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Claims under above act to be initiated by filing same with register and receiver; then to be submitted to General Land Office on the question of twenty years' occupancy; if decided adversely to claimant the land will be open to pre-emption or homestead; the occupant, at date of act, though having settled within less than twenty years, to have prior right.

Register and receiver should act jointly in cases under said act.

Commissioner McFarland to register and receiver, Tucson, Ariz., July 23, 1883.

GENTLEMEN: I am in receipt of the letter of the receiver of October 19, 1882, transmitting the affidavit of Samuel H. Drachman, rel

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ative to his claim No. 1, under the act of February 5, 1875 (18 Stat., p. 305), and recommending that the claimant be permitted to make payment in cash for the land claimed under said act.

In considering said recommendation I have to state that said act provides that claimants thereunder shall file their claims with the register and receiver of the United States Land Office for the district in which the land claimed is situated. This Mr. Drachman has done. His case should now be brought before this office upon the question of occupancy for twenty years prior to February 5, 1875, in the manner pointed out by said act. If this question of occupancy should be finally decided adversely to said Drachman claim, then the land covered thereby will be open to settlement under the provisions of the pre-emption or homestead laws of the United States; the occupant of the land in question at the date of said act of February 5, 1875, who had settled thereon within a period less than said twenty years to have a prior right to homestead the same.

As this case is not yet before this office upon the question of twenty years' occupancy as contemplated by said act, and consequently no final decision upon that question has yet been rendered, it follows that the receiver's recommendation that the claimant be allowed to purchase the land claimed by him at this stage of the proceedings is premature, being sustained neither by the law, nor the facts in the case.

The law contemplates that your action in regard to the claims herein referred to should be joint, and therefore it is expected that you will hereafter abstain from making separate recommendations or suggestions in regard thereto.

PROOFS-ACT OF FEBRUARY 5, 1875.
SOLOMON WARNER.

Proof of occupancy should be definite; facts should be required to be proved, and not conclusions of witnesses accepted.

Where proof is not definite and sufficient, register and receiver should summon witnesses and examine them orally, on interrogatories, as per instructions herein given.

Commissioner McFarland to register and receiver, Tucson, Ariz., July 31, 1883.

GENTLEMEN: I have examined the papers submitted with your separate reports in the case of Solomon Warner, who claims lots 11 and 19 in Sec. 14, T. 14 S., R. 13 E., Pima County, Arizona, under special act of Congress, approved February 5, 1875, entitled "An act to grant title to certain lands in the Territory of Arizona" (18 Stat., p. 305).

These papers have been forwarded here for the purpose of obtaining a patent for said tracts of land by reason of twenty years' occupancy or

possession of said lots prior to February 5, 1875, by said Warner, or those under whom he claims.

The claimant has introduced as proof in this case, to sustain his title to said lot No. 11, an instrument in writing, dated July 1, 1849, signed by José Capistran.

This instrument purports to sell to Jesus Castro lands which were granted him (Capistran) by the supreme government; but does not in any other manner indicate what lands were sold, nor is a grant of any land to Capistran found among the papers in this case.

On the 23d day of November, 1874, Jesus Castro and wife by deed. conveyed to Dolores Waltemath a tract of land which is so described as to identify the same (as to some of its boundaries) as said lot No. 11, and on the 14th day of December, 1875, this same tract of land was by deed conveyed by Dolores Waltemath and husband to Solomon Waruer.

The claimant has also introduced as proof in this case, to sustain his title to said lot No. 19, a deed dated June 7, 1875, from Tomas Elias and wife to Samuel Hughes, and a deed for the same land dated July 7, 1875, from Samuel Hughes and wife to Solomon Warner.

The proofs accompanying these several deeds are the affidavits of different parties. The matters sworn to by these affiants are general in their character, being in substance that said Warner and those under whom he claims have occupied said lands for upwards of twenty years prior to February 5, 1875.

This occupancy or possession should, in my judgment, be shown in a more definite manner. Facts should be proved, and not the conclusions of the witnesses testified to.

The joining of these two distinct claims in one action is another embarrassing feature in their adjudication by this office.

Said act of February 5, 1875, authorizes you to summon witnesses, administer oaths, and take testimony.

This provision of law seems to impose upon you the duty of summon. ing witnesses in these cases, and interrogating them, under oath, in regard to the matters involved.

