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Pre-Emption Right

ed, heirs and title

PRE-EMPTION RIGHT. The right given to settlers upon the public lands to purchase them at a limited price in preference to others.

It gave a right to the actual settler who was a citizen of the United States, or who had filed a declaration of intention to be come such, and had entered and occupied vvithout title, to obtain a title to a quarter section at the minimum price fixed by law, upon entry in the proper office and payment, to the exclusion of all other persons. It is an equitable title ; McAfee's Heirs v. Keirn, 7 Smedes & M. (Miss.) 780, 45 Am. Dec. 331; Pettigrew v. Shirley, 9 Mo. 683; U. S. v. Fitzgerald, 15 Pet. (U. S.) 407, 10 L. Ed. 785 ; and does not become a title at law to the land till entry and payment; Craig v. Tappin, 2 Sandf. Ch. (N. Y.) 78; Brown v. Throekmorton, 11 Ill. 529. It may be trans ferred by deed; Delaunay v. Burnett, 4 Gilman (Ill.) 454 ; and descends to the heirs of an intestate ; Hunt v. Wickliffe, 2' Pet. (U. S.) 201, 7 L. Ed. 397.

No person is entitled to more than one pre-emption right to public land ; and where a party has filed a declaration, he cannot file another for another tract, or for an ad dition to the first tract ; Sanford v. Sanford,

139 U. S. 642, 11 Sup. Ot. 666, 35 L. Ed. 290.

A person cannot acquire by his occupa tion only of unsurveyed lands of the United States, a right of pre-emption to them; Bux ton v. Traver, 130 U. S. 232, 9 Sup. Ct. 509, 32 L. Ed. 920. The word heirs as used in R. S. 2269, which provides for the issuance of a patent to the heirs of a deceased pre emptor, includes illegitimate children, when such can inherit it from their father in the state where he was domiciled and the land located ; Hutchinson Inv. Co. v. Caldwell, 152 U. S. 65, 14 Sup. Ct. 504, 38 L. Ed. 356.

By act of March 3, 1891, the pre-emption laws were repealed, saving the rights of claims already initiated ; 1 R. S. Sup. 942; and bona fide pre-emption claimants were permitted to transfer any part of their land for church, cemetery, and school purposes and for the right of way of railroads, canals and irrigation and drainage works.