Northwest enterprise. [volume] (Anacortes, Wash. Ter.) 1882-1887, 1884-05-17
Second Presumption Filings.

| office whether pre-emptor may rem "
his Cling at the expiration Of the thirty
three months specified in bis declaration.
Upon several occasions this question has
been answered through these columns Ein
tho negative. The law is very plain on
the subject, and has been construed by thu
land department a. preventing second fil-
ipgs since 1912. A California court some
time since, by a strained construction. and
one which could not have betn:.well con-
s,dered. held that although pre-emptol
| was not allowed to f1le on other ..land, he
| might file q second declaration. for the
same tract By.-any person At all scr
Quaiuted with the construction Of stat
| utss, it could be seen ct glance that such
| Q construction was cot in harmony with
the pre-cm,ion law itself, and that it in
| volved sbsurdities too fag rant to be recog
pized In q proceeding 80 grave as the ac-
QUESTION OF public land. For short
time the construction given by tho Cali
fornia court was adopted by the land de-
part ment, but was soon discarded as un-
sound doctrine, and in issuing its general
circular last year the department express
Iy declared that NO pers"u should he al
loud to ie the -ecoud time.
The secre,a ary gives bic reasons some-
what at length Tor arriving at thi-S con
clusion sndlfcr ovsrturnin'ng the Ca'if"'
nia decision. The substance Of his re-
marks will be found in :he foil owing ex
tracts: "Ssctions 1895 aud 2267 provide
for the 6lingIot declsratory statement in
the case Of 'unoif, red lands and making
proof aud payment thereafter. By th-
terms Of these secti"ns thirty three
months, from the date Of his settlement. in
which, to comply with the law. During
this time nc is. protected by the law in
the quiet enjoy nent Of his claim, and n"
payment tor such psjvilege is rrqa'red.
Before such all occupation Of public lasds
Is Law full, certain acts on the part OF the
xould.be pre,smptor is necessary. H.
must settle iu person upon ths': land, snd
within three months after such settlement
die his written notice Of intention an his
part to purchase said land. BY these "cts
when followed by residence and improve
ment, he Is enabled under the pre- emti"u'
law to practically own the land claims'
by him for 33 months before payment -
rouired. But when he docs make pay:
ment, therefore, he is precisely upon the
same looting as though the land had hem
open to private cash entry, so far As the
actual purchase is concerned. The right,
then, to hold the laud before payment is
made therefor. upon promising to buy thu
same ut stipulated time together ~iu
the right TO purchase at such time, 10 the
'p.e-emptive right referred to in section
226l, and such right is initiated by sst'le-
ment and filing y 6eclarstory statement,
and he's had its full lie WHOM the time
stipulated for purchase arrives. II f"r any
reason tue pre- emptor does not perform
his part Of the contract, the fact yet re-
maine that he has once enjoyed the pre-
emptivs right. He has beld the land to-
the full period Of time allotted, Mm under
the law, and by what further right can he
ask the department to double the time
named by the statutei Such constrnc
ton would, in effect, be equivalent to leg
islation on the part of the department.
When the whsls Of this section 10 con-
sidcred together. it becomes apparent
that Congress By the 6rst clause said. IN"
man shall have more than one pre-emp-
tive right" and hy the second, "thAt right
shall be restricted to one tract OF land"
Full effect 10 thus given the whole section'
without giving to the pre-emptor tue
exclusive right TO hold the land beyond
the time 6xed by law, and thus receive
more than enc prs-empt've right.
II Congress had not intended, by tue
cls use updor consi.tiratios, to Limit the
right OF pre-emptor to one fling, or
rather if Congress had Intended TO permit
more than ono ding for the same 'ractby
the same psrssa, apt words could have
Lesu readily found for tho expression Of
sucb intent. The construction which
would admit ofa second fling fsr the
.me land would allow = third and fourth,
and. in effect, would permit the prs-cu'p'
tor tn held the land indefinitely without
psyment, result in direct copaiss with
The letter asd spirit Of the law. and !"
deroeatiou Of the general rights OF the
public.
IT. second ding is permitted for the
same tract. tho second dsclarat"ry atate'