Did You Know?

It is well known that homesteading was a very important way that people obtained title to federal land for "free" after paying certain filing fees and meeting certain requirements.  But it was not the only way that occurred throughout the country.  Another was under the much less known "Small Holding Claim" law of 1891, the subject of this column.  

On March 3, 1891, a major piece of federal legislation became law that not only changed certain existing federal land laws but also broke new ground for allowing a different way to obtain "free" ownership of federal land in some locations without homesteading it.  One of the issues that the 1891 law tackled was how to deal with private land claims in 6 western states and territories where people had settled on unsurveyed federal land without prior authorization.  The states and territories involved were only: Arizona, Colorado, Nevada, New Mexico, Utah, and Wyoming.  But to best understand why this new (and little known) 1891 law was passed and applied only to these 6 places, it is first important to realize that the March 3, 1891 legislation also repealed various existing Preemption laws going back to pre-1862 Homestead Act days.  Under those laws, "squatters" had the first right to obtain title to land on which they had settled despite not having filed a prior federal claim for it or otherwise obtained authorization for settling on it.  

So, while the Preemption laws were repealed on March 3, 1891, the same 1891 law did something new and different to help at least some "squatters" in 6 western states and territories gain title to "their" unsurveyed land in a way other than by homesteading.  So why was this "other way" needed in the 6 states that it applied to?  It was because successful homesteading in some parts of Arizona, Colorado, New Mexico, Nevada, Utah, and Wyoming was not always possible due to limited rainfall preventing  sustainable agricultural development of the land.  Thus, the new 1891 law recognized that fulfilling agricultural requirements of homesteading on some of the arid lands in those 6 states or territories would not have been possible and instead provided an alternate way to gain title to the land.  But the 1891 law set up its own interesting requirements, and surprisingly one on residency was surprisingly different and harder to meet than residency requirements to qualify for a homestead.

Under the new 1891 law, the amount of land any one person could obtain could not exceed 160 acres (the same amount for most homesteaders in 1891).  But the settler had to meet this novel requirement:  "...the person has, through himself, his ancestors, grantors, or their lawful successors in title or possession, been in continuous adverse actual bona fide possession, residing thereon as his home, of any tract of land or in connection therewith of other lands ... for twenty years next preceding the time of making such a survey" of the land to establish boundaries on the claim.   But there was also a second notable difference compared to homesteading.  Under the 1891 law, no agricultural development of the land was needed for patent.   Further, the new 1891 law also established a special court for private land claims that was involved with judging the validity of these "small holding claim" tracts and the survey boundaries for them. Thus, it was work not given to the General Land Office, which otherwise made judgments about the validity of homestead claims.

By 1899, a report by the Commissioner of the General Land Office included a statement that there had been "upward of 4,000 small holding claims" filed under the 1891 act, with many more thousands filed later.  The 1891 law remained in force for some years and allowed people even after 1891 into the mid-20th century to make such claims for these "small holding claim" tracts.   That meant if someone, for example, had personally settled on unsurveyed federal land without authorization in 1895 in one of the 6 states or territories to which the law (and later amendments) applied, and personally remained residing on the land continuously for 20 years, that person would quality to obtain title to the land under this "Small Holding Claim" law of 1891 as early as 1915.  And if the person could also add in the proven residence of ancestors or other grantors or their lawful successors to which the settler had legal rights, the claim could qualify for patent even sooner.  However, from my research on these claims, it appears that many took longer than the minimal 20 years to patent, perhaps due to the volume of work these claims placed on the special court of private land claims.  Also, there may have been delays in surveying all these thousands of tracts, which was required before patents could be issued.  In New Mexico, perhaps tens of thousands of these claims were made and many thousands were successful, so it is easy to imagine that the workload for the special court created under the 1891 law could take many years to address as well as the workload of surveyors.

Interestingly, I have also found that while many thousands of these claims were successfully made and patented in New Mexico, only three (all in Arizona) were successfully patented in any other state or (then) territory.  So, while the law was passed to also include Colorado, Nevada, Utah, and Wyoming, as well as New Mexico and Utah, no "small holding claim" tracts were patented in those 4 states.  Why that was must be yet another intriguing story still to be researched in the history of land laws of the homesteading period.