Land preemption

“ We conclude that, while the company had, at the time of withdrawal, the right of selection of any lands which, under the existing practise of the Land Office, a settler could have taken under the preemption or homestead laws, it may not take lands valuable solely for timber or for other uses which would not justify preemption or homestead settlement under the land laws as contemporaneously understood and administered. ”

“ The bill creates an unjust distinction between persons claiming the benefit of the preemption laws. Whilst it reduces the price of the land to existing preemptors to 62-1/2 cents per acre and gives them a credit on this sum for two years from the present date, no matter how long they may have hitherto enjoyed the land, future preemptors will be compelled to pay double this price per acre. ”

“ Regarding our public domain as chiefly valuable to provide homes for the industrious and enterprising, I am not prepared to recommend any essential change in the land system, except by modifications in favor of the actual settler and an extension of the preemption principle in certain cases, for reasons and on grounds which will be fully developed in the reports to be laid before you. ”

“ I recommend the repeal of the present system, and that these lands be placed under the superintendence and management of the General Land Office, as other public lands, and be brought into market and sold upon such terms as Congress in their wisdom may prescribe, reserving to the Government an equitable percentage of the gross amount of mineral product, and that the preemption principle be extended to resident miners and settlers upon them at the minimum price which may be established by Congress. ”

“ But further, that the act of 1834 was not intended as a repeal of the act of 1807, in regard to lead mines, so as to grant a right of pre-emption in them to settlers, is manifest from the fact that an act was passed only seven days before it, reviving an act to grant pre-emption rights to settlers on the public lands, which excludes settlers from the right of pre-emption in any land reserved from sale by act of Congress. ”

“ Much of this was in advance of the public surveys, and even before the passage of an act of congress opening the agricultural lands to settlement, and providing for the sale of the mineral lands. Yet the progress of the country was not thereby stayed. The first appropriator of mineral lands within certain limits, or the first settler on agricultural lands to the extent prescribed by the pre-emption laws in force in other states, was recognized everywhere as having a better right than others to the claim appropriated, or to the land settled upon. ”

“ It is obviously the main purpose of the section to declare, that after the lands are surveyed they shall be subject to sale, according to the general land system of the government; and, secondly, to subject them to the right of pre-emption as defined by the act of 1841, and to extend that right to lands unsurveyed as well as to those surveyed. ”

“ It will require three months, I judge, for a man to select a good claim (a quarter section, being 160 acres) , and fence and plough a part of it and to erect thereon a cabin. There is never a want of land to preempt in a new country. The settler can always get an original claim, or buy out the claim of another very cheap, near some other settlers. The liberal policy of our government in regard to the disposal of public lands is peculiarly beneficial to the settler. ”

“ Congress, therefore, adopted the policy of keeping the public lands open to occupation and pre-emption, and appropriation to public uses, notwithstanding any grant it might make, until the lands granted were ascertained, and providing that if any sections settled upon or reserved were then found to fall within the limits of the grant, other land in their place should be selected. Thus settlements on the public lands were encouraged without the aid intended for the construction of the roads being thereby impaired. ”

“ Pre-emption or homestead claims might therefore be established after the passage of the land-grant statute, provided that this was done before the lands were withdrawn from settlement. [90] Indeed, the Secretary of the Interior ruled that settlement and occupation exempted land from the grant even though the settler failed formally to assert his claim. ”

“ The presence of such a structure will, it is admitted, diminish the attractiveness of respondents' lands for residence purposes, and, in consequence, decrease their exchange value. Respondents contend that they have a valuable right appurtenant to their land, in the nature of an easement, to have the land used for park purposes, and that the act of Congress, directing its use for other purposes, is a taking of their property without just compensation, in violation of the Fifth Amendment. ”

“ So far as they are available for agriculture, and to whatever extent they may be reclaimed under the national irrigation law, the remaining public lands should be held rigidly for the home builder, the settler who lives on his land, and for no one else. In their actual use the desert-land law, the timber and stone law, and the commutation clause of the homestead law have been so perverted from the intention with which they were enacted as to permit the acquisition of large areas of the public domain for other than actual settlers and the consequent prevention of settlement. ”

“ From the beginning of land grants the Land Department has exercised the power of withdrawing from pre-emption and homestead entry any body of lands which in its judgment might be necessary for the satisfaction of the grant. ”

“ It is believed that the proof required by the above-named act, as to the quality of the lands, is not sufficient to prevent lands not desert from being acquired under it, while the entire absence of any provision prescribing what portion of land in the tract entered shall be irrigated, the cultivation and improvements which shall constitute reclamation, the penalties or forfeitures for abandonment, or sale of the applicant's interest before making final proof and payment, renders the act liable to be taken advantage of for objects not contemplated by it nor compatible with the public interest. ”

“ These limits apply to lands which are thrown open for 'free selection,' as it is termed, but in some cases, where found desirable, the limit is by regulation made much smaller. "In addition to the many advantages offered by the 'lease-in-perpetuity' system, the land act provides others to meet the wants of different classes. ”

