SOLDIERS' ADDITIONAL HOMESTEAD. MARY C. STEPHENSON. The certificate of right to make additional entry issued to the widow of a deceased soldier may properly contain a clause requiring her to show, at the time of applying to make entry, that she has not remarried. Commissioner Sparks to Mr. A. A. Hosmer, Washington, D. C., October 19, 1885. In reply to your letter of the 14th instant, in reference to the additional homestead right of Mary C. Stephenson, widow of Alex. C. Stephenson, I have to state that Mrs. Stephenson claims, under sections 2306 and 2307, United States Revised Statutes, providing for homesteads on the public lands, approved June 22, 1874. Section 2306 provides, in favor of the class of ex-soldiers described in the previous section, 2304, that "every person entitled under the provisions of section 2304 to enter a homestead who may have heretofore entered under the homestead law a quantity of land less than 160 acres shall be permitted to enter so much land as when added to the quantity previously entered shall not exceed 160 acres." Section 2307 provides that "in case of the death of any person who would be entitled to a homestead under the provisions of section 2304, his widow if unmarried, or in case of her death or marriage, then his minor orphan children, by a guardian duly appointed and officially accredited at the Department of the Interior, shall be entitled to all the benefits enumerated in this chapter, subject to all the provisions as to settlement and improvement therein contained." Soon after entering upon my duties, as Commissioner, a paper was presented to me, for my signature, certifying that Mrs. Stephenson was entitled to make an additional entry, as the widow of Alexander C. Stephenson, under said sections 2306 and 2307. I added to this certificate, before signing it, a proviso that she should prove, at the time of applying to make entry, that she was still the widow of A. C. Stephenson. You now insist that this proviso should be eliminated from my certifi cate. I decline to eliminate it therefrom. I understand that certificates of this character have been issued by my predecessors without such a condition being inserted therein, but I do not take the same view of my duty under the laws, and must decline to follow the precedents set by them. Any one can see by a glance at the statutes referred to, that Mrs. Stephenson's right to additional entry depends upon her continuing to be the widow of A. C. Stephenson; that if she has since remarried, or died, the right belongs to minor orphan children, if any, or ceases altogether, as a claim against the United States. Is there anything unreasonable, then, in requiring that this essential fact should be proved, when application is made to exercise the right dependent thereon? The law does not make it incumbent on me to certify to Mrs. Stephenson's right at all. I am not willing to certify to it without adding the requirement to which you object. There is no intention to discriminate against Mrs. Stephenson in this case. I regard all cases of the kind as properly subject to the same rule. I am not aware that any certificate has been issued in disregard thereof, since my attention was called to the point, in the Stephenson case, and if any has been, it has resulted from inadvertence. NOTE-The foregoing decision was affirmed by Secretary Lamar, December 3, 1886. CIRCULAR RELATING TO MANNER OF ACQUIRING TITLE TO TOWN-SITES ON PUBLIC LANDS. DEPARTMENT OF THE INTERIOR, GENERAL LAND OFFICE, Washington, D. C., July 9, 1886.* REGISTERS AND RECEIVERS, United States Land Offices: GENTLEMEN: There are three methods by which title may be acquired to public lands for town-site purposes: one provided for in sections 2380 and 2381; another in sections 2382, 2383, 2384, 2385, and 2386; and the third in sections 2387, 2388, and 2389, United States Revised Statutes. I. Section 2380 authorizes the President to reserve public lands for town-sites purposes on the shores of harbors, at the junction of rivers, important portages, or any natural or prospective centers of population. Section 2381 provides for the survey of such reservation into urban or suburban lots, the appraisement of the same, and the sale thereof at public outcry; the lots remaining unsold are thereafter to be disposed of at public sale or private entry, at not less than the appraised value thereof. II. Sections 2382, 2383, 2384, 2385, and 2386, Revised Statutes (act 3d March, 1863, 12 Stat., 754; act 3d March, 1865, 13 Stat., 530), limit the extent of the area of the city or town which may be entered under said acts to 640 acres, to be laid off in lots, which, after filing in this office * The circular takes effect on the date of the Secretary's approval. the statement, transcripts, and testimony required by section 2383, are to be offered at public sale to the highest bidder at a minimum of $10 for each lot. An actual settler upon any one lot may pre-empt that lot, and any additional lot on which he may have substantial improvements, at said minimum at any time before the day of sale. Such person must furnish pre-emption proof showing residence and improvement upon the origi nal lot and improvement upon additional lot, after the usual notice of intention by publication. Lots not disposed of at time of public sale are thereafter subject to private entry at such minimum or at such reasonable price as the Secretary of the Interior may order from time to time, after at least three months' notice, as the municipal property may increase or decrease in value. The preliminaries required by this method are: 1. Parties having founded or who desire to found a city or town on the public lands, under the provisions of sections 2382, 2383, 2384, 2385, and 2386, must file with the recorder of the county in which the land is situate a plat thereof, describing the exterior boundaries of the land according to the lines of public surveys, where such surveys have been made. 2. Such plat must state the name of the city or town, exhibit the streets, squares, blocks, lots, and alleys, and specify the size of the same, with measurements and area of each municipal subdivision, the lots in which shall not exceed 4,200 square feet, with a statement of the extent and general character of the improvements. 