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34

THE HOMESTEAD LAW.

[From BRIGHTLEY'S Digest.]

SEC. 50. Any person who is the head of a family, or who has arrived at the age of 21 years, and is a citizen of the United States, or who shall have filed his declaration of intention to become such as required by the Naturalization Laws of the United States, and who has never borne arms against the United StatesGovernment, or given aid and comfort to its enemies, shall, from and after the first January, 1863, be entitled to enter one quarter section, or a less quantity, of unappropriated public lands, upon which said person may have filed a preemption claim, or which may, at the time the application is made, be subject to preömption at one dollar and twenty-five cents or less per acre; or 80 acres or less of such unappropriated lands at two dollars and fifty cents per acre; to be located in a body in conformity to the legal subdivisions of the public lands, and after the same shall have been surveyed. Provided, That any person owning and residing cn land may, under the provisions of this act, enter other land lying contiguous to his or her said lands, which shall not, with the land so already owned and occupied, exceed in the aggregate 160 acres.

SEC. 51. The person applying for the benefit of this Act shall, upon application to the register of the land office in which he or she is about to make such entry, make affidavit before the said register or receiver that he or she i3 the head of a family, or is 21 years or more of age, or shall have performed service in the army or navy of the United States, and that such application is made for his or her exclusive use and benefit, and that said entry is made for the purpose of actual settlement and cultivation, and not either directly or indirectly for the use or benefit of any other person or persons whomsoever; and upon filing the said affidavit with the register or receiver, and on payment of five dollars when the entry is of not more than eighty acres, he or she shall thereupon be permitted to enter the amount of land specified. Provided, however, that no certificate shall be given or patent issued therefor, until the expiration of five years from the date of such entry; and if, at the expiration of such time, or at any time within two years thereafter, the person making such entry, or if he be dead his widow; or in case of her death, his heirs or devisee; or in case of a widow making such entry, her heirs or devisee, in case of her death, shall prove by two credible witnesses, that he, she, or they have resided upon, or cultivated the same for the term of five years immediately succeeding the time of filing the affidavit aforesaid, and shall make affidavit that no part of said land has been alienated, and that he will bear true allegiance to the Government of the United States; then in such case, he, she, or they, if at that time a citizen of the United States, shall be entitled to a patent as in other cases provided by law. And Provided further, that in case of the death of both father and mother leaving an infant child orchildren under tewnty-one years of age, the right and fee shall enure to the benefit of said infant child or children; and the executor,

administrator, or guardian may at any time within two years after the death of the surviving parent, and in accordance with the laws of the State in which such children for the time being have their domicil, seil said land for the benefit of said infants, but for no other purpose; and the purchaser shall acquire the absolute title by the purchase, and be entitled to a patent from the United States, on the payment of the office fees and sum of money herein specified. Provided, That until the first day of January, 1867, any person applying for the benefit of this Act, shall, in addition to the oath hereinbefore required, also make oath that he has not borne arms against the United States, or given aid and comfort to its enemies.

SEC. 52. The Register of the land office shall note all such applications on the tract-books and plats of his office, and keep a register of all such entries, and make return thereof to the general land office, together with the proof upon which they have been founded.

SEC. 53. No lands acquired under the provisions of this Act shall, in any event, become liable to the satisfaction of any debt or debts contracted prior to the issuing of the patent therefor.

SEC. 54. If at any time after the filing of the affidavit, as required in the second section of this Act, and before the expiration of the five years aforesaid, it shall be proven after due notice to the settler to the satisfaction of the register of the land office, that the person having filed such affidavit shall have actually changed his or her residence, or abandoned the said land for more than six months at any time, then and in that event the land so entered shall revert to the Government.

SEC. 55. No individual shall be permitted to acquire title to more than one-quarter section, under the provisions of this Act, and the Commissioner of the General Land Office is hereby required to prepare and issue such rules and regulations, consistent with this Act, as shall be necessary and proper to carry its provisions into effect; and the registers and receivers of the several land offices shall be entitled to receive the same compensation for any lands entered under the provisions of this Act that they are now entitled to receive when the same quantity of land is entered with money, one-half to be paid by the person making the application, at the time of so doing, and the other half on the issue of the certificate by the person to whom it may be issued; but this shall not be construed to enlarge the maximum of compensation now prescribed by law for any register or receiver. Provided, That nothing contained in this Act shall be so construed as to impair or interfere in any manner whatever with existing preemption rights; and Provided, further, that all persons who may have filed their applications for a preemption right prior to the passage of this Act, shall be entitled to all privileges of this Act; Provided, further, that no person who has served, or may hereafter serve, for a period of not less than fourteen days in the army or navy

of the United States, either regular or volunteer, under the laws thereof, during the existence of an actual war, domestic or foreign, shall be deprived of the benefits of this Act, on account of not having attained the age of twenty-one years. SEC. 56. The fifth section of the Act entitled "An Act in addition to an Act more effectually to provide for the punishment of certain crimes against the United States, and for other purposes," approved the 3d of March, in the year 1857, shall extend to all oaths, affirmations, and affidavits, required or authorized by this Act.

