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No. 453.

HYATT v. SMITH.

Construction of the 7th sec. of the act of July 23, 1866, to quiet land titles in California.

Held-That land conveyed to tenants in common, and afterward partitioned by parol and occupied and possessed in accordance with such parol partition, was within the terms of said section; that land suited for grazing purposes only and used for grazing, although not actually fenced, was also within the fair meaning of said section. Decision by Acting Secretary Cowen, Dec 19, 1872.

No. 454.

ALEXANDER v. CALIFORNIA & OREGON R. R. CO. Held-That under the 7th sec. of the act of July 23, 1866, (14 Stat., 220,) the party to be entitled to the benefits given by said section must have "used, improved and continued in the actual possession" of the premises claimed, and that constructive possession is not sufficient. Decision by Acting Secretary Cowen, April 13, 1872.

No. 455.

JOHN C. WHITE.

A party purchased from a Mexican grant claimant, receiving a warranty deed to which was attached a condition that if the grant should be rejected the money paid should be returned.

Held-That the party was not a bona fide purchaser, within the meaning of the statute.

Commissioner's decision January 7, 1874, affirmed by the Secretary August 18, 1874.

No. 456.

BASCOM v. DAVIS.

The act of July 23, 1866, is purely remedial, and was intended to secure to bona fide purchasers the land actually in their possession and used and improved.

A claim will not be rejected because the claimant is not in possession of his entire purchase.

DEPARTMENT OF THE INTERIOR, Washington, D. C., Sept. 19th, 1873. SIR: I have examined the case of L. H. Bascom v. Moses Davis, involving title to lot 3, section 11, township 7 south, range 1 west, Mount Diablo meridian, California, on appeal from your decision of Dec. 3, 1872, rejecting the claim of Davis and awarding the land to Bascom. * * * * *

You reject the claim of Davis on the ground that he has not occupied the land "as according to the lines of his original purchase." As it is clearly shown that he has occupied by specific lines a portion of the land purchased, your decision holds substantially that when a purchase has been made in good faith from Mexican grantees or their assigns,

and the title so purchased has been rejected and the land excluded by final survey, the purchaser is not entitled under the act of 1866 to enter such portion of the original purchase as he has actually occupied by specific lines, but is necessarily compelled to show actual possession of the entire purchase, in order to be entitled to any entry. In other words, you hold that the phrase "as according to the lines of the original purchase," cannot be construed so as to include a possession by specific boundaries within the specific boundaries of the original purchase.

In my opinion, this is too strict and technical a construction. The act is purely remedial, and must be liberally construed to give full effect to the intent of Congress, which was evidently to secure to all bona fide purchasers the land actually in their possession and used and improved. Under your construction, a bona fide purchaser for value, who had actually gone into possession of a portion of the land purchased, resided thereon and cultivated and improved it for years, would be without remedy under the act, in case it should appear upon trial that some portion, no matter how small, of his original purchase was not in his actual possession; for it will be remembered that actual possession only is recognized by the act. Thus, if a purchaser, finding a portion of his purchase in the actual adverse occupancy of another, should still take possession of the residue, and use every means to gain possession of the whole, yet if perchance all his efforts failed, and at the date of his application the adverse possession continued, he would be denied, under your construction, the right to enter his actual improvements. So, too, if the purchaser be driven away from any portion of his original purchase by the encroachment of trespassers, he would be without remedy under the act to save what was left to him, for there would be an actual adverse possession within his original lines. It is a notorious fact that in a large majority of cases, where purchases have been made from Mexican grantees or their assigns, purchasers once in possession have been obliged to yield large portions, sometimes nearly their entire claims, to mere tresspassers, who made forcible entries and ejected them. Under your construction, each of such purchasers would be denied the right to enter that portion of his purchase of which he had been able to maintain an actual possession.

Can it be possible that Congress, in a remedial statute that confirmed, by other sections than that under consideration, inchoate and imperfect rights and illegal entries, intended, with reference to this class of claims, to prescribe a rule so rigorous and inequitable? What good reason can be given for following such a rule, save that it is perhaps justified by an extremely technical and strict construction? I know of none. No one is injured by a more liberal construction. The rights of no adverse claimant are prejudiced; the Government receives the usual price for the land, and justice is done to deserving claimants. In the case under consideration, a good reason is shown for the failure of the claimant to occupy the entire tract purchased subsequent to March 1, 1867. On that day Congress passed an act granting to the corporate authorities of the town site of Santa Clara all the right, title, and interest of the United States in and to all lands situated within the corporate limits of said town, subject to all adverse rights and claims. On the 8th and 23d of March, 1867, the then Secretary of the Interior held this act to be an absolute grant of the title of the Government to the authorities of the town, and that all adverse claims of every de

scription must be asserted, if at all, in the courts. The corporate limits of the town embraced all the land included in the original purchase by Davis, except lot 3. This in any case would, in my opinion, excuse his want of possession of the land thus granted subsequent to the date of the act.

I think Congress intended to include such cases as this under consid eration in the remedial provisions of the act of 1866, and I think it adopted language which, although ambiguous, is still susceptible of a construction to carry out such intention.

I therefore reverse your decision, and award lot 3 to Davis; as the claim of Bascom for lot 2 is not contested, and as he is shown to have claimed it in good faith since 1868, I see no good reason why his right thereto should not be recognized, and I accordingly award it to him. The papers transmitted with your letter of May 15, 1873, are herewith returned.

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HON. WILLIS DRUMMOND, Commissioner General Land-Office.

No. 457.

WILSON v. CALIFORNIA & OREGON R. R. CO.

Under the 7th section, the right of purchase acquired by assignees under Mexican grants is alienable and descends to heirs.

