Seattle daily post-intelligencer. [volume] (Seattle, W.T. [Wash.]) 1881-1888, 1884-05-06

The question Is often asked At the
/ land Office whether a pFe-emptor tnRy
reLew his filing at the expiration Of
tue trirtythree months specified in bis
declaration. Upon several occasions
this que stIon has been answered through
! these columns IN the negative. The law
is very plain on the subject, and has
been construed by the laud department.
n preventing second filings since 1872
4 California court some time siuce by
strained construction. and one = hIch
/ could not have been well considered.
hsid that although pre-emptor was
not allowed to hle on other land. he
might file a second declaration for the
same tract. BY any person at all ac-
| quainted with the construction of stat
uies, II could be seen at a glance that
| such construction was not IN harmony
with the pre-emption law itself, and that
II involved absurdities too fragrant To
be recognized in Il proceeding so grave
as the acquisition of public land. For a
sbort time the construction given by the
California court WAS adopt Il by the
land department. but was soon disc ard-
ed as unsound doctrine, aud III issuing
Its general circular last year the depart
ment expressly declared that 10 person
sho Id salioSed To file second time.
he secretary gives his reasons some
what a length for artIving AZ this CON
cluslon and f.r Jverturning tie Callfor-
MA decision. The Substance of his re-
marks Will be found In the following |
extracts: sections $3.50 and 2l61 pro
vide for the filing of a declarat0ry state |
ment in the case of uuoffered lands |
and making proof and payment there
after. by the terms of these sections |
thirty-three months, from the date of |
his settlement, in which to comply with |
the law. During this time he is pro- |
iected by the law III the quiet enjoy |
ment of his claim, and no payment for |
such privilege is required. Before such |
an occupation of public lands Is lawful, |
certain acts on the part of the would tie |
pre- emptor is necessary. He must set |
tie in person upon the land, and with |
In three months after such settlement |
nile his written notice of intention on |
his part to purchase said land. By these |
acts when followed by residence and I'M |
pruvement, he is enabled under the pre-
emptlon law to practically own tue land |
claimed by him for 33 months before |
payment Is required. But when he does |
make payment, therefore, he Ii precise
ly upon the same footing as though the /
land had been open to private cash en-
try, SO far as the actual purchase is con-
cerned. The right, then, to hold the
land before payment Is made therefor,
upon promising to buy the same at
stipulated time, together with the right
to purchase at such time. is the pre-
emptive right referred to in section
226l, and such right is initiated by set
Element and filing declaratory state
haA f,,II A, |
time stipulated for purchase arrives. If
for any reason the pre-emptor does not
perform his part of the contract, the
joyed the pre-emptive right. He has
held the land for the full period of time
allotted kim under the law, and by " nat
farther right can he ask the department
to double the time Lamed by the stat
ute! Such a construction would. IN ef-
feet, be equivalent to legislation on the
part of the department.
When the whole of this section is con-
sidered together, II becomes apparent
that Congress by the first clause said,
" No man shall have more than one
pre- emptive right" aud by the second,
" that right shall be restricted To one
tract of land" Full effect is thus given
the whole section, without giving To the
pre- emptor the exclusive right TO hold
the land beyond the time fixed by law,
and thus receive more than enc pre-
emptivs right.
If Congress had not intended, bs the
clause md r consideration, to limit the
right of pre-etnptor tn one fling, or
rather If Congress bad Intended to per
tait inoreAhan oae fling for the same
tract by the same person, apt words
could have been readily found for the
expression OF such Intent. he con
strnetion which would admit of a Sec
ond. filing for the same land ould allow
q third and fourth, and, in effect, would
permit the pre-emptor to hold the land
indefin .tely without pay ment. result in
direct conflict with the letter and spirit
of the law, and in derogation of the
general rights of the puhlic.
II a second filing is permitted FIR the
same traot, the seco I'd declIratory state
ment, in order to apparently comply
with the law, must of necessity set for
ward the date of settlement at least
thirty months, for section 2365 provides
that every claimant under the pre-
emption Law for land not yet pro-
for sale, is requested to make
known his claim in writing to the Reg
lister OF the proper Et,nu oHlce Within
three mouths from the time of settle
ment, giving the designation of the
tract aad the time OF settlement, other
wise his claim shall be forfeited, and
the tract awarded to the next settler, in
the order of time, on the same traet of
land who have given such notice and
otherwise complied with the conditions
of the law
T.. h. 1ar 1
the new declaratory statement which is
sought to be filed. alleges settlement on
April y, 1888. whereas in fact such set
Element WAS made February 2. 1880, as
appears from the original deelaratory
statement. Thus, in order to secure a
right not conferred by the law, it be-
comes necessary for the pre-emptor to
faisify the facts, and stuItifv himself"