12 Ark. 9 (Ark. 1851), Lytle v. State

Citation:12 Ark. 9
Opinion Judge:Oldham, J.
Party Name:LYTLE et al v. THE STATE OF ARKANSAS et al.
Judge Panel:Catron, J., Nelson, J. and Grier, J., dissented.Catron, J.
Court:Supreme Court of Arkansas
 
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Page 9

12 Ark. 9 (Ark. 1851)

LYTLE et al

v.

THE STATE OF ARKANSAS et al.

Supreme Court of Arkansas.

July, 1851

��������� The pre-emption act of May 29, 1830, conferred certain rights upon settlers upon the public lands, upon proof of settlement or improvement being made to the satisfaction of the Register and Receiver, agreeably to the rules prescribed by the Commissioner of the General Land Office.

���������The Commissioner directed the proof to be taken before the Register and Receiver, and afterwards directed them to file the proof where it should establish to their entire satisfaction the rights of the parties.

���������Where the proof was taken in the presence of the Register only, but both officers decided in favor of the claim, and the money paid by the claimant was received by the Commissioner, this was sufficient. The commissioner had power to make the regulation, and power also to dispense with it.

���������The proof being filed, there was no necessity of re-opening the case when the public surveys were returned.

���������The circumstance that the Register would not afterwards permit the claimant to enter the section, did not invalidate the claim.

���������The pre-emptioner had no right to go beyond the fractional section upon which his improvements were, in order to make up the one hundred and sixty acres to which settlers generally were entitled.

���������No selection of lands under a subsequent act of Congress could impair the right of a pre-emptioner, thus acquired.

���������This was a bill originally filed in the Pulaski circuit court, by Robinson Lytle and wife, Elias Hooper and wife and Nathan H. Cloyes, by Clayton, his guardian, heirs at law of Nathan Cloyes, deceased, against the State of Arkansas, the Real Estate Bank, the Trustees of said bank, Richard C. Byrd, James Pitcher, and others.

���������A demurrer was sustained to the bill, complainants appealed to this court, and the decision of the court below was affirmed. The case was then taken to the supreme court of the United States, by writ of error, reversed and remanded. The case was heard in this court before the Hon. Thos. Johnson, chief justice, Hon. W. S. Oldham, associate, and Hon. R. C. S. Brown, special judge, and was argued by Fowler, for the appellants, and Ringo & Trapnall and Watkins & Curran, contra. The State reporter has thought proper to postpone the publication of the case in our reports until the decision of the supreme court of the United States should be sent down. The facts will appear fro the statement made by the reporter of the supreme court of the United States, and the opinions of the courts. The State reporter would be pleased to publish the able arguments of the counsel in both courts, but it would require more space than can conveniently be given to the case in the volume.

���������Oldham, J.

��������� This was a bill filed by the appellants, as heirs at laws of Nathan Cloyes, deceased, against the appellees in the Pulaski circuit court. The bill charges that Nathan Cloyes, in his lifetime, by virtue of an act of the Congress of the United States of America, entitled " an act to grant preemption to settlers on the public lands," approved May 29th, 1830, as a seller and occupant of the public land, to-wit: on and of the north-west fractional quarter of section numbered two, in township numbered one, north of range numbered twelve west, in said county of Pulaski, prior to the passage of that act, being then in the possession thereof, and having cultivated some part thereof in the year one thousand eight hundred and twenty-nine, was and became thereby authorized and entitled to enter with the register of the Land office, for the district in which said fractional quarter of said section of land lay, by legal subdivisions, any number of acres not more than one hundred and sixty, or a quarter section, to include his improvement, upon paying to the United States the then minimum price of said land, provided such land should not have been reserved for the use of the United States, or either of the several States in which any of the public lands might be situated, or reserved from sale by act of Congress, or by order of the President, or appropriated for any purpose whatever; that being so authorized and entitled by said act of Congress, the said Nathan Cloyes, in his lifetime, on the 23d day of April, 1831, and whilst the said act was in full force, at the Land Office at Batesville, in said State of Arkansas, which was then the Land Office in and for the district in which said fractional quarter section of land was then situated, by his own affidavit, and by the affidavit and evidence of John Saylor, Nathan Maynor and Elliott Bussey, made proof of his settlement and improvement on and of the said fractional quarter section of land, and of his right to a pre-emption thereof according to the provisions of said act to the satisfaction of the Register and Receiver of said land district, agreeably to the rules prescribed by the Commissioner of the General Land Office, for that purpose; and on the 28th day of May, A. D. 1831, the said act of Congress being then still in full force, Hartwell Boswell, the Register, and John Redman, the Receiver of said land district, granted to the said Nathan Cloyes, then still living, the privilege of entering the said land upon which he had so established his right. The bill exhibits copies of the proofs of pre-emption, with the endorsement of approval thereon by the land officers.

