DECISIONS RELATING TO THE PUBLIC LANDS. PRIVATE CLAIM-SCRIP-ACT OF JUNE 2, 1858. D. C. HARDEE. The third section of the act of June 2, 1858, authorizes the issuance of scrip only in cases of confirmed private land claims, and requires satisfactory proof of such confirmation. The third section of the act of March 3, 1819, expressly excepts from confirmation lands claimed or recognized under sections one and two of said act. In the case of a claim depending for confirmation upon section 3, act of March 3, 1819, the confirmee, or his legal representative, must identify the land in order to determine whether it was covered by a claim under sections one or two of said act, and whether the claim thereto has been satisfied in whole or in part. Secretary Vilas to Commissioner Stockslager, July 7, 1888. I have considered the appeal of D. C. Hardee, as legal representative of Samuel Phares, from the decision of your office of January 31, 1887, denying his application for the approval and delivery by your office of the certificate of location, issued by the surveyor general of Louisiana, under the third section of the act of June 2, 1858 (11 Stat., 294), in satisfaction of the Louisiana private land claim of said Samuel Phares. In 1803 the Louisiana Territory was ceded to the United States by France, and April 25, 1812, Congress passed an act "for ascertaining the titles and claims to lands in that part of the Louisiana territory, which lies east of the river Mississippi and island of New Orleans and west of the river Perdido." The act provided that "the lands within said limits shall be laid off into two land districts, between which Pearl River shall be the boundary, and for each of which districts a commissioner of land claims shall be appointed by the President." These commissioners were charged, in the first place, with the duty of investigating and having a record made of all claims to lands within their respective districts, based upon "any grant, order of survey, or other evidence of claim whatsoever, derived from the French, British, 3263-VOL 7—1 1 or Spanish governments," and were required to make abstracts thereof and forward them to the Secretary of the Treasury; and in section eight of the act it was further enacted: That the said commissioners are hereby authorized and required to collect and report to Congress, at their next session, a list of all the actual settlers on land in said districts, respectively, who have no claims to land derived either from the French, British, or Spanish Governments, and the time at which such settlements were made. James O. Cosby was appointed Commissioner for the district west of Pearl river, and pursuant to said section eight of said act, he reported, June 7, 1813, a supplemental list of settlers, among whom was Samuel Phares. (Am. State Papers, Vol. 3, p. 69, Green's Ed.) Congress next passed the act of March 3, 1819 (3 Stat., 528), by the first section of which, certain claims to land derived from the Spanish or British governments, reported by the commissioners under the acts of 1812, are recognized as valid and complete titles, and by the second section, other claims founded on written evidence of title from the Spanish authorities, and reported by the said commissioners, though incomplete, are confirmed. By the third section of said act. a grant, as a donation, is made to a class of claimants and actual settlers who had no written evidence to sustain their claims, but who had actually inhabited or cultivated the lands claimed or settled on prior to April 15, 1813, and whose claims were comprised in the list of settlers reported by said commissioners; but it is provided, "that no lands shall be thus granted which are claimed or recognized by" sections 1 and 2 of said act. The settlement of Samuel Phares appears to have been made in 1811 and his claim falls within the class designated in said third section of the act of March 3, 1819. Under this act parties were " confined to the lands settled on and inhabited or cultivated, and the original settlement and inhabitation or cultivation fixed and determined the locality of the claim, and they were not permitted to go-elsewhere and take up an equal quantity, and, as it sometimes happened, that the government, through inadvertence or mistake, disposed of the land embraced in the original claim," or from some other cause, it became impossible to locate thereon, Congress, to prevent the injustice which would otherwise result in such cases, passed the act of June 2, 1858, the third section of which conIcludes as follows: Where any private claim has been confirmed by Congress and the same, in whole or in part, has not been located or satisfied, either for want of a specific location prior to such confirmation, or for any reason whatsoever, other than a discovery of fraud in such claim subsequent to such confirmation, it shall be the duty of the surveyor-general of the district in which such claim was situated, upon satisfactory proof that such claim has been so confirmed, and that the same, in whole or in part, remains unsatisfied, to issue to the claimant, or his legal representatives, a certificate of location for a quantity of land equal to that so confirmed and unsatisfied; which certificate may be located upon any of the public lands of the United States, subject to sale at a private entry at a price not exceeding $1.25 per acre. # # Under this provision of said act, the surveyor general of Louisiana in 1870, issued certificates of location on the claim of Phares, and the same were transmitted to your office for authentication. Your office denied the application for authentication