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The same excepting clause is found in the deed from the trustees of said city to the protestant for said lot 7, block 29, and the protest filed by Mr. Turner cannot operate as a bar to the issuance of a patent to Messrs. Lang and Colby.

When patent issues for said mining claim a clause will be inserted therein "excepting and excluding, however, from these presents, all town property rights upon the surface, and there are hereby expressly excepted and excluded from the same all houses, buildings, structures, lots, blocks, streets, alleys, or other municipal improvements on the surface of the above-described premises not belonging to the grantees herein, and all rights necessary or proper to the occupation, possession, and enjoyment of the same."

You will inform all parties in interest, and acknowledge the receipt hereof.

Before Messrs. Lang and Colby can be permitted to make entry of said claim as surveyed, it will be necessary for them to submit satisfactory evidence showing that the premises described in said application are the same as those originally located by C. E. Lang et al. on the 14th March, 1871.

Very respectfully, your obedient servant,

S. S. BURDETT, Commissioner.

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GENTLEMEN:-It has been represented to this office that parties endeavor to speculate in the Osage Lands by making claims, then selling out and taking others.

It is also represented that during the temporary absence of bona fide settlers, either for the purpose of bringing their families, or while engaged in their calling of herdsmen, their claims are "jumped" by other parties, &c.

With a view to protect the interests and rights of bona fide claimants, you will therefore, 1st. Require of all parties an affidavit when filing that they have not, since the passage of the act of 15 July, 1870, for the disposal of said lands, sold their rights to, or voluntarily abandoned any tract of said Osage Lands, or settled upon, improved, or filed for any other tract of said lands, than the one designated in said filing; this affidavit you will also require when proof is made. 2d. Where in contests between adverse claimants, it is shown by the first settler that he had made a bona fide settlement, and that an absence from the claim was due to the reasons herein alluded to, you will give him the preference, provided he has in other respects complied with the requirements of our former instructions, giving, of course, to the adverse claimant the right of appeal from your action to this office. Very respectfully,

See No. 27.

No. 556.

WILLIS DRUMMOND, Commissioner.

SARAH P. NOBLE.

Osage Ceded Lands: She settled after ratification of the treaty. She cannot claim as a pre-emptor before the passage of the Joint Resolution of April 10, 1869, because the treaty forbids all homestead and pre-emption settlements. She cannot claim under the Joint Resolution, because it saves all vested rights, and the rights of the railroads had vested prior to its passage.

DEPARTMENT OF THE INTERIOR, Washington, D. C., 23d Feb, 1872. SIR: I have considered the application of Mrs. Sarah P. Noble to enter, under the Joint Resolution of April 10th, 1869, (16 Stat., 53, Part II., No. 5,) the S. W. of S. W. of Section 9, the N. W. of N. W. of Section 16, and the N. of N. E. Section 17, T. 28 S., R. 18 E., Osage Ceded Lands, Humboldt, Kansas.

The land in Section 16 is claimed adversely by the State as school

land, and in Sections 9 and 17 by the M. K. and T., and L. L. and G. R. R. Companies.

From your decision of April 10, 1871, awarding all the land to Mrs. Noble, the M. K. and T. R. R. Company take an appeal as to that portion of the land claimed by them. The other parties have not appealed. The land was surveyed May 9, 1867; the line of the railroad definitely located Jan. 7, 1868, and the withdrawal for railroad purposes made Feb. 4, 1868.

The evidence shows that Sarah P. Noble is the widow of Edward P. Noble, who died the latter part of April, 1868; that Mr. Noble settled upon the land in July, 1866, broke five acres, got out some logs for a house, and hauled some rails on the land; that from July, 1866, to the summer of 1867, he did not reside on the land; that in the summer of 1867 he broke ten acres more, cultivated fifteen acres in all, and lived during the fall in a tent on the land and gathered his crop; that in February, 1868, he built a house, and in April following moved into it with his family; that a few days thereafter he was taken sick and was removed from the land to Humboldt, where he was shortly followed by his wife, and where he died the latter part of the same month; that some time after his death Mrs. Noble returned to the land and, with the assistance of her brother, broke ten acres more, and fenced and cultivated in all thirty acres; that in the fore part of December, 1868, and while Mrs. Noble was absent from the land in Humboldt, her brother removed the house to his claim adjoining, and has since then used it as a stable; that she was not able to have a house built to replace the old one removed until December, 1869, when she had a new one built, and Jan. 3d, 1870, moved into it, and has resided there to time of trial, April 28, 1870; that in the interval between the removal of the old house and the moving into the new one she resided most of the time with her brother on land adjoining the disputed tract.

Mr. Noble had not settled on the land at the date of the treaty of Sep. 29, 1865, ceding the lands to the United States (14 Stat., 687,) and be is therefore not covered by the IV. article, which grants the privilege of purchasing a quarter section to qualified parties, who had settled at that date.

The land cannot be claimed as a pre-emption or a homestead, for such claims are expressly inhibited by the I. Article of the treaty.

The only possible claim to the land in this case, must be under the Joint Resolution of April, 1869. (16 Stat., 55.) This provides "That any bona fide settler residing upon any portion of the Osage ceded or trust land, who is a citizen of United States, shall be, and hereby is, entitled to purchase the same in quantity not exceeding one hundred and sixty acres, at the price of one dollar and twenty-five cents per acre, within two years from the passage of this act, under such rules and regulations as may be prescribed by the Secretary of the Interior: Provided, however, That both the odd and even numbered sections of said lands shall be subject to settlement and sale as above provided: And provided further, That the sixteenth and thirty-sixth sections in each township of said lands shail be reserved for state school purposes, in accordance with the provisions of the act of admission of the State of Kansas: Provided, however, That nothing in this act shall be construed in any manner affecting any legal rights heretofore vested in any other party or parties."

