« ForrigeFortsett »
ter. She now claims that his entry was void. It was made after a hearing, and by the proper officers. Whether they erred in their construction of the law is a question that will more properly arise on the hearing of the case now pending, and about which I express no opinion. I am clear that the most that can possibly be urged against the entry, is that it was irregular and voidable, and not void.
I am of opinion that the State has no interest in this land, and that she ought not to be made a party to the contest, and I advise that the decision of the Commissioner be affirmed.
W. H. SMITH, Asst. Atty. General. HON. C. DELANO, Secretary of the Interior. Concurred in by the Secretary, Nov. 2, 1871.
BIRD ET AL. v. STATE OF CALIFORNIA.
This case involves the question as to what was a proper presentation of a claim at the local office.
Held-That a presentation at the office before business hours and in the absence of the officer was not a due presentation.
In all cases power of guardianship or attorney must be presented by parties desiring to locate Sioux Half Breed Scrip.
Advises that a certificate issue to the State for the lands, reciting that a patent had wrongfully and inadvertently issued to other parties.
DEPARTMENT OF JUSTICE,
OFFICE OF ASSISTANT ATTORNEY GENERAL,
Washington, D. C., May 24th, 1871. SIR-I have considered the appeal case of Joseph Bird et al. v. The State of California, involving claim to the south half of Section 26, and the northeast quarter of Section 34, of Tp. 8 S., R. 4 W., in the San Francisco District of California. Originally the controversy included the north-west quarter of Section 35 in said Township, but there is now no question about the last named tract, as the State has selected other lands in its stead and the selection has been duly approved.
The facts are as follows: The State applied on the 23d of July, 1867, to select the first two tracts as indemnity selections for other lands, (school sections) to which she was entitled, but which were found to be included in private land grants. (Sec. 6, act July 23, 1866, 14 Stat., 220.)
At the date of application the lands were withdrawn for railroad purposes, and were on that account not subject to such selection. They were restored to market, October 19, 1868. On that day there was a sharp contest on the part of the agent for Bird and others on the one side, and the agent of the State on the other, to see which should succeed in obtaining these lands. Sometime between 8 and 8 a. m., of that day, C. Gurnee, an attorney-at-law, appeared at the local land-office with certain Scrip certificates issued to the half-breed Sioux Indians under the act of July 17th, 1854, (10 Stat., 304,) and with a letter from Wm. S. Chapman, an attorney-at-law, asking that these certificates might be located on the lands in controversy. There was no power of attorney or other authority to Chapman from the persons named in the Scrip to locate the Scrip for them. There was no officer of the landoffice present: no one there but a young man who notified Mr. Gur
nee that he had no authority to receive or file any papers in the landoffice. Thereupon Mr. Gurnee left the papers on the table, and he himself left the land-office.
About 8 A. M., the agent of the State appeared at the land-office. Mr. Shanklin, the Register, was then there. The State agent had with him a list of re-applications from the State Survey or General for these lands, and asked that they be duly filed in the land office. The Register received the list and filed the same, and marked thereon the time of filing, "October 19, 1868, at 8.30 A. M." This brought on a contest before the local officers. There were other parties who had filed for the land under the pre-emption laws, but though summoned, they made default, and did not appear or set up any claim to the land. The Register and Receiver, after hearing the proofs, rejected the Scrip locations for lack of evidence that they were made by a duly authorized party. They also rejected the application for the south half of Section 26, for want of evidence that the School Sections, in lieu of which it was made, had been included in private grants. The defective evidence was afterward supplied by both parties.
The Scrip locations were, pursuant to general instructions, forwarded to the General Land-Office, soon after they were made. An abandondonment by the pre-emptors of all claim to the lands was filed in the General Land-Office, and on the 3d of June, 1869, counsel for the Scrip claimants obtained an approval of the location of the Scrip, and on the 15th of June, 1869, patents were issued and delivered to such counsel. At the time these patents were issued, the contest was pending before the Register and Receiver, and undecided by them.
As soon as the General Land-Office was advised of this fact, it requested the attorney for the Scrip claimants to return the patents. He refused to do so, and alleged that the lands had been sold.
