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TITLE XII-OREGON DONATION CLAIMS.
WOODWARD ET AL., V. STRICKLER.
Donation claim under the act of September 27, 1850, (9 Stat., 497,) for Oregon Territory.
Held-That Strickler's heirs were entitled to purchase the land at $1.25 per acre.
DEPARTMENT OF JUSTICE,
OFFICE OF ASSISTANT ATTORNEY GENERAL,
SIR: I have considered the case of John A. Woodward and H. H. Edwards, homestead claimants, v. The Heirs-at-law of Wm. A. Strickler, deceased, donation claimant.
The land in controversy is the E. of S. E.
Section 13, T. 25 N.,
R. 3 E., and W. of S. W. 1, and Lot 3 of Section 18, T. 25 N., R. 4 E., Olympia, Washington Territory.
The local officers differed in opinion, the Register deciding in favor of the donation claimants, holding that they should be allowed to commute their donation claim and purchase the land at $1.25 per acre, and the Receiver deciding in favor of the homestead claimants.
The Commissioner decided in favor of the heirs of Strickler, and granted them the land as a donation.
Woodward and Edwards have appealed to the Secretary.
Strickler became a resident of the Territory of Oregon in November, 1850, and went upon the land March 1, 1854. April 7, 1855, he filed notification alleging residence and cultivation from date of settlement to date of filing, which allegation is supported by the affidavits of four disinterested witnesses. He claims the land under the donation act of September 27, 1850, and its amendments.
Shortly after this he was forced to leave his claim by danger from Indian hostilities, which made it unsafe for him to return till the fall of 1857 or spring of 1858.
The land was unsurveyed at the time he filed upon it. After survey, and on the 16th of June, 1857, he amended his notification so as to make the boundaries of his claim correspond to the lines of the government survey.
April, 1856, he was appointed Register of the Land-Office at Olympia, and continued in that position until December 28, 1858. Whether he then returned to his claim or not, is involved in doubt.
A letter from Hon. S. Garfielde, who was Receiver of the Land-Office at Olympia at the same time Strickler was Register, states that he (Strickler) "frequently asserted his intention to return to his claim as soon as it was safe from Indians, but his loss of mind prevented the execution of his purpose."
Before leaving this position his mind became so much affected that he was unable to transact any business, and was obliged to employ a clerk, who performed all his official duties.
His malady increased until in 1859 he wandered off, and has not since been heard of.
Aug. 27, 1868, Henry L. Gessler, on the presumption of Strickler's death, took out letters of administration on his estate, and January 11, 1869, made application to the Land-Office for a patent to the land.
January 2, 1869, Woodward and Edwards made homestead filings covering the tracts in controversy.
Strickler's residence up to June 1, 1854, was in a house that was included in the boundaries of his original notification, but left out of his amended filing. After June 1, 1854, he lived in the one-half of a double house, standing half on his claim and half on the neighboring claim of one Ross.
This house was two stories, had a partition running through the centre of it on the line of the boundary between the claims, and had an entrance on each claim.
During the early part of his settlement he was engaged in partnership with H. L. Gessler and John Ross in erecting a saw mill and dam, but the project was abandoned on account of the decline in the price of lumber.
The fourth section of the Act of September 27th, 1850, 9 Stat., 497, provides that there shall be granted to every citizen of the United States, above the age of eighteen years, who shall become a resident of the Territory of Oregon, (now Washington,) before the first day of December, 1850, and who shall have resided upon and cultivated the same for four consecutive years, the quantity of three hundred and twenty acres of land, if a single man. And that where a party shall have died before patent issues, the children or heirs of the deceased shall be entitled to the interest of the deceased in equal proportions, except where the deceased shall otherwise dispose of it by testament duly and properly executed.
The Act of February 14, 1853, 10 Stat., 158, provides that settlers shall, in lieu of the term of continued occupation after settlement, be permitted, after occupation for two years, to pay for the land at the rate of one dollar and twenty-five cents per acre.