Mr. Noble died long before the passage of the Resolution, and his widow who claims to succeed to his right was not residing on the land for at least four months preceding, nor for nine months following the passage of the Resolution. She does not bring herself within the terms of the Resolution; but if she did, and possessed the other necessary qualifications, her claim to the land in odd-numbered sections would be defeated by the last proviso in the Resolution, which saves all vested legal rights. The right to sections 9 and 17 had vested in the Railroad by the definite location of its road and withdrawal prior to that date. See cases of Pine and Wood, decided January 26th, 1872.

At the time of this definite location and withdrawal, Mrs Noble was holding this land without authority of law.

She had no claim as a pre-emptor under the treaty, because the treaty expressly prohibited all such claims. She had no claim to the odd sections under the Resolution, because it saved all vested rights, and the rights of the railroad had vested prior to its passage.

She had no claim to the forty-acre tract in section 16, because the treaty prohibited all pre-emption rights, and the Resolution excluded sections 16 and 36 from its operation.

I reverse your decision, and decide that the railroad is entitled to those portions of sections 9 and 17 in controversy, and the State to the N. W. of the N. W. of section 16.

The papers transmitted with your letter of August 9, 1871, are herewith returned.

Very respectfully, your obedient servant,

C. DELANO, Secretary.

HON. WILLIS DRUMMOND, Commissioner General Land-Office.

No. 557.

SARAH P. NOBLE.-(EXPLANATORY.)

The decision in the Sarah P. Noble case does not apply to cases where patents had been issued and delivered prior to its rendition. It was intended to be prospective in its operation, and to apply to those cases only where patents had not been issued and delivered.

DEPARTMENT OF THE INTERIOR,

Washington, D. C., 10th August, 1872. SIR: In answer to the inquiry contained in your letter of the 4th instant, I have to state that the decision of the Department, on the 23d February last, in the Sarah P. Noble case, was not intended to apply to cases where patents had been issued and delivered prior to its rendition. It never has been so applied, and never will be while I am charged with the duty now devolving on me.

It was intended to be prospective in its operation, and to apply to those cases only where patents had not been issued and delivered. Patents for these ceded lands issued and delivered in accordance with former rulings of the Department, will not be disturbed.

I am,

sir,

Very respectfully, your obedient servant,

W. H. SMITH, Acting Secretary.

T. C. JONES, Esq., New Chicago, Kansas.

No. 558.

PINE AND WOOD.

These parties, one under the homestead and the other under the preemption law, seek to appropriate certain Osage ceded lands in Kansas. They both settled and asked to make their filings after the passage of the joint resolution of April 10, 1869.

Held-That the treaty of July 21, 1867, (14 Stat., 687,) prohibited pre-emption and homestead settlements, and thereby operated as a repeal of the homestead and pre-emption acts, as to the Osage ceded lands. A treaty with an Indian tribe is entitled to as much consideration as a treaty with an independent nation, (Turner v. Am. Miss. Society, 5 McLean, 349,) and is as binding as an act of Congress, (U. S. v. Schooner Peggy, 1 Cranch, 110. Lodigee v. Roland, 2 How., 581. U. S. v. Brooks, 10 How., 460. Fellows v. Blacksmith, 19 How., 372. Joy v. Holden, Circuit Court of Kansas, 3 Opins. Attorney General, 56, 366. 6 Do., 291, 658. 9 Do., 25. 10 Do., 508. 11 Do., 145. Foster v. Neilson, 2 Pet., 314. Cherokee Tobacco, 11 Wall., 621.) This prohibition was not removed by subsequent legislation. These parties did not reside on the land at the date of the joint resolution nor within two years thereafter, and are not therefore within its provisions. The 12th Sec., act of July 15, 1870, did not apply to the ceded lands. These claimants are not entitled to the land. Are the railroads? They claim under the acts of March 3, 1863, (12 Stat., 772,) and July 28, 1866. (14 Stat., 370.) It is conceded that the enacting clause does make a grant, but it is claimed that the provisos take the lands out. For rule of construction see Thornhill v. Hall, 2 Clark and Finley, 36, and United States v. Dickson, 15 Pet., 165. The grant is a float until location is made. How., 59. R. R. Co. v. Fremont, 9 Wall., 94. Congress authorized this and like treaties, 12 Stat., 793, Sec. 4. It ratified the 1st Sec. of the treaty by the act of September 29, 1865. (14 Stat., 261.) It ratified the grant by the act of April 19, 1871. Held-That there was a grant to each railroad. Secretary's decision, dated January 26, 1872.

Lessiur v. Price, 12

No. 559.

HARRIS v. HON.

Land in Osage district, Kansas, claimed under resolution of April 10, 1869. (16 Stat., 55.)

Hon filed on 160 acres. Afterwards amended his filing so as to reject one 40 and include another.

This he did before any adverse right had accrued.

Held-That his action was proper.

Secretary's decision, dated December 6, 1872.

No. 560.

J. W. FALLS.

Under Joint Resolution of April 10, 1869, applicant for Osage Trust Lands must file his D. S. as in other cases. If he fails so to do, and an adverse claim attaches before filing, the applicant loses the land.

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