Van Winkle, 33 id. 448; Smith v. Athern, 34 id. 270; Hutton v. Frisbie, 37 id. 475; Sherman v. Buick, 45 id. 656; Foscalina v. Doyle, 47 id. 438; Reed v. Caruthers, 47 id. 181; Umbarger v. Chaboya, 49 id. 525; Mastick r. Cave, 52 id. 67; West v. Smith, 52 id. 322; Perry v. O'Hanlan, 11 Mo. 373; McDaniel v. Orston, 12 id. 12; Bray v. Roysdale, 53 id. 170; Rector r. Gaines, 19 Ark. 70 Thompson v. Schlater, 13 La. 115; Woodward v. McReynolds, 2 Pinney (Wis.) 268; Challefont v. Erignon, 4 Wis. 554; Arnold v. Grimes, 2 Iowa, 1; Smith v. Mosier, 5 Blackf. (Ind.) 51; Sumner t. Coleman, 23 Ind. 91; Delaney v. Burnett, 9 Ills. 454; Brown v. Throckmorton, 11 id. 529; Baty v. Sale, 43 id. 351; Stalmacker v. Morrison, 6 Neb. 363; Stark v. Baldwin, 7 id. 114. Decisions Sec. Int., April 10, 1872; Aug. 5, 1874; Oct. 11, 1878; May 8, 1880.

SEC. 175. The following classes of lands, unless otherwise, Lands not subspecially provided for by law, shall not be subject to the ect to pre-emprights of pre-emption, to wit:

First. Lands included in any reservation by any treaty,

law, or proclamation of the President, for any purpose.1 Second. Lands included within the limits of any incorporated fown, or selected as the site of a city or town. 2

Third. Lands actually settled and occupied for purposes of trade and business, and not for agriculture. 3

Fourth. Lands on which are situated any known salines or mines. 4

5 Stat. 455; 19 id. 221; R. S. 2258.

Barnard v. Ashley, 18 How. 43; Hale v. Gaines, 22 id. 144; Wilcox v. Jackson, 13 Pet. 498; U. S. v. Fitzgerald, 15 id. 407; Minnesota r. Bachelder, 1 Wall. 109; Shepley v. Cowan, 1 Otto, 330; Van Reynegan v. Bolton, 5 id. 33; Hosmer v. Wallace, 7 id. 575; Trenouth v. San Francisco, 10 id. 251; Wolsey v. Chapman, S. C., Oct. T. 1879. Turner v. Missionary Union, 5 McLean, C. C. 344; U. S. v. Railway Bridge Co., 6 id. 517; Dupas v. Wassel, 1 Dillon, C. C. 213; Russell v. Beebe, 1 Hemp. C. C. 704. Josephs v. U. S. 1 N. and H. 197; Johnson v. U.S. 2 id. 391. 2 Op. Att. Gen. 42, 578; 10 id. 56. Bellows v. Todd, 34 Iowa, 18; Fenwick v. Gill, 38 Mo. 510; Gaines v. Hale, 16 Ark. 9; same case, 26 id. 168; Marks . Dickson, 10 La. Ann. 597; McConnell v. Wilcox, 1 Scam. (Ills.) 344; Smith v. Goodell, 66 Ills. 450; Wood v. Railway Co., 11 Kansas, 323; Eli v. Frisbie, 17 Cal. 250; Mahoney v. Van Winkle, 21 id. 552; Page v. Hobbs, 27 id. 484; Carpenter v. Sargent, 41 id. 557. Decision Sec. Int., April 15, 1880.

Kissell v. St. Louis Pub. Schools, 18 How. 19; Stark v. Starrs, 6 Wall. 402. Root v. Shields, 1 Woolw. C. C. 340. Smiley, v. Sampson, 1 Neb. 56; Towsley v. Johnson, 1 id. 95; Nevada v. Rhodes, 4 Nev. 312. Decisions Sec. Int., June 5, 1876; July 26, 1876; Nov. 5, 1878; Oct. 1, 1879.

Op. Att. Gen., July 3, 1871; July 24, 1871; Aug. 5, 1871; Sept. 27, 1871. Decisions Sec. Int., July 24, 1871; Nov. 5, 1878.

U. S. v. Gear, 3 How. 120; Morton v. Nebraska, 21 Wall. 660. Decision Sec. Int., Feb. 5, 1878.

tion.

to pre-emption.

