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DECISIONS, OPINIONS, AND INSTRUCTIONS.
TITLE I-DISPOSAL OF THE PUBLIC LANDS.
DEPARTMENT OF THE INTERIOR,
Washington, DC, June 17, 1875.
The following is communicated in reference to the manner of acquiring title to the public lands under different laws of Congress :
There are two classes of public lands, the one class at $1.25 per acre, which is designated as minimum, and the other at $2.50 per acre, or double minimum.
Title may be acquired by purchase at public sale, or by ordinary "private entry," and in virtue of the pre-emption, homestead, and timber-culture laws.
BY PURCHASE AT PUBLIC SALE.
1. This may be done where lands are "offered" at public auction to the highest bidder, either pursuant to proclamation by the President or public notice given, in accordance with directions from the General Land-Office.
2. The lands liable to disposal in this manner are those which were offered at public sale, but were not then sold, and which have not since been reserved or otherwise withdrawn from market. In this class of offered and unreserved public lands, the following steps may be taken to acquire title:
[No. 265 is a re-print of the circular of August 30. 1872, with a few verbal changes and several additions consisting of the leading instructions under the soldiers' and sailors' homestead laws, the Indian homestead provisions and the timber-culture act of March 13, 1874, with the requisite references to the Revised Statutes.
It is not deemed necessary to re-publish the circular of August 30, 1872, as its language is given herein with foot-notes where important changes are made by this circular.]
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3. The applicant will present a written application to the register for the district in which the land desired is situated, describing the tract he wishes to purchase, giving its area. Thereupon the register, if the tract is vacant, will so certify to the receiver, stating the price, and the applicant must then pay the amount of the purchase money.
The receiver will then issue his receipt for the money paid, in duplicate, giving to the purchaser a duplicate receipt, and at the close of the month the register and receiver will make returns of the sale to the General Land-Office, from which, when the proceedings are found regular, a patent or complete title will be issued; and on surrender of the duplicate receipt, such patent will be delivered, at the option of the patentee, either by the Commissioner at Washington or by the register at the district land office.
LOCATIONS WITH WARRANTS.
4. Applications must be made as in cash cases, but must be accompanied by a warrant duly assigned as the consideration for the land; yet where the tract is $2.50 per acre, the party, in addition to the surrendered warrant, must pay in cash $1.25 per acre, as the warrant is in satisfaction of only so many acres, at $1.25 per acre, or furnish a warrant of such denomination as will, at the legal value of $1.25 per acre, cover the rated price of the land. For example: a tract of 40 acres of land, held at $2.50 per acre, can be paid for with a warrant calling for 40 acres and the payment of $50 in cash, or by surrendering an 80 acre warrant for the same-the 40 acres to be in full satisfaction for the said location. Or a tract of 80 acres, rated at $2.50 per acre,
can be paid for by the surrender of two eighty-acre warrants. If there is a small excess in the area of the tract over the quantity called for on the face of the warrant in any case, such excess may be paid for in
A duplicate certificate of location will then be furnished the party, to be held until the patent is delivered, as in cases of cash sales.
The following fees are chargeable by the land officers, and the several amounts must be paid at the time of location:
For a 40-acre warrant, 50 cents each to the register and receiver-total, $1.00.
5. This scrip may be used
First. In the location of lands at "private entry," but when so used is only applicable to lands not mineral which may be subject to private entry at $1.25 per acre, yet is restricted to a technical "quarter section" -that is, land embraced by the quarter-section lines indicated on the official plats of survey; or it may be located on a part of a "quartersection," where such part is taken as in full for a quarter; but it cannot be applied to different subdivisions to make an area equivalent to a quarter section. The manner of proceeding to acquire title with this class of paper is the same as in cash and warrant cases, the fees to be paid being the same as on warrants. The location of this scrip at private entry is restricted to three sections in each township of land.
