plies, shall have been disposed of, the whole purpose of this law will have been accomplished. It will no longer have an operation anywhere. It will not be a part of the system of pre-emption laws, or of any other system of laws. It will be functus officio.

Whilst it remains to be executed it is not subject to the terms and conditions of other pre-emption laws, but to the terms and conditions to be found in its own language. The pre-emptive privileges which it grants. are not to be secured by a compliance with the requirements of the general pre-emption laws, but depend upon conditions totally and essentially different.

Settlement upon the land in person is not required. The amount of land to be taken is not limited to one hundred and sixty acres, and the acts to be performed by the claimants to secure the benefit of the law are not the same with those required of claimants under the general preemption laws.

In construing and executing this law, therefore, I do not inquire, nor do I feel at liberty to inquire, what the requirements of the general preemption laws applicable to our vast public domain, and to our people at large, are. They have nothing to do with this case. This case is pecu

liar and stands alone. It grew out of the circumstances which attended the settlement of this land, and the law was made to apply to this, and to this alone. And, in executing it, its language being clear, unambiguous, and unmistakable, I am only to ask what Congress intended, deriving that intention from the plain and distinct language in which they have expressed it, and then give it effect.

It is further insisted that, even if limited to claimants under Vallejo, the benefits of the act were intended to be conferred only upon such purchasers as were actual settlers upon the land purchased, and that purchasers in good faith, who had taken possession of the land purchased, and who maintained that possession at the date of the adjudication of the case by the Supreme Court, but without personal residence thereon, cannot participate in its benefits. I cannot assent to this interpretation of the law. It is not one of its provisions. The language of the law is that they shall have the privilege "to enter, according to the lines of surveys, at one dollar and twenty-five cents per acre, the land so purchased, to the extent to which the same had been reduced to possession, at the time of said adjudication of said Supreme Court."

The law does not require actual personal settlement, and the law not requiring it, I cannot require it.

Taking, then, all the provisions of the act into consideration, I entertain no doubt that the possession spoken of in the law, and meant by the law, is the common law possession, which may exist as well without personal presence upon the land as with it; nor have I any doubt that all the incidents of a common law possession attach to the possession required by this law, and that an actual possession of any part of a tract held by title, or color of title, draws to it the possession of all the land included within the calls of the deed. The only mention made of “settlement" in the act is to be found in the fourth section, after the class of persons to take under the provisions of the land had been designated by the second section. They were "bona fide purchasers from Vallejo, or his assigns, who had reduced the land purchased to possession at the time of the adjudication of the Supreme Court"-not those who had personally settled upon the land and continued to reside there. Then, the fourth section provides that the claims, within the purview of the act, shall be presented to the Register and Receiver of the district land office, accompanied by proof of bona fide purchase, under Vallejo, of settle

ment, and the extent to which the tracts claimed had been reduced into possession at the time of said adjudication."

The proofs were to be of the purchase of the land, of the settlement of the lands, and of the extent to which the lands purchased had been reduced to possession. No proof of the settlement of the purchaser was required.

Now, a settlement may be made of land as well by colonizing it as by going to reside upon it in person.

The purchaser may not settle upon it himself, but he makes a settlement of it by placing others there; and, taking all the provisions of the law together, as I must do, and so construe it as to give every part of it a reasonable operation, I am of opinion that this kind of settlement, as well as settlement by actual residence, was intended.

And this conclusion is made irresistible by the fact already mentioned, that in describing the persons who are to avail themselves of the privileges of the law, no allusion is made to personal settlement or residence, and to give such a construction to the act, upon the language of the fourth section, would be materially to limit and restrict the natural meaning of the language in the second section.

The construction I give secures to them both a harmonious, just, and reasonable operation.

I have, therefore, reached the conclusion that bona fide purchasers from Vallejo, or his assigns, have a right to enter, according to the lines of the surveys, at one dollar and twenty-five cents per acre, the land so purchased, to the extent to which the same had been reduced to possession, at the time of said adjudication of said Supreme Court, without any reference whatever to the quantity of land embraced in the purchases, or to the question of personal residence or occupation.

I herewith return the papers.

The remaining cases in your office will be disposed of in accordance with the views and principles which I have set forth in this communication.

I am, sir, very respectfully, your obedient servant,

O. H. BROWNING, Secretary of the Interior. Hon. Jos. S. Wilson, Commissioner General Land Office.

No. 2631 B.

Decision of the Acting Secretary of the Interior in the case, involving the title to a private land claim known as the Santos Calla Rancho, of Davis v. Lober.

To a determination of the rights of the respective parties it becomes. necessary to ascertain the condition of this land at the date of the passage of the act of July 2d, 1864. The question then arises, Is said act a confirmation of the original grant claim, or did it only give the grant claimants or their assigns the privilege of purchasing such of said lands at $1.25 per acre as the United States had title to, when Congress passed the said act?

It seems to me this statement in itself answers the question. If this

act confirms the original claim, why are the claimants required to pay for their land?

The Ranch claim was rejected by the Board of Commissioners January 15, 1856, and on appeal to the District Court it was "decided to be invalid" September 18, 1860. No appeal was taken from this decision.

