Where the land was subject to private entry, June 1, 1840, and a settlement shall thereafter be made upon such land, or where the land shall become hereafter subject to private entry, and after that period a settlement shall be made, which the settler is desirous of securing, notice of such intention must be given within thirty days after such settlement; and, in all such cases, the proof, affidavit and payment must be made within twelve months after such settlement.
The tracts liable to entry are embraced under the following designations: First, a regular quarter-section, notwithstanding the quantity may vary a few acres from one hundred and sixty; or a quarter-section, which, though fractional in quantity by the passage of a navigable stream through the same, is still bounded by regular sectional and quarter-sectional lines; second, a fractional section containing not over one hundred and sixty acres, or any tract being a detached or anomalous survey made pursuant to law, and not exceeding such quantity; third, two adjoining half-quarter-sections (in all cases to be separated by a north and south line, except on the north side of township, where the surveys are so made as to throw the excess or deficiency on the north and west sides of the township), of the regular quarters mentioned in the first designation; fourth, two half-quarter or eighty-acre subdivisions of a fractional or broken section, adjoining each other, the aggregate quantity not exceeding one hundred and sixty acres; fifth, a regular half-quarter and an adjoining fractional section, or an adjoining half-quarter subdivision of a fractional section, the aggregate quantity not exceeding one hundred and sixty acres; sixth, if the pre-emptor do not wish to enter one hundred and sixty acres, he may enter a single half-quarter section (made by a north and south line), or an eighty-acre subdivision of a fractional section; seventh, one or more adjoining forty-acre lots may be entered, the aggregate not exceeding one hundred and sixty acres; and, eighth, a regular half-quarter, a half-quarter subdivision, or a fractional section, may each be taken, with one or more forty-acre subdivisions lying adjoining, the aggregate not exceeding one hundred and sixty acres. Forty-acre tracts, or quarter quarter-sections, may be entered in the same manner that eighty-acre, or half-quarter sections, have been.
Only one person upon a quarter-section is protected, and he the one who made the first settlement, provided he conform to the other provisions of the law. A person who has once availed himself of the provisions of the Pre-emption Act, cannot, at any future period, or at any other land office, acquire any other right under it. No person, who is the proprietor of three hundred and twenty acres of land in any State or Territory of the United States, or who quits or abandons his residence on his own land to reside on the public land in the same State or Territory, is entitled to the benefit of the Pre-emption Acts.
The approval of the tracts by the local land office is the evidence of the survey; but the land is to be construed as surveyed when the requisite lines are run on the field, and the corners established by the deputy surveyor. No assignment or transfers of pre-emption rights are recognized at the land office; the patents issuing to the claimants, in whose names alone the entries are made.
The following description of lands are not liable to entry: first, lands included in any reservation by any treaty, law, or proclamation of the President of the United States, and lands reserved for salines and for other purposes; second, lands reserved for the support of schools; third, lands acquired by either of the last two treaties with the Miami Indians in Indiana, or which may be acquired of the Wyandot Indians in Ohio, or any other Indian reservation, to which the title has been, or may be extinguished at any time during the operation of the Pre-emption Acts, by the United States; fourth, sections of lands reserved to the United States, alternate to other sections granted to any State for the construction of any canal, railroad, or other public improvement; fifth, sections, or fractions of sections, included within the limits of any incorporated town; sixth, every portion of the public lands which has been selected as a site for a city or town; seventh, every parcel or lot of land actually settled and occupied for the purposes of trade and agriculture; and, eighth, all lands in which are situated any known salines or mines.
Persons claiming the benefit of the Pre-emption Acts are required to file duplicate affidavits, such as are specified by law, and to furnish proof, by one or more disinterested witnesses, of the facts necessary to establish the requisites mentioned in the first paragraph of this article; such witnesses having first been duly sworn or affirmed by some competent authority.
If adverse claims are made to the same tract, each claimant is to be notified of the time and place of taking testimony, and allowed to cross-examine the opposite witnesses, and to furnish counter-proof, itself subject to cross-examination. If, by reason of distance, sickness, or infirmity, the witnesses cannot personally appear before the register of the land office, their depositions, taken in conformity with the following regulations, may be received:
The notice to adverse claimants must be in writing, and served in time to allow at least one day for every twenty miles which the party may have to travel in going to the place of taking evidence. The proof, in all cases, should consist of a simple detail of facts merely, and not of broad and general statements. If the pre-emptor be “the head of a family,” the witnesses must state the facts constituting him such; whether he be a husband having a wife and children, or a widower, or an unmarried person under twenty-one years of age, having a family, either of relatives or others, dependent upon him, or hired persons. All the facts relative to the settlement in person, inhabitancy, or personal residence, the time of its commencement, the manner and extent of its continuance, as also those sharing the apparent objects, must be stated. It must be stated that the claimant made the settlement on the land in person; that he has erected a dwelling upon the land; that he lived in the same, and made it his home, etc. In the event of a decision by the land officer against the claimant, he may appeal to the Commissioner of the Land Office at Washington.
No entry will be permitted until the affidavit required of the claimant is taken. Duplicates thereof must be signed by the claimant, and the fact of the oath being taken must be certified by the register or receiver administering the same; one copy to be filed in the Register’s office, and the other to be sent to the Land Office at Washington.
A purchaser of public land is only required to make written application to the Register of the local land office for the tract desired to be entered, and to pay to the Receiver the purchase money therefor. Blank forms of such application are furnished gratuitously at the Land Office where the tract is desired to be entered.