The Commissioner of the General Land-Office, upon this state of facts, gave his decision in favor of the Scrip claimants. It is now alleged that he erred in so doing.
The act of July 17, 1854, provided "That no transfer or conveyance of any of said certificates or scrip shall be valid." The instructions of the Commissioner of the General Land-Office, in relation to this Scrip, provided "That the scrip may be located by the reservee in person, or by his or her guardian or duly authorized agent. In all cases the power of guardianship or attorney must be presented with the scrip and application to locate the same; and if on examination the papers are found defective, you will refuse to make said location until they are perfected." If, therefore, under the law and these instructions, Mr. Gurnee had duly presented the Scrip to the local officers, and demanded its location upon these lands, in the absence of a power of attorney or other authority to locate the same, it would have been their official duty to have rejected the application and refused to make the location. But Mr. Gurnee did not duly present the Scrip. A presentation at the local office, in the absence of the local officer, and especially at the time this was done, before the usual hours for business, was no legal presentation. The officer was under no obligation to take any official notice of a package of papers found upon his table in the manner these were found. Mr. Gurnee was not misled.
It appears that the young man in the office notified him that he had no authority to receive or file the papers. Mr. Gurnee, if he desired to obtain priority over others, as he doubtless did, should have seen to
it that the papers were presented to the proper officer, and demand made of him. This he did not do. The agent of the State did, and I am of opinion that the State thereby became entitled to the lands. I advise reversal of the decision of the Commissioner, and in view of the fact that patents have already issued inadvertently on the part of the General Land-Office, and under a misapprehension of the facts, I advise that a certificate of approval of the selection be issued to the State. Such certificate should recite the issuing of the patents, and the facts in relation thereto.
WALTER H. SMITH, Asst. Atty. General.
HON. C. DELANO, Secretary of the Interior.
STATE OF CALIFORNIA v. PIKE ET AL.
Location of School Warrants. The location was made by the agent of the State after the expiration of his term.
Held-That he was agent de facto, and that his acts were binding, and could not be collaterally impeached by a stranger to the transaction.
Decision by Acting Secretary Cowen, Sept. 26, 1871.
JOHN G. BROWN.
A selection was made by the State of California under the 8th sec. of the act of Sept. 4, 1841, on land withdrawn for railroads. July 5, 1870, the Surveyor General telegraphed to Register to refile applications, and he did, indorsing on the back of the original applications "refiled July 5, 1870."
Held-That this was not a good selection.
Decision by the Secretary, Sept. 18, 1872.
II. ACT OF JULY 23, 1866, WITH INSTRUCTIONS AND RULINGS THEREUNDER.
CHAP. CCXIX.—An Act to quiet Land Titles in California.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That in all cases where the State of California has heretofore made selections of any portion of the public domain in part satisfaction of any grant made to said State by any act of Congress, and has disposed of the same to purchasers in good faith under her laws, the lands so selected shall be, and hereby are, confirmed to said State: Provided, That no selection made by said State contrary to existing laws shall be confirmed by this act for lands. to which any adverse pre-emption, homestead, or other right has, at the date of the passage of this act, been acquired by any settler under
the laws of the United States, or to any lands which have been reserved for naval, military, or Indian purposes by the United States, or to any mineral land, or to any land held or claimed under any valid Mexican or Spanish grant, or to any land which, at the time of the passage of this act, was included within the limits of any city, town, or village, or within the county of San Francisco: And provided further, That the State of California shall not receive under this act a greater quantity of land for school or improvement purposes than she is entitled to by law. SEC. 2. And be it further enacted, That where the selections named in section one of this act have been made upon land which has been surveyed by authority of the United States, it shall be the duty of the proper authorities of the State, where the same has not already been done, to notify the register of the United States land-office for the district in which the land is located of such selection, which notice shall be regarded as the date of the State selection, and the Commissioner of the General Land-Office shall, immediately after the passage of this act, instruct the several local registers to forward to the General Land-Office, after investigation and decision, all such selections, which, if found to be in accordance with section one of this act, the Commissioner shall certify over to the State in the usual manner.