SEC. 176. Every person, being the head of a family, or Persons entitled widow, or single person, over the age of twenty-one years, and a citizen of the United States, or having filed a declaration of intention to become such, as required by the naturalization laws, who has made, or hereafter makes, a settlement in person on the public lands subject to pre-emption, and who inhabits and improves the same, and who has erected or shall erect a dwelling thereon, is authorized to enter with the register of the land office for the district in which such land lies, by legal subdivisions, any number of acres not exceeding one hundred and sixty, or a quartersection of land, to include the residence of such claimant,

Persons not en

tion.

upon paying to the United States the minimum price of such land.

5 Stat. 455; 18 id. 194, 294, 334; 19 id. 35, 404, 405; R. S. 2259. Lytle v. Arkansas, 9 How. 314; Barnard v. Ashley, 18 id. 43; Garland v. Wynn, 20 id. 6; Gazzam v. Phillips' Lessee, 20 id. 372; Lindsey v. Hawes, 2 Black, 554; Hughes v. U. S., 4 Wall. 232; Frisbie v. Whitney, 9 id. 187; Hutchings v. Low, 15 id. 77; Ferguson v. McLaughlin, 6 Otto, 174; Hosmer v. Wallace, 7 id. 575. Gimmy v. Culverson, 5 Saw. C. C. 605; Root v. Shields, 1 Woolw. C. C. 340. 3Op. Att. Gen. 90, 126, 182, 303, 563; 4id. 147; 5 id. 551; 7 id. 647,746; 10 id. 56. Lytle v. Arkansas, 12 Ark. 9; Kelly v. Wallace, 14 Minn. 236; Davis v. O'Fenall, 4 Green (Iowa), 358; McDowell v. Morgan, 28 Ills. 528; Towsley v. Johnson, 1 Neb. 95; Stark v. Baldwin, 7 id. 114; McFarland v. Culbertson, 2 Nev. 280; Ely v. Ellington, 7 Mo. 302; Page v. Hobbs, 27 Cal. 484; Kile v. Tubbs, 28 id. 402; Quinn v. Kenyon, 38 id. 499; Iburg v. Suanet, 47 id. 265; Burrell v. How, 48 id. 223. Decisions Sec. Int., April 23, 1863; July 12, 1871; June 6, 1872; Oct. 25, 1873; May 20, 1874; May 31, 1875; Jan. 24, 1876; March 8, 1877; Feb. 13, 1878; April 3, 1878; Sept. 21, 1879. Decisions Com. G. L. O., May 12, 1857; June 6, 1872; Sept. 14, 1874; Oct. 13, 1874; April 4, 1879.

SEC. 177. The following classes of persons, unless othertitled to pre-emp wise specially provided for by law, shall not acquire any right of pre-emption under the provisions of the preceding section, to wit:"

First. No person who is the proprietor of three hundred and twenty acres of land in any State or Territory.1

Second. No person who quits or abandons his residence on his own land to reside on the public lands in the same State or Territory.2

5 Stat. 455; R. S. 2260.

1 Decision Sec. Int., April 24, 1873. Decision Com. G. L. O., Oct. 11, 1879.

Decisions Com. G. L. O., Jan. 12, 1857; Oct. 11, 1879.

Limitation of SEC. 178. No person shall be entitled to more than one Pre-emption. right. 'pre-emptive right by virtue of the provisions of section one hundred and seventy-six; nor where a party has filed his declaration of intention to claim the benefits of such provisions, for one tract of land, shall he file, at any future time, a second declaration for another tract.

Oath of preemptionist, where

5 Stat. 455, 620; R. S. 2261. Johnson v. Towsley, 13 Wall. 72. Smiley v. Sampson, 1 Neb. 56; Stark v. Baldwin, 7 id. 114; Montgomery v. Whiting, 40 Cal. 294. Decisions Sec. Int., June 6, 1876; Aug. 7, 1876; Dec. 18, 1876; June 2, 1877; May 21, 1879. Decisions Com. G. L. Ó., June 29, 1874; April 18, 1877; Sept. 18, 1877.