The Act of July 17, 1854, 10 Stat., 305, reduces the necessary time of occupancy before purchase to one year.
Strickler's actual occupancy of the land from March 1, 1854, to April 7, 1855, and constructive occupancy from that time till the middle of February, 1858, and during the danger from Indian hostilities, makes a period of a little less than four years. Had he then returned to the land he might possibly have been able to perfect his claim to it as a donation. This he did not do. He had been appointed Register of the Land-Office at Olympia, in April, 1856, and continued to act in that capacity up to December 28, 1858. The time he was in this position after the danger from Indian hostilities was over cannot be construed to be occupation of his claim, or allowed to his credit on the necessary four years occupancy. The fact of his residing on and cultivating the land for more than one year is well established, and were he living he would be entitled to purchase it, under the amendatory acts of 1853 and 1854, at the rate of $1.25 per acre. Being dead, his heirs succeed to his interest by the express provisions of the fourth Section of the act of 1850.
I therefore recommend that the Commissioner's decision be modified so as to allow the heirs of Mr. Strickler to purchase the land at $1.25 per acre, upon complying with the requirements of the donation laws. Very respectfully,
W. H. SMITH, Assistant Attorney General. HON. C. DELANO, Secretary of Interior.
Concurred in by the Secretary, Nov. 14, 1871.
DAVID S. MAYNARD.
Donation Claim under the act of 1850, September 27th.
Held-That a wife who had been divorced before the four years of cultivation had expired was not entitled, and that a wife who had been married after December 1, 1850, was not entitled.
Decision by the Secretary, March 1, 1873.
WARWICK AND DAVIS.
Entries under the donation acts prima facie regular and valid cannot be set aside on the allegation of fraud, made by third parties, who had no interest in the land prior to the entries.
The donation act approved February 14, 1853, does not limit entries under it to surveyed land.
DEPARTMENT OF THE INTERIOR,
Washington, D. C., May 29, 1874. SIR-I have examined the appeals of Wilkins Warwick and A. J. Davis from your decision of July 5, 1873, cancelling their respective entries made under the donation act of September 27, 1850, and the several acts amendatory thereof, for certain lands in T. 25 S., R. 13 W., Oregon.
The facts in these cases are correctly recited in your decision, from which it appears that the claimants fully complied with all the requirements of the donation act, made final proof, entered the land claimed, and paid for the same prior to October, 1856. The present contests were initiated during the years 1869 and 1870, at the instance of certain persons who, by ex parte evidence filed upon appeal, appear to be interested in a certain town site recently located upon the lands in question. At the date named these parties appeared before the local officers and alleged substantially and in legal effect, fraud in the original entries. Notice of trial was given by publication, the citation setting forth that the charge was one of abandonment." No appearance being entered
by the defendants, the local officers decided that the entries should be cancelled. The claimants appealed to your office, and were there represented by counsel. They are now so represented before the Department, and it is stated on their behalf in argument that shortly after his entry Warwick sold the land entered by him to Davis, and that thereafter, and subsequently to his own entry, Davis removed from Oregon, and has since his removal been a resident of Helena, Montana.
It is evident, from a consideration of the facts recited, that these cases are of that class whose entries, prima facie regular and valid, are sought to be set aside on the ground of fraud, by third parties alleging and claiming no prior interest in the land. The Department has re
peatedly held that proceedings of this character cannot be maintained, and I apply the well-settled rule to this case.
The controversy, as presented upon appeal, and as apparently prosented to your office, however, raises a single question of law, relating to the construction of the first section of the act of Congress approved February 14, 1853, (10 Stat., 158,) under which these entries were made. It is admitted that at the date of the entry the lands were unsurveyed, and it is claimed, and so held by your office, that the act limits entries under it to surveyed lands.