SEC. 3. And be it further enacted, That where the selections named in section one of this act have been made from lands which have not been surveyed by authority of the United States, but which selections have been surveyed by authority of and under the laws of said State, and the land sold to purchasers in good faith under the laws of the State, such selections shall, from the date of the passage of this act, when marked off and designated in the field, have the same force and effect as pre-emption rights of a settler upon unsurveyed public land; and if, upon survey of such lands by the United States, the lines of the two surveys shall be found not to agree, the selection shall be so changed as to include those legal subdivisions which nearest conform to the identical land included in the State survey and selection. Upon the filing with the register of the proper United States land-office of the township plat in which any such selection of unsurveyed land is located, the holder of the State title shall be allowed the same time to present and prove up his purchase and claim under this act as is allowed pre-emptors under existing laws; and if found in accordance with section one of this act, the land embraced therein shall be certified over to the State by the Commissioner of the General Land-Office.
SEC. 4. And be it further enacted, That in all cases where township surveys have been, or shall hereafter be, made under authority of the United States, and the plats thereof approved, it shall be the duty of the Commissioner of the General Land-Office to certify over to the State of California, as swamp and overflowed, all the lands represented as such upon such approved plats, within one year from the passage of this act, or within one year from the return and approval of such township plats. The Commissioner shall direct the United States Surveyor-General for the State of California to examine the segregation maps and surveys of the swamp and overflowed lands made by said State; and where he shall find them to conform to the system of surveys adopted by the United States, he shall construct and approve township plats accordingly, and forward to the General Land-Office for approval: Provided, That in segregating large bodies of land, notoriously and obviously swamp and overflowed, it shall not be necessary to subdivide the same, but to run the
exterior lines of such body of land. In case such State surveys are found not to be in accordance with the system of United States surveys, and in such other townships as no survey has been made by the United States, the Commissioner shall direct the surveyor-general to make segregation surveys, upon application to said surveyor-general by the governor of said State, within one year of such application, of all the swamp and overflowed land in such townships, and to report the same to the General Landoffice, representing and describing what land was swamp and overflowed under the grant, according to the best evidence he can obtain. If the authorities of said State shall claim as swamp and overflowed any land not represented as such upon the map or in the returns of the surveyors, the character of such land at the date of the grant, September twenty-eight, eighteen hundred and fifty, and the right to the same, shall be determined by testimony, to be taken before the surveyor-general, who shall decide the same, subject to the approval of the Commissioner of the General Land-Office.
SEC. 5. And be it further enacted, That it shall be the duty of the Commissioner of the General Land-Office to instruct the officers of the local land-offices and the surveyor-general, immediately after the passage of this act, to forward lists of all selections made by the State referred to in section one of this act, and lists and maps of all swamp and overflowed lands claimed by said State, or surveyed as provided in this act, for final disposition and determination, which final disposition shall be made by the Commissioner of the General Land-Office without delay.
SEC. 6. And be it further enacted, That an act entitled "An act to provide for the survey of the public lands in California, the granting of pre-emption rights therein, and for other purposes," approved March third, one thousand eight hundred and fifty-three, shall be construed as giving the State of California the right to select for school purposes other lands in lieu of such sixteenth and thirty-sixth sections as were settled upon prior to survey, reserved for public uses, covered by grants made under Spanish or Mexican authority, or by other private claims, or where such sections would be so covered if the lines of the public surveys were extended over such lands, which shall be determined whenever township lines have been extended over such land, and in case of Spanish or Mexican grants, when the final survey of such grants shall have been made. The surveyor-general for the State of California shall furnish the State authorities with lists of all such sections so covered, as a basis of selection, such selections to be made from surveyed lands, and within the same land district as the section for which the selection is made.
SEC. 7. And be it further enacted, That where persons in good faith, and for a valuable consideration, have purchased lands of Mexican grantees or assigns, which grants have subsequently been rejected, or where the lands so purchased have been excluded from the final survey of any Mexican grant, and have used, improved, and continued in the actual possession of the same as according to the lines of their original purchase, and where no valid adverse right or title (except of the United States) exists, such purchasers may purchase the same, after having such lands surveyed under existing laws, at the minimum price established by law, upon first making proof of the facts as required in this section, under regulations to be provided by the Commissioner of the General Land-Office, joint entries being admissible by coterminous proprie