SEC. 179. Before any person claiming the benefit of this alled; penalty chapter is allowed to enter lands, he shall make oath before the receiver or register of the land district in which the land is situated that he has never had the benefit of any right of pre-emption under section one hundred and seventy-six; that he is not the owner of three hundred and twenty acres of land in any State or Territory; that he has not settled upon and improved such land to sell the same on speculation, but in good faith to appropriate it to his own exclusive use; and that he has not, directly or indirectly, made any agreement or contract, in any way or manner, with any person whatsoever, by which the title which he might acquire from the Government of the United States should inure in whole or in part to the benefit of any person except himself; and if any

person taking such oath swears falsely in the premises, he shall forfeit the money which he may have paid for such land, and all right and title to the same; and any grant or conveyance which he may have made, except in the hands of bona-fide purchasers, for a valuable consideration, shall be null and void, except as provided in section two hundred and ten. And it shall be the duty of the officer administering such oath to file a certificate thereof in the public land office of such district, and to transmit a duplicate copy to the General Land Office, either of which shall be good and sufficient evidence that such oath was administered according to law.

The affidavit required by this section may be made before the clerk of the county court or of any court of record, of the county and State or district and Territory in which the lands are situated; and if the lands are situated in any unorganized county, the affidavit may be made in a similar manner in any adjacent county in said State or Territory, and the affidavit so made and duly subscribed shall have the same force and effect as if made before the register or receiver of the proper land district; and the same shall be transmitted by such clerk of the court to the register and receiver with the fee and charges allowed by law.

5 Stat. 456; act of June 9, 1880; R. S. 2262. Thredgill v. Pintard, 12 How. 24; Garland v. Wynn, 20 id. 6; Harkness v. Underhill, 1 Black, 316; Myers v. Croft, 13 Wall. 291; Easley v. Kellom, 14 id. 279; Lamb v. Davenport, 18 id. 307; Hosmer v. Wallace, 7 Otto, 575. Dorman v. Ames, 12 Minn. 451; Smith v. Sackett, 15 Ills. 528; Miller v. Thomas, 14 id. 428; Ainsworth v. Miller, 20 Kansas, 220; Wedekind v. Craig, S. C. Cal., Aug. 7, 1880, in manuscript. Decisions Sec. Int., Oct. 19, 1872; March 11, 1874; Sept. 18, 1874; Oct. 12, 1874; Feb. 22, 1875; Nov. 30, 1875; June 28, 1876; Feb. 29, 1876; Feb. 26, 1877; March 19, 1880; May 17, 1880. Decisions Com. G. L. O., July 13, 1877; Oct. 11, 1879.

proof.

SEC. 180. That before final proof shall be submitted by Notice of intenany person claiming to enter agricultural lands under the tion to make final laws providing for pre-emption entries, such person shall file with the register of the proper land office a notice of his or her intention to make such proof, stating therein the description of lands to be entered, and the names of the witnesses by whom the necessary facts will be established.

20 Stat. 472.

SEC. 181. Upon the filing of the notice required by the Publication of preceding section the register shall publish a notice, that notice of entry. such application has been made, once a week for the period of thirty days, in a newspaper to be by him designated as published nearest to such land, and he shall also post such notice in some conspicuous place in his office for the same period. Such notice shall contain the names of the witnesses as stated in the application. At the expiration of said period of thirty days the claimant shall be entitled to make proof in the manner provided by law. The Secretary of the Interior shall make all necessary rules for giving effect to the foregoing provisions.

20 Stat. 472. 14 Op. Att. Gen. 601.

SEC. 182. Prior to any entries being made under and by

ment; assign

tion rights.

Proof of settle- virtue of the provisions of section one hundred and sev ment of pre-emp. enty-six, proof of the settlement and improvement thereby required shall be made to the satisfaction of the register and receiver of the land district in which such lands lie, agreeably to such rules as may be prescribed by the Secre tary of the Interior; and all assignments and transfers of the right hereby secured, prior to the issuing of the patent, shall be null and void.

