In 1850, Congress granted to the State of Illinois every
alternate section of land for six sections in width on each side of
a proposed railroad, and until the state could make its selection,
the land on either side of the track of the road was withdrawn from
entry or sale.
In 1852, the selections were made, and the land not selected was
offered for sale, and such as were not sold became subject to
In October, 1855, Clements began a settlement upon a portion of
one of these sections.
In November, 1855, Warner purchased the same land at private
sale at the land office.
In November, 1856, Clements claimed a preemption right, and the
register and receiver granted a certificate of purchase
Page 65 U. S. 395
The case is stated in the opinion of the court.
Page 65 U. S. 395
MR. JUSTICE CAMPBELL delivered the opinion of the Court.
The appellee filed this bill in chancery in the circuit court to
quiet his title to a portion of section thirty-three, in township
seventeen north, of range eight east, of the third principal
meridian, in the County of Champaigne, Illinois. By the Act of
Congress of the 20th September, 1850, for granting the right of way
and making a grant of land to the States of Illinois, Mississippi,
and Alabama, in aid of the construction of a railroad from Chicago
to Mobile, 9 statutes at Large 466, there was granted to the State
of Illinois, for the purpose of making the railroad described in
the title of the act, every alternate section of land designated by
even numbers, for six sections in width on each side of the road;
and in case any of these sections had been sold, or were subject to
a preemption claim, then the state was authorized to select from
the lands of the United States, contiguous to the tier of sections
before mentioned, so much land in sections and parts of sections as
should make up the full complement of land included in the
concessions in the act. The act further provided that the sections
and parts of sections of lands which, by the grant, might remain to
the United States within six miles on each side of the road, should
not be sold for less than double the minimum price of the public
lands, when sold. To comply with the requirements of this act, the
Commissioner of the General Land Office withdrew from entry, or
sale the land on either side of the track of the road, until the
State of Illinois could make the selections that were authorized by
Page 65 U. S. 396
were completed in 1852, and during that year the President of
the United States by a proclamation directed the sale of those
sections and parts of sections along the line of the road that had
remained to the United States, after the satisfaction of the grant
to Illinois. Such of the sections as were not sold became subject
to private entry. The section of land described in the plaintiff's
bill, a portion of which forms the subject of this suit, was one of
these, and was purchased at private sale at the land office, in
November, 1855, by a person under whom the plaintiff derives his
claim, and who has the usual receipt given by the receiver of the
The conflicting claim against which the appellee seeks relief
originates in an entry by the appellant in November, 1856, as
having a preemption right under a settlement began in October,
1855, before the date of the entry on which the title of the
appellee is founded. A patent issued to the appellant as having the
superior claim. The object of the bill is to reverse the decision
of the officers of the land office, and to obtain a relinquishment
of the legal title evinced by this patent, and the only question
presented is whether the land was the subject of a preemption right
in November, 1855.
The 10th section of the Act of the 4th September, 1841, confers
upon the beneficiaries of that act,
"who shall make a settlement in person on the public lands to
which the Indian title has been extinguished, and which shall have
been surveyed prior thereto, and who shall improve and inhabit the
same, as specified in the act, a right of preemption to one quarter
section of land."
Among the exceptions in the act to the exercise of this right of
preemption, is one that includes
"sections of lands reserved to the United States, alternate to
other sections granted to any of the states for the construction of
any canal, railroad, or other public improvement."
5 statutes at Large 466.
Subsequent acts of Congress extend the preemption privilege to
lands not surveyed at the time of the settlement, and confer
privileges upon settlers on school lands, and on lands reserved for
private claims. 5 Stat. 620, sections 3, 9.
Page 65 U. S. 397
In 1853, the preemption laws, as they now exist, were extended
to the reserved sections of public lands along the lines of all the
railroads, wherever public lands have been granted by acts of
Congress, in cases where the settlement and improvements had been
made prior to the final allotment of the alternate sections to such
railroads by the General Land Office. 10 Stat. 244.
In the administration of these laws, the Executive Department of
the government has decided that after the restoration to market of
the lands embraced in the exception we have quoted from the act of
1841, and when they have become subject to entry at private sale,
they lose their character as reserved lands, and will then be
subject to the privileges of preemption in favor of settlers. The
policy of the federal government in favor of settlers upon public
lands has been liberal. It recognizes their superior equity to
become the purchasers of a limited extent of land, comprehending
their improvements, over that of any other person.
By the act of 1841, the preemption privilege in favor of actual
settlers was extended over all the public lands of the United
States that were fitted for agricultural purposes and prepared for
market. Later statutes enlarged the privilege so as to embrace
lands not subject to sale or entry, and clearly evince that the
actual settler is the most favored of the entire class of
purchasers. No act of Congress has defined the meaning of the term
"reserve," as applied to lands in these various acts, nor
determined explicitly when these alternate sections lose their
character as reserves. But all other public lands fitted for
agricultural purposes, after they have been offered at public sale,
are affected by the privilege of the actual settler to have the
preference of entry. No reason of public policy exists to exclude
this class of public lands from the operation of the same law,
under the same conditions. No violence is done to the language of
the act by limiting the exception to the temporary withdrawal of
the lands from the market, and the liberal policy of Congress in
favor of the actual settler is better accomplished by a restrictive
rather than extensive interpretation
Page 65 U. S. 398
of the exceptional clause in the act. We therefore sanction the
construction adopted in the land office.
The circuit court overruled the demurrer of the defendant to the
bill, and made a decree in conformity to the prayer of the bill.
This is error.
The decree of the circuit court is reversed, and the cause
is remanded to the circuit court, with directions to dismiss the
bill, with costs.