No. 407.

II. VERSUS HOMESTEADS.

CIRCULAR.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE,

Washington, D. C., August 15, 1872.

TO REGISTERS AND RECEIVERS OF DISTRICT LAND OFFICES.

GENTLEMEN:-Under the provisions of the acts of Congress granting lands in aid of construction of railroads, wherein there are exempted from such grants the lands to which a valid right of Pre-emption or Homestead had attached at the time when the grant may have become effective, the Honorable Secretary of the Interior has ruled that the lands to which such Pre-emption or Homestead claim or right had attached, and the claim has subsequently been abandoned, do not inure to the railroad grant, but revert to the United States.

A Pre-emption or Homestead claim of record is of course prima facie evidence of a valid right, yet it may occur that such claim had a fraudulent inception, or that the claimant had given up and actually abandoned his claim at the date when the grant became effective. In such cases the Department holds that there exists no valid Pre-emption or Homestead claim, and that the land inures to the grantee. It must be understood, however, that a railroad cannot take land covered by a Homestead or Pre-emption unless it is clearly shown that the same was abandoned by the party at the time the grant attached.

In view of these rulings, the following is communicated for your information and government, to the end that the rights of all parties may be protected and the spirit of the grants fully complied with :

First. In relation to Pre-emption claims: The Pre-emption laws require that a person must be over the age of twenty-one years, or the head of a family, a citizen of the United States, or a person who has filed a declaration to become such, &c.; and also that he must have settled upon the land claimed, thus imposing conditions as prerequisite to the filing of a claim.

Second. In relation to the Homestead claims: The law requires that a person must be over twenty-one years of age or the head of a family, a citizen of the United States, or one who has declared his intention to become such, &c., and under the first and third sections of the amendatory act of March 21, 1864, the persons claiming the benefit of said sections must make settlement upon the tracts before they can obtain the benefit of said sections. Therefore, as the fraudulent character of a Pre-emption or Homestead claim in its inception may be brought in question, it is right that the parties in interest should have an opportunity, in all cases, to be heard. With this view you are required

Third. When application is made by the agents of a railroad company to select lands on which Homestead entries or Pre-emption claims are of record and uncancelled, but which they allege were either fraudulent in their inception or abandoned prior to the time when the grant to the railroad attached; or where parties apply to contest and set aside Homestead entries or Pre-emption claims on lands withdrawn for railroads, you will order hearings to determine the rights of the parties, giving them at least thirty days' notice in writing, of the time and place of such hearing, if their whereabouts are known, or if they can be reached by such notice. If they cannot be found you will cause such

notice to be given by publication at least once a week for four consecutive weeks in the newspaper having the largest circulation in the vicinity of the land. Where application is made by a railroad company to select land on which Homesteads or Pre-emptions have been heretofore made and cancelled for abandonment or relinquishment, and no other claim has since been allowed thereon by direction of this office, you will permit the company to file with their applications evidence of the fact that the land was abandoned or relinquished prior to the date when the right of the railroad attached under the grant.

Fourth. When, by direction of this Office under its interpretation of the rulings of the Department, second entries or filings have been allowed within railroad limits upon lands previously covered by Homesteads or Pre-emptions, after the cancellation of the same, such second entries or Pre-emptions will not be affected by this modification of previous decisions, but will, upon proof of compliance with the requirements of the Homestead or Pre-emption laws, be approved and patented. Where hearings have heretofore been had under our circular of November 7, 1871,* you will report the cases, and they will be decided in accordance with the rules and principles of said circular; but if hearings have been ordered and not yet had, you will revoke the orders and proceed under this circular. At the hearings your inquiries should be directed to the personal qualifications of the original claimant, and his compliance with the law in the matter of settlement and cultivation. You will be careful that all material facts are brought out, and, if necessary to this end, you will yourselves examine and question the witnesses. The record of the hearing should be prefaced by evidence of notice to all parties in interest, as required in other contested cases. Parties initiating a contest must make provision for defraying the expenses thereof, but when the case comes before you for trial, you can apportion the costs according to the equities of each case. At the close of the hearing please forward all the papers to this Office, with your joint opinion thereon.