5 Stat. 456; R. S. 2263. Lytle v. Arkansas, 9 How. 314; Thredgill v. Pintard, 12 id. 24; Cunningham v. Ashley, 14 id. 377; Garland v. Wynn, 20 id. 6; Marks v. Dickson, 20 id. 501; Lytle v. Arkansas, 22 id. 193; Harkness e. Underhill, 1 Black, 316; Litchfield r. Register et al., 9 Wall. 575; Myers r. Croft, 13 id. 291; Easley r. Kellom, 14 id. 279: Hutchings r. Low, 15 id. 77; Lamb r. Davenport, 18 id. 307. Root v. Shields, 1 Woolw. C. C. 340; Kellom t. Easley, 1 Dillon, C. C. 281. 1 Op. Att. Gen. 291; 2 id. 42; 3 id. 91; 10 id. 56. Lytle v. Arkansas, 12 Ark. 9; Keller v. Belleaudeau, 6 La. Ann. 643; Strong v. Rachal, 16 La. 232; Kellam v. Ripley, 3 Rob. (La.) 138; McElyea r. Hayter, 2 Port. (Ala.) 148; Lamont v. Stimson, 3 Wis. 545; Challefant r. Grignon, 4 id. 354; Camp r. Smith, 2 Minn. 155; Evans v. Fulsom, 5 id. 422; Bruggerinan r. Peter, 7 id. 337; Randall r. Edert, 7 id. 450; McCue v. Smith, 9 id. 252; Ferguson v. Kumbler, 11 id. 184; Kelly v. Wallace, 14 id. 236; Woodbury v. Dorman, 15 id. 338; Jones v. Tainter, 15 id. 512; Sharon v. Woolrick, 18 id. 354; Marshall v. Bush, Morris (Iowa), 275; Pierson v. David, 1 Iowa, 24; Snow v. Flannery, 10 id. 318; Deland v. Day, 45 id. 37; Carr v. Allison, 5 Blackf. (Ind.) 63; Doe v. Hayes, 1 Ind. 247; Sumner v. Coleman, 23 id. 91; McConnell v. Wilcox, 1 Scam. (Ils.) 344; Gray v. McCance, 14 Ills. 343; McDowell v. Morgan, 28 id. 528; Baty v. Sale, 43 id. 351; Robbins v. Brown, 54 id. 48; Towsley v. Johnson, 1 Neb. 95; Franklin v. Kelly, 2 id. 79; McKean v. Crawford, 6 Kansas, 112; McKean v. Meassley, 6 id. 122; Ainsworth e. Miller, 20 id. 220; Lapham r. Hend, 21 id. 332; Rose r. Treadway, 4 Nev. 455; Treadway t Wilder, 8 id. 91; Tartar v. Hall, 3 Cal. 263; Larue v. Gaskins, 5 id. 164; Whiting v. Buckman, 13 id. 536; Page v. Fowler, 28 id. 605; Megerle v. Ashe, 33 id. 74; Quinn v. Kenyon, 38 id. 499 ; Damrell v. Meyer, 40 id. 166; Moore v. Besse, 43 id. 511; Thurston v. Alva, 45 id. 16; Hudson v. Johnson, 45 id. 21; Iburg v. Suanet, 47 id. 265; Huston v. Walker, 47 id. 484; Burrell v. How, 48 id. 223; Snow . Kimmer, 52 id. 624; Douglas v. Gould, 52 id. 656; Dilla v. Bohall, S. C. Cal., Nov. T. 1879; Chapman v. Quinn, S. C. Cal., March 13, 1880; Paulding v. Grinslay, 10 Mo. 135. Decisions Sec. Int., April 25, 1872; Feb. 18, 1874; March 9, 1875; Jan, 31, 1876; April 27, 1876; May 17, 1876; May 18, 1876; May 25, 1876; Dec. 9, 1876; Feb. 7, 1877; March 21, 1877; March 21, 1878; Nov. 13, 1878. SEC. 183. Every claimant under the pre-emption law for proclaimed for land not yet proclaimed for sale is required to make known his claim in writing to the register of the proper land office within three months from the time of the settlement, giving the designation of the tract and the time of settlement; otherwise his claim shall be forfeited and the tract awarded to the next settler, in the order of time, on the same tract of land, who has given such notice and otherwise complied with the conditions of the law.

Claim filed by

settler on land not

sale.