DEPARTMENT OF THE INTERIOR,

OFFICE OF ASSISTANT ATTORNEY GENERAL,

Washington, D. C., Feb. 17th, 1873. SIR:-I have examined the case of Sanford E. Wilson v. The California and Oregon Railroad Company, on appeal from the decision of the Commissioner of the General Land-Office, of September 20, 1872.

Wilson claims under the 7th section of the act of July 23d, 1866, showing a purchase subsequent to survey, for a valuable consideration, of certain lands formerly included within the claimed limits of a confirmed Mexican grant, but excluded by final survey. It is admitted that he has used, improved and continued in the actual possession of the same as according to the lines of his original purchase, and also that the possession of his grantor was in all respects in full compliance with the provisions of the act.

The California and Oregon Railroad Company claims under its grant of July 25th, 1866. (14 Stat., 239.) In the case of Musick v. McKillip, decided by you July 21, 1871, in accordance with recommendations in my opinion of July 15th, 1871, it was held that the right to purchase conferred by the 7th section of the act of 1866, was not alienable, and did not descend to heirs. This, I then thought, was the proper construction to be given to the section referred to; but upon careful reexamination of the whole question, and in view of the recent decision of the Supreme Court in Myers v. Croft, (13 Wallace, 291,) I am now of the opinion that a more liberal construction should be adopted. The Supreme Court in the case just mentioned affirms the right of a pre-emption claimant to sell the land at any time subsequent to entry, and declares that, without the special restrictions of the statute, the pre-emption right would also be alienable before entry. I see no material difference in nature or effect between the right of pre-emption conferred

by the act of 1841, and the right of purchase under the act of 1866. Both are preferred rights of purchase, depending upon compliance with certain conditions on the part of the claimant. In the former these conditions are mainly prospective in their contemplated performance; in the latter they are conditions precedent. The Supreme Court holds that in the former the right is alienable, only because of the special restrictions of the statute. No such special restrictions upon alienation are found in the 7th section of the act of 1866.

I am therefore now of the opinion that the right conferred by this section is alienable and descends to the heirs upon the death of the purchaser, and I recommend that this view of the law be adopted in the present and followed in all future similar cases, and that the decision of the Commissioner founded upon the former ruling be reversed. Very respectfully,

W. H. SMITH, Asst. Atty. General.

HON. C. DELANO, Secretary of the Interior.
Concurred in by the Secretary, Feb. 17, 1873.

No. 458.

DIBBLE v. CALIFORNIA & OREGON R. R. CO.

The Secretary says: "Dibble purchased the Spanish title subsequently to the final rejection of the grant by the Supreme Court of the United States, and he is not therefore within the remedial provisions of the 7th section of the act." (Davis v. McClay, Secretary's decision Dec. 15, 1873, to the same effect.)

Decision of the Commissioner of June 5, 1874, affirmed by the Secretary Dec. 24, 1874.

No. 459.

III. SWAMP LANDS.*

Instructions in cases of contested swamp selections.
DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Washington, D. C., January 15, 1874. GENTLEMEN:-In cases of contested swamp selections, a day having been set for trial by the register and receiver, at least thirty days notice thereof should be given to the State authorities, to the county authorities, and to all parties claiming to hold title under the State, so far as they may be known. Personal notice should also be given to occupants of the land who have notified the land officers of their claim, whether under the swamp grant or adverse thereto.

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In their report the register and receiver should show upon whom and in what manner notices have been served. The original notice to the State and county authorities, with acknowledgment of service endorsed thereon, if returned to you, should be attached to each case; if not returned to you, copies of such notices, with the affidavit of some competent person showing that original notice had been deposited, post-paid, in the post-office, and stating the time when thus deposited and to whom addressed, should be attached.

In case of personal notice, if not returned to you with service endorsed thereon, it should be shown by affidavit on whom and the time when such service was made. Notice should also be published in a paper published at the county seat of the county in which the lands in question are situated having the largest circulation in the county. Should no paper be published in the county, the paper having the largest circulation in the county adjoining should be the medium selected for publication of such notice. The lands should be described in the notice by the number of township and range and section. Where a whole section is in controversy, it may be so designated without describing it in its smallest subdivision; so of a half section, a quarter section, or half quarter section, when such subdivision is the subject of investigation; but in every case the exact tract in controversy should be designated in the usual manner of describing lands in conformity with the system of public surveys. In taking testimony no particular form is required, the chief object being to ascertain the true character of the land in smallest legal subdivision, whether swampy or not, or whether or not it is subject to such regular periodical overflow at the planting, growing, or harvesting season as to injure or destroy a crop; its character on the 28th of September, 1850, ascertained if possible; the means of knowledge of the witnesses; if they are familiar with the mode of surveying and marking public lands, or if not, by what means they identify the tract about which they testify; how long they have known the land; what means they have used, if any, to reclaim it, and particularly whether or not the witness is either directly or indirectly interested in the result of the investigation, and such other questions as you may deem necessary to elicit the facts in the case. At the closing of the evidence in each case, you will please transmit the same, (with all the papers thereto appertaining attached,) with your joint opinion, to this Office.

The expenses of the notices and the investigation must be borne by the contestants.

No investigations should be allowed unless authorized by letter from this Office. Very respectfully,

WILLIS DRUMMOND, Commissioner.

REGISTERS AND RECEIVERS.

No. 460.

STATE OF NEBRASKA.

Grants of the public domain are bestowed by special legislation only, and the State of Nebraska has never received a grant of swamp lands. DEPARTMENT OF THE INTERIOR,

GENERAL LAND-OFFICE,

Washington, D. C., Jan. 19, 1874.

HON. R. P. LowE, Washington, D. C.:

SIR-I have to acknowledge receipt of your letter of December 18,

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