The record-union., 1896-01-11

ray made additional homestead entry
| (5,S17J for the southwest quarter of
northeast quarter and northwest quar-
| ter of southeast quarter, said section
g. which he commuted December %,
! 1890, and cash certificate 1886 issued
to him. November 10, 1890, Emma E.
Jones made homestead entry, No. 1926.
for the southeast quarter of northeast
quarter. said section 13, which she COM
muted February 8, 1894, and cash GER
tificate 1852 issued to her.
Considering these entries, by letter
F" of January 2, 1895. you were di-
rected to order hearing for the pur-
pose of aseertaining whether the tracts
covered by them were 'in the actual
possession and occupancy of Bolton, at
the date of definite location of the rail-
road" The hearing was duly had, and
/ am now in receipt of the record there
Of From the evidence you found that
in the year 1859 Thomas Bolton was
residing upon, cultivating and improy-
ing the south half of northeast quarter
and west half of southeast quarter, Sec
tion 13, township 10 north, range 8
east, M. D. NJ, and continued to do so
up to and including the 26th day of
March, 1864, and for some time there
after; that his improvements consisted
of a house, some fencing, a water ditch,
some fruit trees, vines and a small gar
den wherein he raised vegetables for
market that the said Bolton died some
eight ears ago; that he continued to re-
side upon the land in question, with the
exception of a small portion which he
sold subsequent to March 26, 1861 un-
til a short time prior to his death; that
the said Bolton was of African descent
and was born in the State of Virginia,
Z. S. of A; that he had been a slave"
On these facts you concluded that
the residence, cultivation and improve
ment of the tracts in question by
/ Thomas Bolton did not except them
from the operation of the railroad grant
for the reason that he was not, on the
26th day of March, 1864, a citizen of
the United States, and was not at that
time qualified to make a pre-emption
or homestead entry, and you, accord
ingly sustained the company's claim to
the land and recommended the cancel
lation of the said entries of Murray
and Jones.
In support of this decision, you cite
the celebrated case of Scott VS.. Sand
ford 90 Howard, 1893 as authority
against the capacity of free persons of
color to be citizens of the United States.
From your decision appeal was taken
on behalf of the entrymen, in which
several specifications of error are as
signed.
Admitting the facts as to Bottoms
settlement and residence on the land,
for they are not denied, and are clearly
proven by the testimony, the case
turns upon the point whether Bolton
was disqualified as a pre-emptor or
claimant for public land on March 20,
1864, by reason of the fact that he was
a negro.
Prior to the Fourteenth Amendment
to the Constitution there was consid-
cradle difference of opinion as to how
far free man of color, as Bolton is
shown to have been, could be a citizen
in the highest sense of the term, and
Notwithstanding the fact that it ap-
pears to have been the rule of the Land
Department to recognize such as
qualified claimant for public land, fol-
Lowing an opinion of the Attorney-Gen-
eral of the United States that "a free
man of color, a native of this country,
may be admitted to the privileges of
a -emptioner" a Op. A. G., 14D,
yet am I constrained to hold, in the
light of the doctrine announced by the
Supreme Court in the Dred Scott case,
supra, that at the date when the rail-
road grant attached to lands in the
vicinity of the tracts in controversy,
Bolton was not citizen of the United
States and. accordingly, that he was
not qualified claimant under the
public land laws.
Under the rule of the department,
settlement claim that will defeat the
operation of a railroad grant must be
OF a character capable of being assert
ed by the party in possession under
the settlement laws. (Hudson VS.. c.
2. r. r. Co., 10 L. D., 569.) From what
has gone before it appears that Bottoms
was not such a claim, so that the judg-
ment of your office is now affirmed, sub
jeet to appeal within sixty days.
So advise the entrymen's attorney.
The company's resident attorney will
be notified hereof by this office. Very
respectfully, E. F. BEST,
Assistant Commissioner.
The land involved is situated near
Greenwood, Ell Dorado County.