Second. In payment of pre-emption claims, in the same manner and under the same rules and regulations as govern the application to preemptions of military land warrants; this, too, without regard to the limitation as to the quantity located in a township or in any one State. Third. In payment for homesteads commuted under section 2301 of the Revised Statutes of the United States, copy attached.
PRE-EMPTIONS ADMISSIBLE TO THE EXTENT OF ONE QUARTER SECTION, OR ONE HUNDRED AND SIXTY ACRES.
6. These are admitted under sections 2257 to 2288 of the Revised Statutes of the United States, copies of which sections are hereto attached, marked No. 1, upon " offered" and "unoffered" lands, and upon any of the unsurveyed lands belonging to the United States to which the Indian title is extinguished, although in the case of unsurveyed lands no definite proceedings can be had as to the completion of the title until after the surveys shall have been extended and officially returned to the district land office.
The pre-emption privilege is restricted to heads of families, widows, or single men over the age of twenty-one, who are citizens of the United States, or who have declared their intention to become citizens, as required by the naturalization laws. This does not include Indians, except such as have ceased their tribal relations, and been declared citizens by treaties or acts of Congress.
7. The right of pre-emption, formerly extended by act of Congress of March 3, 1853, for one quarter section, or 160 acres, at the price of $2.50 per acre, to the alternate United States or reserved sections along the line of railroads, is continued by the Revised Statutes, sections 2257, 2259, and 2279.
8. Section 2281 thereof protects the rights of settlers on sections along the line of railroads, where settlement existed prior to withdrawal, and in such cases allows the land to be taken by the pre-emptors at $1.25 per acre, but requires that they shall file the proper notices of their claims, and make proof and payment as in other cases.
9. Where the tract is "offered" land, the party must file with the district land office his declaratory statement as to the fact of his settlement within thirty days from the date of said settlement, and within one year from date of settlement must appear before the register and receiver and make proof of his actual residence on, and cultivation of, the tract, and secure the same by paying cash, or locating thereon military bounty land warrants, or agricultural-college scrip, according to law.
10. Where the tract has been surveyed and not offered at public sale, the claimant must file his declaratory statement within three months from date of settlement, and make proof and payment within thirty months after the expiration of the three months allowed for filing his declaratory notice; or in other words, within thirty-three months from date of settlement.
11. Where settlements are made on unsurveyed lands, settlers are required, within three months after the date of the receipt at the district land office of the approved plat of the township embracing their claims, to file their declaratory statement with the register of the proper land office, and thereafter to make proof and payment for the tract within thirty months from the expiration of said three months.
When two or more settlers on unsurveyed land are found upon survey to be residing upon, or to have valuable improvements upon, the same smallest legal subdivision, they may make joint entry of such tract, and separate entries of the residue of their claims. This joint entry may be made in pursuance of contract between the parties, or without it. (Revised Statutes, sec. 2274.)
12. Should the settler in either of the aforesaid cases die before establishing his claim within the period limited by law, the title may be perfected by the executor, administrator, or one of the heirs, by making the requisite proof of settlement and paying for the land; the entry to be made in the name of "the heirs" of the deceased settler; and the patent will be issued accordingly. The legal representatives of the deceased pre-emptor are entitled to make the entry at any time within the period to which the pre-emptor would be entitled if living.
Section 2261 of the Revised Statutes prohibts the second filing of a declaratory statement (a) by any pre-emptor qualified at the date of his first filing where said filing has been in all respects legal. Where the first filing, however, is illegal from any cause, he has the right to make a second and legal filing. (b)
LAWS EXTENDING THE HOMESTEAD PRIVILEGE.
13. The laws extending the homestead privilege, embraced in sections 2289 to 2317 of the Revised Statutes-copies attached, marked No. 2-give to every citizen, and to those who have declared their intention to become citizens, the right to a homestead on surveyed lands. This is conceded to the extent of one quarter section, or 160 acres, or a half quarter section, or 80 acres, the former in cases where the land desired is embraced in the class of lower priced lands held by law at $1.25 per acre, when disposed of to cash purchasers; the latter where it is of the class of higher priced lands held at $2.50 per acre when so disposed of.