SEC. 57. Nothing in this Act shall be so construed as to prevent any person who has availed him or herself of the benefits of the first section of this Act from paying the minimum price or the price to which the same may have graduated, for the quantity of land so entered, at any time before the expiration of the five years, and obtaining a patent therefor from the Government, as in other cases provided by law, on making proof of settlement and cultivation as provided by existing laws granting preemption rights.

SEC. 58. In case of any person desirous of availing himself of the benefits of the Homestead Act of 20th of May, 1862, but who, by reason of actual service in the military or naval service of the United States, is unable to do the personal preliminary acts at the district land-office which the said Act of 20th May, 1862, requires, and whose family, or some member thereof, is residing on the land which he desires to enter, and upon which a bona fide improvement and settlement have been made, it shall and may be lawful for such person to make the affidavit required by said Act before the officer commanding in the branch of the service in which the party may be engaged, which affidavit shall be as binding in law, and with like penalties, as if taken before the register or receiver; and upon such affidavit being filed with the register by the wife or other representative of the party, the -same shall become effective from the date of such filing, provided the said application and affidavit are accompanied by the fee and comcommissions, as required by law.

SEC. 59. Besides the ten-dollar fee exacted by the said Act, the homestead applicant shall hereafter pay to the register and receiver, each, as commissions, at the time of entry, one per centum upon the cash price, as fixed by law, of the land applied for, and like commissions when the claim is finally established, and the certificate therefor issued as the basis of a patent.

SEC. 60. In any case hereafter in which the applicant for the benefit of the homestead, and whose family, or some member thereof, is residing on the land which he desires to enter, and upon which a bona fide improvement and settlement have been made, is prevented by reason of distance, bodily infirmity, or other good cause, from personal attendance at the district land office, it shall and may be lawful for him to make the affidavit required by the original statute before the clerk of the court for the county in which the applicant is an actual resident, and to transmit the same, with the fee and commissions, to the register and receiver.

SEC. 61. All the public lands in the States of Alabama, Mississippi, Louisiana, Arkansas, and Florida shall be disposed of according to the stipulations of the homestead law of 20th of

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May, 1862, entitled "An Act to secure homesteads to actual settlers on the public domain," and the Act supplemental thereto approved 21st of March, 1864, but with this restriction, that until the expiration of two years from and after the passage of this Act no entry shall be made for more than a half-quarter section, cr eighty acres; and in lieu of the sum of ten dollars required to be paid by the second section of said Act, there shall be paid the sum of five dollars at the time of the issue of each patent; and the public lands in said States shall be disposed of in no other manner after the passage of this Act. Provided, That no distinction or discrimination shall be made in the construction or execution of this act on account of race or color; and provided further that no mineral lands shall be liable to entry and settlement under its provisions.

SEC. 62. All the provisions of the said homestead law, and the act amendatory thereof, approved March 21, 1864, so far as the same may be applicable, except so far as the same are modified by the preceding sections of this act, are applied to and made part of this act, as fully as if herein enacted and set forth.

GENERAL PROVISIONS.

SEC. 104. The right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.

SEC. 105. Whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for the construction of ditches and canals for the purposes aforesaid is hereby acknowledged and confirmed: Provided, however, that whenever after the passage of the act, any person or persons shall, in the construction of any ditch or canal, injure or damage the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage.

PRICE OF PUBLIC LANDS.

SEC. 36. That an Act entitled "An Act to graduate (and reduce) the price of the public lands to actual settlers and cultivators," be, and the same is hereby, repealed.

SEC. 87. Whenever any reservation of public lands shall be brought into market under existing laws, it shall be lawful for the Commissioner of the General Land Office to fix a minimum price, not less than one dollar and twenty-five cents per acre, below which such lands shall not be disposed of.

PRE-EMPTION RIGHTS.

SEC. 24. That the eleventh section of the Act of Congress approved Sept. 4, 1841, entitled "An Act to appropriate the proceeds of the public lands, and to grant pre-emption rights," be so amended, that appeals from the decisions of the district officers, in cases of contest between different settlers for the right of pre-emption, shall hereafter be decided by the commissioner of the general land office, whose decision shall be final, unless appeal therefrom be taken to the secretary of the interior.