“ Pre-emptions.—Any person qualified under the homestead laws can pre-empt 160 acres of government land within the limits of a railroad grant, and after an actual residence upon and cultivation of the same for at least six months, can obtain title by payment of $2.50 per acre, or, if outside the limits, $1.25 per acre. It is imperative, however, that the person so pre-empting shall (with his family, if any) reside upon the land. ”

“ To prevent this unjust spoliation on the one part, and summary revenge on the other, a law has been passed, by which any person having taken possession of land belonging to the States Government shall, as soon as the lands have been surveyed and come into the market, have the right of purchasing the quarter section, or one hundred and sixty acres round him. Many thousands are settled in this way all over the new Western States, and this pre-emption right is one of the few laws in Western America strictly adhered to. ”

“ In general there can be no doubt that a State has power to add more land that shares the benefit of a scheme, to the lawfully constituted district that has to pay for it, and to do so against the will of the owner. ”

“ If the boundary of the land granted had been a fresh-water river, there can be no doubt that the effect of the grant would have been such as is given to such grants by the law of the state, extending either to the margin or center of the stream, according to the rules of that law. It has been the practice of the government from its origin, in disposing of the public lands, to measure the price to be paid for them by the quantity of upland granted, no charge being made for the lands under the bed of the stream, or other body of water. ”

“ And, going beyond the special language of the act in respect to the sale of lands, the court observed:
'But we go further, and say that, whensoever a tract of land shall have once been legally appropriated to any purpose, from that moment the land thus appropriated becomes severed from the mass of public lands, and that no subsequent law, or proclamation, or sale would be construed to embrace it, or to operate upon it, although no reservation were made of it. ”

“ Under these circumstances is is to be presumed that the act of 1844-an obscure and special provision of the then existing land system of the United States-was extended over this country, was the general provisions of the same contained in the Pre-emption Act of 1841 left behind? Nothing can be more unreasonable. ”

“ To effect a more equitable distribution of land, the Public Land Law should be amended so as to prohibit any owner of one or more parcels of land from acquiring lands by homestead and free patents the total area of which, added to that of his own land, shall exceed 144 hectares. ”

“ Taking the above unity as a basis, and observing the distinction which must be made between grazing land, or that which is proper for raising stock, and farming land, without the facility of irrigation, this law grants to the contractor or contractors for the establishment of a new settlement, for each hundred families which he may introduce and establish in the state, five sitios of grazing land, and five labors at least, the one-half of which shall be without the facility of irrigation ”

“ To the third question we reply, that the lands containing lead mines in the Indiana territory, or in that part of it made into new land-districts by the act of the 26th June, 1834, are not subject, under any of the pre-emption laws which have been passed by Congress, to a pre-emption by settlers upon the public lands. ”

“ Applying to this premise of fact the legal principle that, where property is separated from the water by land belonging to some one else, no riparian rights attach to the land of the former, it is held that the lot owners before the court have no riparian privileges which the government of the United States is in any way bound to respect. ”

“ But we think it is not a true construction of the land laws that a specified right given to a limited class to take by purchase particular tracts is in any just sense the equivalent of the general right of all citizens to purchase public lands. ”

“ Thus does a government which is so niggard of its land that it will not part with the fee-simple of the most barren rock for less than £1 an acre, while that £1 an acre law remains in force, alienate millions of acres at one-tenth of the rent which it received on its free grants. The system devised for the preservation of the waste lands will end in their confiscation. ”

“ All land, to which any claims or rights of others have attached, does not fall within the designation of 'public land.' The statute also says that whenever, prior to the definite location of the route of the road, and of course prior to the grant made, any of the lands which would otherwise fall within it have been granted, sold, reserved, occupied by homestead settlers, or pre-empted or otherwise disposed of, other lands are to be selected in lieu thereof, under the direction of the secretary of the interior. ”

“ But if the state is at liberty to treat the possessors of land as public functionaries, it is only going one step further to say, that it is at liberty to discard them. The claim of the landowners to the land is altogether subordinate to the general policy of the state. The principle of property gives them no right to the land, but only a right to compensation for whatever portion of their interest in the land it may be the policy of the state to deprive them of. ”

“ No one seriously doubts that the land use regulations at issue rendered petitioners’ land unsusceptible of any economically beneficial use. This was true at the inception of the moratorium, and it remains true today. ”

“ A large portion of our citizens have seated themselves on the public lands without authority since the passage of the last preemption law, and now ask the enactment of another to enable them to retain the lands occupied upon payment of the minimum Government price. ”

“ That all lands, exclusive of timber lands and mineral lands, which will not, without irrigation, produce some agricultural crop, shall be deemed desert lands within the meaning of this act, which facts shall be ascertained by proof of two or more credible witnesses under oath, whose affidavits shall be filed in the land office in which said tract of land may be situated.' The reasons which established and justified the policy of double price for the former apply as fully to lands which had to be reclaimed before they could be cultivated as to lands which needed no reclamation. ”

“ The party who makes the first settlement in person upon a tract of public land is entitled to the right of pre-emption, provided he subsequently complies with all the requirements of the law—his right to the land commences from the date he performed the first work on the land. ”