I am unable to agree with you in this construction. The language used is somewhat ambiguous, but it is undoubtedly susceptible of a construction to include unsurveyed land, and such a construction seems to be in strict conformity with the spirit of the act and the objects intended to be accomplished by its passage. The construction adopted is extremely technical, and I think contrary to the policy of the act, which was a benevolent statute, and as such has received in all adjudicated cases arising under it an exceptionally liberal interpretation. (Stark v. Stair, 6 Wall., 402; Silver v. Ladd, 7 Wall., 219.) Under these circumstances, more especially in view of the principles enunciated by the Supreme Court in the cases cited, I am constrained to adopt a more liberal construction than the one followed by you, and I accordingly decide upon the merits of the case that the entries in question were valid, limiting that of Warwick to 160 acres, and should be passed to patent with the above limitation.
Your decision is reversed, and the papers transmitted with your letter of November 19, 1873, are herewith returned.
C. DELANO, Secretary HON. W. W. CURTIS, Acting Commissioner General Land-Office.
ROMAN CATHOLIC MISSION OF ST. JAMES.
Claim under act of August 14, 1848 (9 Stat. 323) for 640 acres of land, Washington territory.
Held-That the Commissioner of the General Land-Office has jurisdiction to hear and determine these Mission Claims. This overrules the opinion of Atty-Genl. Bates, (11 Op. 47,) and is sustained by the present Atty-Genl. Williams. See his letter in this case.
That the act gave an immediate vested right.
That only the land actually occupied and shown with reasonable certainty to have specific boundaries passed under the act. There must be such an assertion of claim as would be notice to any other persons attempting to gain possession; such as a marking out of the claim by stakes or blazed trees, &c.
Decision by Acting Secretary Cowen, May 10, 1872.
TITLE XIII.-SUSPENDED ENTRIES.
BARNARD WARDEN, Et al.
These parties made homestead entries in good faith, but failed to make final proof within seven years.
No adverse claims; one was sick, one lame, one had lost his receipt, &c. Several were ignorant of the law.
Held-That these were cases of ignorance, accident and mistake, and that the proofs should be received under the acts of August 3, 1846, (9 Stat. 51,) and June 26, 1856, (11 Stat. 22,) and referred to the Board consisting of the Secretary of Interior, Attorney-General and Commissioner of the General Land-Office.
DEPARTMENT OF JUSTICE,
OFFICE OF ASSISTANT ATTORNEY GENERAL,
WASHINGTON, May 15, 1871.
SIR-I have considered the matter relating to the homestead entries of Barnard Warden and others, referred to you by the Commissioner of the General Land-Office by his letter of the 24th of February, 1871.
It appears that the parties have severally made homestead entries in good faith, and have in all respects complied with the law, except that they have failed to make final proof within seven years from the date of their respective entries.
There are no adverse claims. A majority of the parties give ignorance of the law as an excuse for not making the proof within the time. One was sick, one was lame, one had lost his receipt, one lived at a great distance from the land-office, and one made a mistake in estimating the time that had elapsed.
By the act of August 3, 1846, (9 Stat. 51,) it was Provided, "That the Commissioner of the General Land-Office be, and is hereby authorized and empowered, to determine upon principles of equity and jus tice as recognized in the courts of equity; and in accordance with the general rules and regulations to be settled by the Secretary of the Treasury, the Attorney General and Commissioner conjointly, consistently with such principles, all cases of suspended entries now existing in said land-office, and to adjudge in what cases patents shall issue upon the same:
"Provided, however, That such adjudications shall be made within two years from the passage of this act, and be first approved by the Secretary of the Treasury and the Attorney General, and shall operate to divest the United States of the title of the land embraced by such entries, without prejudice to the rights of conflicting claimants."
It was further provided that patents should issue in all cases that were confirmed by the board. Afterwards, and on the 26th of June, 1856, the following act was passed: "Be it enacted, etc., That the several provisions of the act approved March third, eighteen hundred and fifty-three, in relation to suspended entries of public lands, and the