5 Stat. 620; R. S. 2265. Johnson v. Towsley. 13 Wall. 72; Moore v. Robbins, 6 Otto, 530. 9 Op. Att. Gen. 515. Decisions Sec. Int., Sept. 6, 1873; Feb. 6, 1874; June 2, 1876; Jan. 24, 1877; May 2, 1877; March 21, 1878; April 19, 1878. Decision Com. G. L. O., May 20, 1880. SEC. 184. When any person settles or improves a tract of with intent to land subject at the time of settlement to private entry, and purchase, on intends to purchase the same under the preceding provis private entry. ions of this chapter, he shall, within thirty days after the

Statement to be filed by settler

Lands subject to

date of such settlement, file with the register of the proper district a written statement, describing the land settled upon and declaring his intention to claim the same under the pre emption laws; and he shall, moreover, within twelve months after the date of such settlement, make the proof, affidavit, and payment hereinbefore required. If he fails to file such written statement, or to make such affidavit, proof, and payment within the several periods named above, the tract of land so settled and improved shall be subject to the entry of any other purchaser.

5 Stat. 457: R. S. 2264. Clements v. Warner, 24 How. 394; Johnson v. Towsley, 13 Wall. 72; Moore v. Robbins, 6 Otto, 530. 4 Op. Att. Gen. 493; 9 id. 515. Lytle . Arkansas, 17 Ark. 608; Godeau r. Phillips, 3 La. 59; Orillion v. Delande, 9 id. 53; Kitteridge v. Brenand, 4 Rob. (La.) 79; Landeling v. Vester, 20 La. Ann. 433; Baty v. Sale, 43 Ills. 351; Smiley v. Sampson, 1 Neb. 56; Stalmacker r. Morrison, 6 id. 363; Perry v. O'Hanlon, 11 Mo. 373; Kenyon v. Quinn, 41 Cal. 325; Low. v. Hutchings, 41 id. 643; McDonald v. Edmonds, 44 id. 328; Townsend v. Little, 45 id. 673; Hess v. Balinger, 48 id. 349; Rosecrans v. Douglass, 52 id. 213. Decisions Sec. Int., July 17, 1871; Dec. 23, 1871; April 10, 1873. Decisions Com. G. L. O., Jan. 12, 1857; Jan. 21, 1880.

tlers on unsur

SEC. 185. In regard to settlements which are authorized Declaratory upon unsurveyed lands, the pre-emption claimant shall be statement of setin all cases required to file his declaratory statement within veyed lands, three months from the date of the receipt at the district land office of the approved plat of the township embracing such pre-emption settlement.

12 Stat. 410; R. S. 2266. Lansdale v. Daniels, 10 Otto, 113. 9 Op. Att. Gen. 515. Wynn v. Morris, 16 Ark. 414; Robinson v. Forrest, 29 Cal. 317; Megerle v. Ashe, 33 id. 74; Damrell v. Meyer, 40 id. 166; Hollinshed r. Simms, 51 id. 158; Pope v. Athearn, 42 id. 606; Collins v. Bartlett, 44 id. 371. Decisions Sec. Int., May 21, 1875; Jan. 15, 1878; July 2, 1879. Decisions Com. G. L. O., Jan. 12, 1857; May 15, 1874; June 16, 1874; Jan. 20, 1880.

when filed.

claimants; time

SEC. 186. All claimants of pre-emption rights, under the Pre-emption two preceding sections, shall, when no shorter time is pre- of making proof scribed by law, make the proper proof and payment for the and payment. lands claimed within thirty months after the date prescribed therein, respectively, for filing their declaratory notices, has expired.

16 Stat. 279, 604; 18 id. 52, 81; 19 id. 55; R. S. 2267. Doe v. Stephenson, 9 Ind. 144. Decisions Sec. Int., Nov. 21, 1878; Feb. 28, 1879; May 21, 1879; June 5, 1880. Decisions Com. G. L. O., March 8, 1878; Sept. 25, 1879.

emptor subject to

SEC. 187. When a pre-emption claimant shall file a written Lands relin. relinquishment of his claim in the local land office, the land quished by procovered by such claim shall be held open to settlement and entry at once. entry without further action on the part of the Commissioner of the General Land Office.

Act of May 14, 1880. Cir. G. L. O., May 25, 1880.

after notice of

SEC. 188. In all cases where any person has contested, Party contestpaid the land office fees and procured the cancellation of ing pre-emption entry to be alany pre-emption entry, he shall be notified by the register lowed thirty days of the land office of the district in which such land is sit- cancellation to uated of such cancellation, and shall be allowed thirty days make entry. from date of such notice to enter such lands; and the regis ter shall be entitled to a fee of one dollar for giving such