THE PREEMPTION ACT OF 1841
Settlement of the American West had two basic prerequisites. First, the land had to be surveyed into townships, ranges and sections. Without a survey the land could not be definitively located. Thus, the Government Land Office (GLO) did not offer public lands for sale or homestead until there had been an official survey approved by the U.S. Surveyor General. Second, there had to be pre-entry registration of the settler’s intent: whether to homestead or purchase. As discussed in other blogs, this was not the Certificate of Entry which was issued after, not before, proven completion of the five year “proving up” period under the Homestead Act of 1862. This was, instead, a Registration Receipt declaring the homesteader’s intent to reside upon and improve the designated parcel. Often, these receipts were recorded with the local County Recorder’s Office at or near the time the settler began his proving up period.
There was, of course, another class of settler: the Squatter. This person settled upon public land either before the GLO survey was first performed or settled after the survey was approved but before someone officially registered at the GLO to purchase or prove up the parcel. Under the Preemption Act of 1841 (the “Act”), the squatter could eventually obtain a U.S. Patent to land, but his eligibility requirements were quite different from those of the homestead claimant or outright purchaser.
The Act (5 Stat 453) was adopted on September 4, 1841. It was an ambitious program. The federal government allotted 500,000 acres of public land to each state for internal improvement. Sec. 8, Act These lands could be sold for not less than $1.25 per acre, and the net proceeds (after costs of survey and administration) were paid, in part, to the state in which the land was located. Sec. 9, Act Each state receiving such funds was required to apply the funds to “…roads, railways, bridges, canals and improvement of water-courses, including the draining of swamps….”. Sec. 9, Act Eligibility under the Act was specified in Sec. 10:
The applicant was the head of a family, a widow or single man over the age of 21 years; • The applicant was an American citizen or intended to become a citizen;
The applicant had, since June 1, 1840, made a settlement in person upon the public lands;
The lands settled upon were no longer under Indian title;
The lands settled upon had been surveyed;
The applicant had erected a dwelling upon the parcel at issue;
The applicant was not requesting more than 160 acres of land;
The applicant had submitted payment of $1.25 per acre to the GLO Registrar.
There were, of course, restrictions to what a squatter could acquire by compliance with the Act. These restrictions, also set forth in Sec. 10, were:
No person could acquire more than one prescriptive right;
The owner of 320 acres or more of land in any State or Territory was not eligible;
No person could quit his residence on his own land and then settle upon the public land; (This is believed to mean a prohibition of dual residency. Settlers were those who left wherever they had been to start a new life somewhere else in the West.)
No lands located in any reservation were available for preemption;
No lands reserved for the support of schools were available for preemption;
No sections of land reserved for the construction of canals, railroads or other public improvements were available for preemption;
No lands within an incorporated town or a platted town site were available for preemption;
No lands settled for trade and not for agriculture were available for preemption;
No lands containing salines or mines were available for preemption.
The Preemption Act received its most publicized judicial scrutiny in Frisbie v. Whitney 76 U.S. 187, 194 (1869). Frisbie is a rather celebrated decision to any native Californian, such as myself. Mariano Guadalupe Vallejo was Governor of California, with vast holdings in and around what is now Sonoma County, California. These holdings, however, were derived from grants by the Mexican government prior to California statehood inn 1850. These grants were subsequently invalidated by the U.S. Supreme Court on March 24, 1862 in United States v. Vallejo. Immediately thereafter, Whitney entered an unsurveyed portion of the Vallejo land and constructed a building claimed to be his residence and added a garden. Mr. Whitney never tendered payment of the land to the GLO Registrar. The parcel was already occupied by Frisbie, who had tendered his purchase price to the GLO Registrar and claimed to be living on the parcel. The Supreme Court invalidated Mr. Whitney’s claim to the parcel:
“When all these prerequisites are complied with, and the claimant has paid the price of the land, he is entitled to a certificate of entry from the register and receiver; and after a reasonable time, to enable the land officer to ascertain if there are superior claims, and if in other respects the claimant has made out his case, he is entitled to receive a patent, which for the first time invests him with the legal title to the land.
Frisbie v. Whitney 76 U.S. 187, 194 (1869) (Emphasis Supplied)
In a recent project, I had the opportunity to review the historic records of two applications under the Preemption Act. Each involved land in Pitkin County, Colorado. The GLO Registrar listed the process, and the ultimate U.S. Patent, as a “Cash Entry” and not a “Homestead Entry”. In homestead entry, the homesteader never paid a purchase price for the land. His residence, cultivation and improvement of the property was considered sufficient payment. The preemptor’s rights, then, derive principally (if it largely) from the actual payment of the purchase price, and not from his residence upon the property. This is a significant designation.
Once the preemptor filed his application (and paid the purchase price) the GLO Registrar had two additional steps. First, the Registrar verified the accuracy and truthfulness of the preemptor’s to residence upon the parcel with an unregistered intent to purchase. Second, the Registrar reviewed his records to determine whether any homesteader or other person had registered to prove up the preemptor’s chosen parcel, or any portion of that parcel. If both reviews were favorable, then the application proceeded to an ultimate award of a patent.
Legal title to the land is established by the issuance of a U.S. Patent, but the issuance date of the patent is not the actual date of ownership. As set forth in United States v. Etcheverry 230 F.2d. 193 (10th Cir. 1956):
“A patent from the United States operates to transfer the title, not merely from the date of the patent, but from the inception of the equitable right upon which it is based. Sheply v. Cown 91 U.S. 330 … Indeed, this is generally true in case of the merging of an equitable right into a legal title.”
230 F.2d. at Pg. 196-97; Emphasis Supplied
In Benson Min. & Smelting Co. v. Alta Min. & Smelting Co. 145 U.S. 428, 429 (1892), the court dealt with mining claims and held that there were three classes of title: (a) title by possession alone, which conferred no right to a patent; (b) equitable title, occurring when the statutory conditions for a patent had been completed to the satisfaction of the federal government but a U.S. Patent had not technically been issued; and, (c) actual title, when the U.S. Patent is delivered to and received by the claimant.
Frisbie and Etcheverry together result in a clear rule. Under the Preemption Act, the patent ultimately issued relates back to the date on which the applicant obtained equitable title. That date is the date on which the preemptor paid the purchase price to the GLO Registrar. This has particular relevance to road claims under R.S. 2477 which could be made only on lands within the public domain. Under Preemption, removal from the public domain does not occur until the payment price is paid to the GLO Registrar. Prior to that payment date, the land remains in the public domain available for all persons to make claim even though, as in Frisbie there is a competing person on the land who has “squatted” but not paid the purchase price.
© Copyright James A. Beckwith (2021)