The Swamp grant was passed September 28, 1850, and was the first. disposition made by Congress of lands in California, and by opinion of Attorney-General Black, dated November 10, 1858 (opinions vol. 9 page 254), the grant was in itself a present grant, wanting nothing but a definition of boundaries to make it perfect; and to obtain that object the Secretary of the Interior was directed to make out an accurate list and plot of the lands and cause a patent to issue therefor. It was not necessary that a patent should issue to the State. The patent was merely the evidence of title, nothing more.

Secretary Stewart said, Dec. 23, 1851, that the grant of Swamp and overflowed lands was a grant in presenti. That when the selections were made and approved, or the patent issued, the title therefor becomes perfect, and has relation back to the date of the grant, and Secretary McClelland, under date of June 21, 1856, decided that land erroneously embraced in a private claim, if swamp, at the date of the act, would be subject to selection. That "in the matter of the reservation or setting apart certain tracts of land for these alleged private claims, is merely a withholding them from sale or other disposition by the land officers, during the continuance of the reservation, with a view of preventing conflicts of interest whilst the investigations were in progress as to the public or private character of the land, and when the former was settled as its status, it became, on the return thereof to the mass of the public lands, subject to the laws which made a specific grant of all public lands for other purposes, according to the provision thereof existing at the time of such

return."

Under the treaty with Mexico the United States was to recognize such rights of property as was protected by the treaty. If there were no such rights in this case, or the claim of right was rejected, from that date the land became a part of the public domain of the United States, and the Swamp land passed to the State as of the date when it was granted to her, September 28, 1850.

The 6th Section of the act entitled "An act to provide for the survey of the public lands in California" &c., approved March 3, 1853 (vol. 10, page 246), granted to the State of California, of the public lands, whether surveyed or unsurveyed sections sixteen and thirty-six, for the purposes of public schools in each township. The 13th section of an act entitled "An act to ascertain and settle the private land claims in the State of California" approved March 3, 1851 (vol. 9, page 633), declares what lands in California belong to the public domain of the United States. It says "that all lands the claims to which have been finally rejected by the Commissioners * * which shall be finally decided to be invalid by the District or Supreme Court * * shall be deemed, held, and considered as part of the public domain of the United States."

*

The final decision in this Ranch case was made September 18, 1860. These lands were surveyed long prior to July 2, 1864, and the township plats were in the local office before and at that date, consequently the land had been previous to said act, and was at the date of its passage, public land, and as such subject to the operation of the laws in force for the disposal of the public domain in California.

It is not probable, therefore, that Congress intended by the said act to give the grantees or their assigns of land within said Ranch, the privilege of purchasing lands to which the United States had previously divested itself of the title, or had granted preference rights therein. The express exemption from purchase by grant claimants of any lands to which pre-emption rights had attached is sufficient evidence of the intention of Congress on this point. If otherwise, which I do not admit, the rule laid down by the Attorney-General in the opinion before referred to, would govern the action of the Department. He said, "When there is a conflict between two titles derived from the same source, either of which would be good if the other were out of the way, the elder one must always prevail, prior in tempore, portior est in jure."

*

*

*

W. T. OTTO, Acting Secretary.

No. 264 B.

TITLE IV.

Coal Lands and Town Property.

Circular.

Instructions to give effect to the act of Congress approved July 1, 1864, for the disposal of "Coal Lands" and of "Town Property" in the public domain.

INTERIOR DEPARTMENT,

General Land OFFICE, August 20, 1864.

Gentlemen-Annexed is the act of Congress approved July 1, 1864,* for the disposal of "Coal Land" and of "Town Property" on the public domain.

It will be observed that the word "mines," as used in the pre-emption act of 1841, is recognized in the first section of this law as importing any tracts of the public domain embracing "coal beds or coal fields," which are to be treated as mineral lands, and not subject to ordinary private entry.

2d. That said tracts are to be disposed of at public sale, on not less than three months' public notice, to the highest bidder, in such "suitable legal subdivisions" as the President may direct, at the minimum price of $20 per acre; all tracts not thus disposed of are thereafter to be liable to private entry at said minimum.

3d. In order that this office may have reliable information as to what lands embrace "coal beds or coal fields," it will be your duty to institute proper inquiries, directed to reliable sources, as to the mineral character of the lands in your district; to ascertain what tracts of land come within the meaning of the terms "coal beds or coal fields," and make a prompt report of all such lands to this office.

4th. In reference to this matter, special orders will be given to the United States Surveyors-General to require their Deputy Surveyors, in executing the public surveys, carefully to designate in their field notes all localities of coal beds or coal fields in the smallest legal sub-division; and thereafter to have the same properly delineated on the official township plats returned to the General and District Land Offices.

5th. The second section of this act relates to "Town Property," or the founding of cities or towns on the public domain, and limits the extent of the area of the city or town to 640 acres, to be laid off into lots, and which, after filing in the General Land Office the transcript, statement, and testimony required by the act, are to be offered at public sale, to the highest bidder, at a minimum of ten dollars for each lot. Lots not thus disposed of are made thereafter liable to private entry at said mini

* No. 108 B.