SEC. 25. Where settlements, with a view to preemption, have been made before the survey of the lands in the field, which shall be found to have been made on sections sixteen or thirty-six, said sections shall be subject to the pre-emption claim of such settler; and if they, or either of them, shall have been or shall be reserved or pledged for the use of schools or colleges in the State or territory in which the lands lie, other lands of like quantity are hereby appropriated in lieu of such as may be patented by pre-emptors; and other lands are also hereby appropriated to compensate deficiencies for school purposes, where said sections sixteen or thirty-six are fractional in quantity, or where one or both are wanting by reason of the township being fractional, or from any natural cause whatever: Provided, That the lands by this section appropriated, shall be selected and appropriated in accordance with the principles of adjustment and the provisions of the act of Congress of May 20, 1826, entitled "An Act to appropriate lands for the support of schools, in certain townships and fractional townships not before provided for."

SEC. 26. In regard to settlements which by existing laws are authorized in certain States and territories upon unsurveyed lands (which privilege is hereby extended to California), the preemption claimant shall be and is hereby in all cases required, from and after the first day of September, 1862, to file his declaratory statement within 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: Provided, The provisions of this action shall not be held to authorize pre-emption and settlement of mineral lands, which are hereby exempted from the provisions of this act.

SEC. 27. In lieu of the fee allowed by the 12th section of the pre-emption act of 4th September, 1841, the register and receiver shall each be entitled to one dollar for their services in acting upon pre-emption claims, and shall be allowed jointly at the rate of fifteen cents per hundred words for the testimony which may be reduced by them to writing for claimants, in establishing pre-emption or homestead rights; the regulations for giving proper effect to the provisions of this act to be prescribed by the commissioner of the general land office.

sons who have declared their intention to become citizens, which homesteads have been made, improved, and used for agricultural purposes, and upon which there have been no valuable mines of gold, silver, cinnabar, or copper discovered, and which are properly agricultural lands, the said settlers or owners of such homesteads shall have a right of pre-emption thereto, and shall be entitled to purchase the same at the price of one dollar and twenty-five cents per acre, and in quantity not to exceed one hundred and sixty acres; or said parties may avail themselves of the provisions of the Act of Congress approved May 20, 1862, entitled "An Act to secure homesteads to actual settlers on the public domain," and Acts amendatory thereof.

SEC. 30. Upon the survey of the lands aforesaid, the secretary of the interior may designate and set apart such portions of the said lands as are clearly agricultural lands, which lands shall thereafter be subject to pre-emption and sale as other public lands of the United States, and subject to all the laws and regulations applicable to the same.

SEC. 31. In the case of such islands in the Great Miami River, in the State of Ohio, as are undisposed of, or any vacant public lands adjacent thereto, which are in the actual and exclusive occupancy of any persons who have made improvements thereon, or of their heirs or assigns, such occupants thereof shall have the preference right to enter the same at two dollars and fifty cents per acre, on making proof of the facts to the satisfaction of the commissioner of the general land office, and paying for the land within twelve months from the passage of this Act; and patents shall issue for the tracts so entered as usual in entries of public lands.

SEC. 32. Nothing in the Act approved July 1, 1862, entitled "An Act to aid in the construction of a railroad and telegraph line from the Missouri River to the Pacific Ocean, and to secure to the Government the use of the same for postal, military, and other purposes," and the Acts amendatory thereof, shall be held to authorize the withdrawal or exclusion from settlement and entry, under the provisions of the pre-emption or homestead laws, the even-numbered sections along the routes of the several roads therein mentioned, which have been or may be hereafter located: Provided, That such sections shall be SEC. 28. Where a pre-emptor has taken the ini-rated at two dollars and fifty cents per acre, and tiatory steps required by existing laws in regard subject only to entry under those laws; and the to actual settlement, and is called away from secretary of the interior be, and is hereby, ausuch settlement by being actually engaged in the thorized and directed to restore to homestead military or naval service of the United States, settlement, pre-emption or entry, according to and by reason of such absence is unable to ap existing laws, all the even-numbered sections of pear at the district land office to make, before the land belonging to the Government, and now register or receiver, the affidavits required by withdrawn from market, on both sides of the the 13th section of the pre-emption act of 4th Pacific Railroad and branches, wherever said September, 1841, the time for filing such affida- road and branches have been definitely located. vit and making final proof and entry or location," shall be extended six months after the expiration of his term of service, upon satisfactory proof by affidavit, or the testimony of witnesses, that the said pre-emptor is so in the service, being filed with the register of the land office for the district in which his settlement is made.

SEC. 29. Wherever, prior to the passage of this Act, upon the lands heretofore designated as mineral lands, which have been excluded from survey and sale, there have been homesteads made by citizens of the United States, or per

SEC. 33. All actual settlers who have duly filed their declaratory statements under the pre-emption laws with the register of the proper local land office, upon the unsold lands now included within the limits of the late Sioux Indian reservation, in the State of Minnesota, shall be allowed two years, from and after the passage of this Act, within which to make proof and payment for their claims, in accordance with the provisions of the second and third sections of the Act approved March 8, 1863, providing for the disposal of said reservation.

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