When the instructions of November 26, 1877, under said act of 1875, were issued, the United States land office was at Florence, a long dis tance from the lands in question, and, consequently, for the convenience of those claiming thereunder, it was then considered proper to accept proof in the form of an affidavit; but as said lands are now near to your office, and as the affidavits accompanying the proofs in these cases are not deemed sufficiently definite upon those points which are considered material, I hereby modify said instructions, by instructing you to hereafter examine witnesses orally, under oath, and reduce the questions propounded and answers given to writing in all cases where the witnesses are within the jurisdiction of your office.

In order to enable you to adjudicate said claims separately and in ac

cordance with said instructions as herein modified, I return herewith said deeds and the proofs attached thereto, that you may reopen each case and fix a day when you will, at the office of the register, take testimony relative to the questions to be adjudicated.

After giving the interested parties due notice of the action taken by you pursuant to the modified instructions, you will thereafter be governed in your official action thereon by the provisions of said act of February 5, 1875, and the rules of practice now in force.

In the examination of witnesses as herein indicated you will first establish their competency to testify by having them testify as to their age, occupation, place of residence from February 5, 1855, to February 5, 1875; and particularly as to their knowledge of the land involved, and how such knowledge was acquired.

In framing the questions to be asked of each witness the act of 1875, and the instructions issued by this office, pursuant thereto, will be your guide.

Each question should be so worded as to confine, as nearly as possible, the witness to those things within his own knowledge.

You will make a report in each case when you forward here the testimony taken.

ACT OF FEBRUARY 5, 1875-LANDS RESERVED.

WILLIAM A. MCDERMOTT.

The

The offer of McDermott to file declaratory statement was properly rejected. land being claimed by Hughes and others, under said act of 1875, no claim can be initiated thereon while said former claims remain unadjudicated.

Commissioner McFarland to register and receiver, Tucson, Ariz., January

14, 1884.

GENTLEMEN: I am in receipt of your letter of the 20th ultimo transmitting papers on appeal from your action refusing to allow William A. McDermott to file a declaratory statement under the provisions of the pre-emption act of September 4, 1841, covering the E. of NE. of Sec. 3, and W. of NW. of Sec. 2, T. 14 S., R. 1 E., in the district of lands subject to sale at your office.

It appears by said papers that you base your refusal to allow said. filings upon the grounds that the tracts of land covered by said declaratory statement are reserved by virtue of the provisions of the act of February 5, 1875 (18 Stat., p. 305), by reason of certain claims having been filed pursuant thereto, which have not yet been finally adjudicated and settled, and consequently cannot be now disposed of under said act of 1841.

It is shown by evidence on file here that claims under said act of 1875 were filed February 3, 1876 (covering nearly all the land in question),

by Samuel Hughes, Frentino Cota, Leonardo Romero, Juan José Ortiz, and Francisco Romero.

These claims have not yet been adjudicated and their validity determined.

Said act of 1875, where the title of the claimant is found to be valid, as therein provided, relinquishes the title of the United States to the land claimed and makes a grant of the same to such claimant.

In view of this legislation no claim can be initiated to the land in question, under said act of 1841, while the claims of Hughes and others are in their present condition.

Your action in rejecting said filing is therefore sustained and you will so notify Mr. McDermott, and at the same time advise him of his right of appeal from this ruling to the honorable Secretary of the Interior.

II. CALIFORNIA.

1. PRIVATE CLAIMS.

MOTION FOR REHEARING.

RANCHO EL SOBRANTE.

The matters presented not bringing the case within the rules under which rehearings are granted, and no ground being discovered which upon the principles applicable to new trials would justify opening the case, motion denied.

The merits of the decision having been argued at length by counsel, are also considered, and L reason found for dissent from the conclusions reached therein.

Secretary Teller to Commissioner McFarland, April 4, 1883.

SIR: The decision in this case upon its merits was rendered by my predecessor on appeal from your office February 23, 1882.

A petition for a rehearing on behalf of said rancho was made and filed on the 17th day of April thereafter.

April 28, 1882, a motion to dismiss the motion for a rehearing was made by counsel for contestants and a printed brief filed.

On the 7th day of March, 1883, an oral argument was made before me in behalf of the petition for a rehearing.

I have considered such argument and the brief submitted therewith. The case presented does not bring it within the rules upon which rehearings are generally granted, nor do I think that any ground is disclosed that, under the rules and the well-established principles relating to new trials, would justify me in opening the case and directing a rehearing.

Counsel for the petition, in his oral argument and brief submitted at that time, dwelt at length upon the merits of my predecessor's decision. I have considered said argument and brief in that respect also, and have taken occasion to examine the briefs and papers laid before my

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