral use and benefit of the occupants thereof, according to their respective interests; (b) the execution of which trust, as to the disposal of the lots in such town, and the proceeds of the sales thereof, to be conducted under such rules and regulations as may be prescribed by the legislative authority of the state or territory in which the same is situ (a) Extended to the settlement of Mendota, within the military reserve, at St. Peter's river. Minnesota, by act 26 August 1852. 10 Stat. 37. And to New Mexico, Kansas and Nebraska, by act 22 July 1851. 10 Stat. 308. emption. (b) The same rules as to proof of occupation, apply in the cass of municipal, as of agricultural pre-emption. 7 Opin. 733. |