3. The plat and statement must be verified by the oath of the party acting for and in behalf of the occupants and inhabitants of the town or city. 4. Within one month after filing the plat with the recorder of the county a verified copy of said plat and statement must be sent to the General Land Office, accompanied by the testimony of two witnesses that such town or city has been established in good faith. 5. Where the city or town is within the limits of an organized land district a similar map and statement must be filed with the register and receiver. The exterior boundary lines of the town, if upon the land over which Government surveys have not been extended, may, when such surveys are so extended, be adjusted according to those lines, where it can be done without impairing vested rights. 6. In case the parties interested shall fail or refuse, within twelve months after founding a city or town, to file in the General Land Office a transcript map, with the statement and testimony called for by section 2382, the Secretary of the Interior may cause a survey and plat to be made of said city or town, and thereafter the lots will be sold at an increase of 50 per cent. on the minimum price of $10 per lot. 7. When lots vary in size from the limitation fixed in section 2382 (4,200 square feet), and the lots, buildings, and improvements cover an area greater than 640 acres, such variance as to size of lots or excess in area will prove no bar to entry, but the price of the lots may be increased to such reasonable amount as the Secretary may by rule establish. 8. Title to be acquired to town lots embracing mineral entries is subject to recognized possession and necessary use for mining purposes, as provided in section 2386. III. Lands actually settled upon and occupied as a town-site, and therefore not subject to entry under the agricultural pre-emption laws, may be entered as a town-site, in accordance with the provisions of sections 2387, 2388, and 2389, United States Revised Statutes. (Act March 2, 1867, 14 Stat., 541; act March 3, 1877, 19 Stat., 392.) 1. If the town is incorporated, the entry may be made by the corporate authorities thereof through the mayor or other principal officer duly authorized so to do. 2. If the town is not incorporated, the entry may be made by the judge of the county court for the county in which said town is situated. 3. In either case the entry must be made in trust for the use and benefit of the occupants thereof, according to their respective interests. 4. The execution of such trust as to the disposal of lots and the proceeds of sales is to be conducted under regulations prescribed by state or territorial laws. Acts of trustees not in accordance with such regulations are void. 5. Private individuals or organizations are not authorized to enter town sites under this act, nor can entries under this act be made of prospective town-sites. The town must be actually established, and the entry must be for the benefit of the actual inhabitants and occupants thereof. 6. The officer authorized to enter a town-site may make entry at once, or he may initiate an entry by filing a declaratory statement of the purpose of the inhabitants to make a town-site entry of the land described. 7. The entry or declaratory statement shall include only such land as is actually occupied by the town, and the title to which is in the United States, and, if upon surveyed lands, its exterior limits must conform to the legal subdivisions of the public lands. 8. The amount of land that may be entered under this act is proportionate to the number of inhabitants. One hundred and less than two hundred inhabitants may enter not to exceed 320 acres; two hundred and less than one thousand inhabitants may enter not to exceed 640 acres; and where the inhabitants number one thousand and over an amount not to exceed 1,280 acres may be entered; and for each addi tional one thousand inhabitants, not to exceed five thousand in all, a further amount of 320 acres may be allowed. 9. When the number of inhabitants of a town is less than one hundred the town-site shall be restricted to the land actually occupied for town purposes, by legal subdivisions. 10. Where an entry is made of less than the maximum quantity of land allowed for town-site purposes, additional entries may be made of contiguous tracts occupied for town purposes, which, when added to the previous entry or entries, will not exceed 2,560 acres; but no additional entry can be allowed which will make the total area exceed the area to which the town may be entitled by virtue of its population at date of additioual entry. 11. The land must be paid for at the Government price per acre, and proof must be furnished relating 1st, To municipal occupation of the land; 2d, Number of inhabitants; 3d, Extent and value of town improvements; 4th, Date when land was first used for town-site purposes; 12. Thirty days' publication of notice of intention to make proof must be made and proof of publication furnished. 13. Title cannot be acquired under this act to mines of gold, silver, cinnabar, or copper, nor to any valid mining claim or possession. A non-mineral affidavit is required in all states and territories except Florida, Iowa, Kansas, Louisiana, Minnesota, Mississippi, Missouri, and Wisconsin. 14. A greater quantity of land than 2,560 acres is not excluded from pre-emption or homestead entry because of town-site reservations unless the excess in area is actually settled upon, inhabited, improved, and used for business and municipal purposes. 15. If the corporate limits of a town are in excess of the maximum area authorized to be entered as a town-site, the proper quantity may be set off, as provided in section 3 of the act of March 3, 1877, and the residue be open to disposal under the homestead and pre emption laws. Very respectfully, Approved: L. Q. C. LAMAR, WM. A. J. SPARKS, Commissioner. Secretary. NOVEMBER 5, 1886. |