Your particular attention is called to the fact that in some of the earlier railroad grants, lands covered by Homestead claims which may be subsequently cancelled are not excepted from the operation of the grant. Therefore, in such cases the tracts inure to the grant, and you will recognize no applications for such lands by other parties, but will pay due regard to the rights of the grantees.

You will in no case allow a Pre-emption filing or Homestead entry on the class of lands covered by these regulations, without instructions from this Office.

Very respectfully,

WILLIS DRUMMOND, Commissioner. Approved: C. DELANO, Secretary of the Interior.

See No. 394.

* No. 420.

No. 408.

CIRCULAR.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Washington, D. C., Sept. 8, 1873.

GENTLEMEN:-In my official circular of August 15, 1872, it is provided as follows:

"Where application is made by a Railroad Company to select land on which Homesteads or Pre-emptions have been heretofore made and cancelled for abandonment or relinquishment, and no other claim has since been allowed thereon by direction of this office, you will permit the company to file with their applications evidence of the fact that the land was abandoned or relinquished prior to the date when the right of the railroad attached under the grant."

By the operation of law limiting the period within which proof and payment must be made in pre-emption cases, such claims are constantly expiring, the settler not appearing within such time to consummate his entry. These expired filings are classed with those actually abandoned or relinquished, and fall within the above instructions, unless explicit allegations are filed tending to show good faith in the settler until the definite location of the road, and that the failure to comply with the law dates from a subsequent period. In these latter cases, hearings are required to ascertain the facts.

This office has recently been flooded with ex parte affidavits, for. warded from district offices, concerning this class of lands, and purporting to have been filed by various parties, agents and attorneys of railroad companies, for the purpose of proving abandonment by pre-emption claimants prior to the definite location of their respective roads.

By proper attention to the instructions in said circular you will observe that it is no part of your duty to receive these ex parte statements when presented in this irregular manner. They constitute no part of the files required for your office or for the General Land-Office, except when presented with the proper lists embodying the "application to select" the lands as a part of the grant to the railroad company.

The clerical force of this office is too limited to permit an examination in this desultory, irregular way, of the thousands of affidavits, and hundreds of letters of transmission, inquiries of attorneys and agents respecting the same, and other papers connected therewith, thus received.

You will, therefore, refuse hereafter to receive such papers, and if they reach you by mail you will return them to the parties offering them-except when filed to accompany regular applications to select, with proper lists of the lands to which they relate, as provided for in the circular referred to.

Those already transmitted to this office will be closed out by examination.

Those sent hereafter will be returned without action, unless expressly relating to lands included in lists already on file, and filed for the purpose of clearing such lists from suspension, in which case they may be received by you and transmitted, with a particular specification of the lists to which they refer.

Very respectfully,

Register and Receiver.

WILLIS DRUMMOND, Commissioner.

See No. 394.

No. 409.

BOYD v. BURLINGTON & MISSOURI RIVER R. R. CO.

At the time the line of the railroad was definitely fixed, Hinks had a homestead claim on the land in controversy.

After that he abandoned his claim, and Boyd made application to enter the tract.

Held-That the land reverted to the United States upon the abandonment by Hinks, and was subject to entry by Boyd.

Cites: 13 Stats., 364. Wolcott v. Des Moines, 5 Wallace, 681. Opinion of Attorney General Akerman of March 7th, 1871, in the case of Sargeant et. al. v. Western R. R. Co. (No. 432.)

DEPARTMENT OF JUSTICE,

OFFICE OF ASSISTANT ATTORNEY GENERAL, Washington, April 28, 1871. SIR:-As requested by you I have considered the appeal of Samuel M. Boyd from the decision of the Commissioner of the General LandOffice, and will now proceed to state the conclusion to which I have arrived. The facts are these: Mr. Boyd has made an application to enter the south-west quarter of section 35, Township 10 North, Range 6 East, being one of the subdivisions of an odd-numbered section within the limits of the grant to the Burlington & Missouri River Railroad, in the State of Nebraska.