of these certificates, upon the ground, that "the basis for indemnity in this case under the act of 1858 has not been established." The act of 1858, as appears from the above quotation therefrom, authorizes the issue of certificates of location only in cases of "confirmed" private land claims, and requires "satisfactory proof of such confirmation." The claim of Phares depends for confirmation upon the third section of the act of March 3, 1819, which expressly excepts from its operation lands "claimed or recognized under sections one and two of said act." If the land claimed by Phares was "claimed or recognized" under either of said preceding sections of the act, then the claim of Phares thereto was not confirmed by the act and the issuance of the certificates of location was unauthorized by the act of 1858. The burden of prov ing confirmation of the claim is upon the confirmee or his legal representatives. In order to do this, it is absolutely essential at the outset to sufficiently identify the land or establish its locus. Until this is done, it can neither be determined whether the land is covered by a claim under sections one or two of the act of 1819, nor whether the the claim thereto has been satisfied in whole or in part. Moreover, the definite location of the claim would seem to be necessary, to prevent the government from being defrauded by the duplication of claims by the original confirmees or their legal representatives. (Instructions of Commissioner Drummond of August 26, 1872, Land Office Report for 1873, p. 40.) There is no evidence whatever in this case showing either the exact or approximate boundaries of the land claimed by Phares, or in any way identifying it; hence, no basis for indemnity under the act of 1858 is established. (John Shafer 5 L. D., 283.) The proof is, also, silent as to how Hardee, the alleged legal representative of Phares and in whose behalf as such representative the application is made, acquired title to the claim. The decision of your office is accordingly affirmed. PRE-EMPTION-RESIDENCE-JOINT ENTRY. The purpose of the departmental rule requiring of the pre-emptor six months actual residence preceding entry is to secure an assurance of good faith on his part, and where good faith is otherwise sufficiently established, the object of the rule is attained, and a literal compliance therewith is not necessary. In the event of settlement before survey, and award of joint entry, the parties are not authorized to divide equally the forty acre tract in conflict and thereafter enter the same in accordance with such partition; nor is there any authority under the law for such an entry. In such a case the whole tract in conflict may be entered by either party on condition that he tenders to the other an agreement to convey to him that portion of the land covered by his occupation. If both parties fail or refuse to make entry on the terms thus prescribed then they will be allowed to make joint entry under section 2274, R. S. Secretary Vilas to Commissioner Stockslager, July 7, 1888. I have considered the appeal of Edward J. Doyle from the decision of your office of September 15, 1886, rejecting his final pre-emption proof, for the N. of SE. and SE. of SE. 1, Sec. 8, and "W. of NW. 4 of SW. 1" of Sec. 9, Devil's Lake district, Dakota. 1 Doyle filed declaratory statement, No. 126, November 2, 1883, alleg. ing settlement March 21, of that year. His proof shows, that he made settlement as alleged in his declaratory statement, March 21, 1883, and resided on the land from that time until May 1, 1883; that from the latter date to August 15, 1883, he slept on the land two or three nights each week and made such improvements thereon "as his very limited means would allow;" that from August 15 to November 1, 1883, he was confined to his bed by fever, and, being unmarried and without family, "had to be removed about six miles to the house of a friend to be cared for;" that from November 1, 1883, to January 1, 1886, he was on the land about half the time, and from the latter date to the time of his making final proof, July 23, 1886, a period of six months and twentythree days, he was on the land all the time, except two weeks in the first part of January, and one week in July, during which week he was absent hunting his team which had run away; and that bis absences, except during his said illness and the last named week when he was hunting his team, were necessary to erable him to earn a support, and, from the time of his said settlement on the land, he neither had nor claimed any other home. His improvements consisted of a frame house, ten by twelve feet, well built, a frame stable, a well, thirty acres of land broken, and six acres cultivated in crops-all valued at $300. The local officers rejected the proof, "on the ground of insufficient residence," and your office affirmed this action of the local officers, holding that, "In default of a continuous residence of six months next prior to date of proof, the proof must be rejected." In this finding, I can not concur. The two weeks' absence in January, 1886, were in the first part of that month, and this left more than six months before the date of final proof, July 23, 1886. The week's absence in July, 1886, for the purpose of hunting his lost team, was entirely consistent with an intent to maintain his residence on the land, and, in legal contemplation, did not break the continuity thereof. Moreover, the purpose of the departmental rule, requiring of the preemptor six months actual residence preceding entry, is to secure an assurance of good faith on his part, and where good faith is otherwise |