14. To obtain homesteads, the party must, in connection with his application, make an affidavit before the register or receiver that he is over the age of twenty-one, or the head of a family; that he is a citizen of the United States, or has declared his intention to become such; and that the entry is made for his exclusive use and benefit, and for actual settlement and cultivation; and must pay the legal fee and that part of the commissions which is payable when the entry is made, as given in tables below.
15. Where the applicant has made actual settlement on the land he desires to enter, but is prevented by reason of bodily infirmity, distance, or other good cause, from personal attendance at the district land office, the affidavit may be made before the clerk of the court for the county within which the land is situated, under section 2294 of the Revised Statutes.(c)
(a) Upon offered lands (circular of August 30, 1872).
(c) 16. The amendatory act of 21st March, 1864, U. S. Statutes, vol. 13, page 35, relaxes the requirements of personal attendance at the district office to persons in the military or naval service where the party's family, or some member, is residing on the land that it is desired to enter, and upon which a bona-fide improvement and cultivation have been made. In such cases the said act of 1864 allows the beneficiary to make the affidavit before
16. On compliance by the party with the foregoing requirements, the receiver will issue his receipt for the fee, and that part of the commissions paid, a duplicate of which he will deliver to the party. The matter will then be entered on the records of the district office, and reported to the General Land-Office.
17. An inceptive right is vested in the settler by such proceedings, and upon faithful observance of the law in regard to settlement and cultivation for the continuous term of five years, and at the expiration of that time, or within two years thereafter, upon proper proof to the satisfaction of the land officers, and payment to the receiver, of that part of the commissions remaining to be paid, as given in tables below, the receiver issuing his receipt therefor, the register will issue his certificate, and make proper returns to this Office as the basis of a patent or complete title for the homestead."
NOTE. The law is specific in requiring final proof to be made within two years after the expiration of the five years.
In making final proof, it is required that the homestead party shall appear in person at the district land office, and there make the affidavit required of him by law in support of his claim. Where, from physical disability, distance, or other good cause, the witnesses of said party cannot attend in person at the district office, their testimony in support of the claim may be taken where they reside, before an officer authorized by law to administer oaths.
Their testimony must state satisfactorily the reason of their inability to attend at the district office; and the credibility and responsibility of the witnesses must be certified by the officiating magistrate, whose official character must be authenticated under seal.
The corroborating testimony thus prepared must be deposited with the register and receiver, and filed with the affidavit of the homestead party, and the decision to the register and receiver indorsed thereon, as a preliminary to the transmission of the same to the General LandOffice.
18. Where a homestead settler dies before the consummation of his claim, the widow, or in case of her death the heirs, may continue the
the officer commanding in the branch of service in which he may be engaged, and the same may be filed, by the wife or other representative of the absentee, with the register, together with the homestead application.
His claim in that case will become effective from the date of filing, provided the required fee and commissions accompany the same; but immediately upon his discharge he must enter upon the land and make it his bona-fide home, as required by the original act of 20th May, 1862. The 25th section of the act of 15th July, 1870, so far modifies the original homestead act as to allow officers, soldiers, and sailors who have served in the Army or Navy of the United States for ninety days during the war of the rebellion, and remained loyal to the Government, to enter 160 acres instead of 80 acres of double minimum lands. In all other respects the requirements of the original and amendatory acts remain in force, actual settlement and cultivation being in no case dispensed with. Special affidavits are required in such cases, Congress has also enacted that any alien of the age of 21 years and upward who has entered or shall enlist in the armies of the United States, and be honorably discharged therefrom, shall not be required to make any declaration of intention to become a citizen of the United States, and may, upon his petition, and on proof of honorable military service, be admitted to full citizenship after not less than one year's residence in the United States. (This was in circular of August 30, 1872.)