The grant is found in section 19, act of July 2d, 1864, 13 Stats., 364, hereinafter quoted.

It is admitted by all parties contesting Boyd's right of entry, that at the time the line of said road was definitely fixed, one John C. Hinks had a homestead claim on said land, and that he abandoned this claim in a short time after the road was located and before the application of Boyd.

It will thus be seen that the only question in the case is this: Did the land after Hinks' abandonment belong to the Railroad or revert to the Government?

I think the latter. I think it is excluded from the grant by its terms. The language is "that there be and hereby is granted to said Burlington and Missouri River Railroad Company every alternate section of public lands (excepting mineral lands as provided in this act) designated by odd numbers, to the amount of ten alternate sections per mile on each side of said road on the line thereof, and not sold, reserved, or otherwise disposed of by the United States, and to which a Pre-emption or Homestead claim may not have attached at the time the line of said road is definitely fixed."

The plain meaning of this enactment is that ten alternate sections are granted to this road for every mile it may construct; but these sections must be such as have not been sold or reserved for any purpose, or otherwise disposed of by the United States, or subjected to any preemption or homestead claim; and that there may be no doubt as to the time when this pre-emption or homestead claim shall exclude the lands from passing to the company, it is provided that it shall be "at the time the line of road is definitely fixed."

If the homestead claim has attached at the time the line of the road is definitely located, then the railroad is excluded. It would seem to be immaterial what became of the claim after that, whether it was perfected or abandoned.

In the case of Wolcott v. Des Moines Company, 5 Wallace 681, the Supreme Court held that lands which had been reserved by the proper

officers of the Land-Office for the improvement of the Des Moines River was excluded from the subsequent grant to the State of Iowa for the purpose of aiding in the construction of said road, although such land was not included in the grant for the improvement of the Des Moines River, and therefore was reserved upon an erroneous construction of the law. This is a very strong case, and seems to me to be decisive of the principle involved in the one now, under consideration. See also opinion of Attorney General Akerman of March 7, 1871, in the case of Sargeant et al. v. The Western Pacific Railroad Company.

These authorities confirm me in the construction that I should otherwise be disposed to adopt, and lead me to hold that the land in controversy was excepted from the grant to the railroad, and was therefore subject to entry by Boyd. I advise reversal of the decision of the Commissioner of the General Land-Office.

Very respectfully, your obd't servant,

WALTER H. SMITH, Assistant Attorney General.

HON. C. DELANO, Secretary of the Interior.

Concurred in by the Secretary, April 28, 1871.

No. 410.

BOYD v. BURLINGTON AND MISSOURI RIVER R. R. CO. (Explanatory.) Held-That the rule in the Boyd case applies to lands within the "indemnity limits."

DEPARTMENT OF JUSTICE,

OFFICE OF ASSISTANT ATTORNEY GENERAL,

Washington, July 21, 1871. SIR: I have examined the question submitted by the letter of the Commissioner of the General Land-Office, of the date of July 10, 1871. The Commissioner desires to know whether the principle decided in the case of S. M. Boyd v. The Burlington and Missouri Railroad, will apply to lands lying within the "indemnity limits" of grants to railroads. In that case the Department held, in accordance with my advice, that lands to which a homestead had attached at the time the line of the road was definitely located, were excluded from the grant, and that upon a subsequent termination of the homestead claim they reverted to the Government, and did not go to the railroad. The question put by the Commissioner does not relate to the grant to any particular road, but is a general one. I should have preferred to have had it relate to some particular road, and to the grant made to that road, as the language employed in making the grants to the several roads is not always uniform, although it is generally so.

In answering this question, I shall assume that it relates to grants made in the language usually employed.

I am of opinion that the rule applied to lands "in place" should be applied to the lands within the "indemnity limits."

Very respectfully,

W. H. SMITH, Asst. Atty. General.

HON. C. DELANO, Secretary of the Interior.

Opinion adopted by the Acting Secretary, July 21, 1871.