���������The bill then charges that having made said proof, and been granted and allowed the privilege of entering said quarter section of land, said Nathan Cloyes, on the 28th day of May, A. D. 1831, made application to the Register of said Land Office at Batesville to enter the said northwest fractional quarter of section two, in township one, north of range twelve west, containing thirty acres and eighty-eight hundredths of an acre, and also the northeast fractional quarter of the same section, containing forty-two acres and thirty-two hundredths of an acre, and also the northwest and northeast fractional quarters of sections numbered one, in the same township and range, containing thirty-five acres and forty one-hundredths of an acre; the said fractional quarter sections containing together one hundred and eight acres and sixty one-hundredths of an acre, and in legal subdivisions, and then and there offered to pay the said United States, and tendered to the said Receiver, the minimum price for said land, to-wit: the sum of one hundred and thirty-five dollars and seventy-six and one-fourth cents, which said fractional quarter sections of land were not reserved at that time, or previously, for the use of the United States, or either of the several States in which any of the public lands were situated, nor were said lands reserved from sale by act of Congress, or by order of the President, or appropriated for any purpose whatever; but said Register refused to permit the said Nathan to enter said lands, and the Receiver refused to receive the payment so tendered therefor, because they alleged the said Nathan could only enter the fractional quarter section aforesaid, upon which he had settled and made his improvement, and because the public surveys of said four fractional quarter sections of land, which were all contiguous, had not been returned according to law, and that said surveys had not then been made, perfected and returned. That by virtue of an act of Congress, entitled " an act establishing land districts in the Territory of Arkansas," approved June 25th, 1832, the said fractional quarter sections of land were transferred to and made part of the Arkansas land district, the Land Office for which was located at Little Rock; and afterwards, in pursuance of law, the papers and evidence relating to said pre-emption right, filed in the Land Office at Batesville, were transferred to and filed in the said Land Office at Little Rock; that afterwards, by virtue of an act of Congress, entitled " an act granting to the Territory of Arkansas one thousand acres of land for the erection of a court house and jail at Little Rock," approved June 15th, 1832, and of an act entitled " an act to authorize the Governor of the Territory of Arkansas to sell the land granted to said Territory by an act of Congress, approved the 15th day of June, 1832, and for other purposes, approved March 2d, 1833, John Pope, then Governor of said Territory, selected illegally and by mistake, for the benefit of said Territory, among other lands, the said northwest fractional quarter of section numbered two as aforesaid, containing thirty acres and eighty-eight hundredths of an acre, and for which, as complainants are informed, a patent was afterwards issued to the said Governor of said Territory of Arkansas, and his successors in office for the purpose of erecting a court house and jail at Little Rock; that said John Pope, as Governor, afterwards, and by virtue of, or under pretense of, an act of Congress entitled An act granting a quantity of land to the Territory of Arkansas, for the erection of a public building at the seat of government of said Territory," approved March 2d, 1831, and " An act to authorize the governor of the Territory of Arkansas to select ten sections of land granted to said Territory for the purpose of building a legislative house for said Territory, and for other purposes," approved July 4th, 1832, selected the said southeast fractional quarter of section two, and the said northwest fractional quarter and northeast fractional quarter of section one, as unappropriated lands, for the purpose of raising a fund for the erection of a public building at Little Rock, and having assigned the same to one William Russell, a patent was issued therefor on or about the 21st May, A. D., 1844; that both of said patents were issued in mistake and in violation of law, and in fraud of the legal...

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