RAILROAD GRANT-PRE-EMPTION FILING-PRACTICE.

MALONE v. UNION PACIFIC RY. Co.

The existence of a prima facie valid pre-emption filing at the date when the right of the road attached, excepts the land covered thereby from the operation of the grant.

The Commissioner of the General Land Office has authority to review a decision of his office sua sponte, and without notice to the parties, where such action is required to put the office in accord with its own records.

Secretary Vilas to Commissioner Stockslager, July 9, 1888.

I have considered the case of Wm. H. Malone v. The Union Pacific Railway Company, involving the N. of the NE. and N. of the NW. 4, Sec. 7, T. 4 S., R. 67 W., Denver, Colorado, on appeal by Malone from the decision of your office, dated March 26, 1884, rejecting his homestead application for said land.

The tracts in question are within the primary limits of the grant to the above-named company, Kansas Division (formerly Eastern Division), by the acts of Congress approved July 1, 1862 (12 Stat., 489), July 2, 1864 (13 id, 356), and July 3, 1866 (14 id., 79). The withdrawal from sale for the benefit of this road became effective in this district December 25, 1866; and the road was definitely located May 26, 1870.

The record shows that one Ward Dennison filed pre-emption declaratory statement No. 2636 for the S. of SE.Sec. 6, and N. § of NE. Sec. 7, T. 4 S., R. 67 W., September 21, alleging settlement September 20, 1866; that Thos. B. Morton filed pre-emption declaratory statement No. 3206 for the same land March 14, 1867, alleging settlement December 20, 1866; and that Edgar A. Farr filed pre-emption declaratory statement No. 2547 for the S. of lots 1 and 2 of SW. Sec. 6, and N. of lots 1 and 2 of NW. Sec. 7, same T. and R., Sept. 1, 1866, alleging settlement the same day. These filings were all canceled as the result of contests instituted against them by the railway company in 1872, that of Dennison being canceled May 9, 1874, that of Farr February 16, and that of Morton February 17, same year, and the land here in controversy was then awarded to the company. The notice to said preemptors of the pendency of said contest proceedings was by publication; none of them appeared, and the evidence adduced was ex-parte, being on behalf of said company only.

This land was listed by the company April 28, 1883; and on the 31st of August following Malone made his homestead application, which was "rejected, for the reason this tract is claimed by the Union Pacific Railway Company." From this rejection he appealed to your office, on the ground that said tracts being covered by filings prima facie valid at the date of the withdrawal, and also at the date the grant to the company took effect, were thereby excepted from its grant.

Upon consideration of this appeal, your office on the 16th of Novem

ber, 1883, overlooking the fact that the above mentioned claims of Morton and Farr had been rejected by it, their said filings canceled and the land in question awarded to the company in 1874, stated that said filings still remained of record and ordered a hearing to determine their validity at the date of the withdrawal and also at definite location of the road.

Your predecessor's attention having been called to these errors of record by letter from the attorneys for the road, he, thereupon, on the 26th of April, 1884, reconsidered and revoked the said decision of November 16, 1883, ordering a hearing in the premises, and approved the action of the local office in rejecting Malone's said homestead application.

From this last decision, Malone appealed to this Department, alleg ing two grounds of error, to wit: "First, Because after ordering a hearing in the case, he (the Commissioner) reconsidered his action and rescinded said order, without notice to the claimant or his attorney. Second, In refusing to allow Malone's application to enter the land."

As to the first ground of error, it is true that under the rules of prac tice a motion for review or reconsideration of a decision of your office, or of this Department, should not be entertained until after due notice to the opposing party. In this case, however, the review of the case by your office on March 26, 1884, was in effect a review sua sponte, and was made to put itself in accord with its own records. Consequently, as to the first alleged error the appeal is without merit. Parker v. Castleon review (4 L. D., 84).

As to the second ground of error, it is insisted on behalf of the ap pellant that at the time the grant to the company took effect, the lands in question were covered by prima facie valid pre-emption declaratory statements, and hence were excepted from the grant by the terms of the granting act. And second, that the proceedings by which said filings were declared by your office to have been illegal and void, were merely ex parte, and therefore no bar to a subsequent thorough and proper investigation where the facts in the case may be fully looked into.

At the outset we are met by the claim of the company that "This case is res adjudicata; that it is no longer a question open to discussion in this Department; that it has been finally determined and must be forever at rest here." And second if the case is still within the jurisdiction of this Department, then it is insisted that the said filings covering the tracts at the date of the withdrawal and also at the definite location of the road, were illegal in their inception and void; and hence did not except such tracts from the operation of the company's agent. The claim of the company that this case is res adjudicata is untenable. Against this contention, it is simply necessary to cite Starkweather v. Atchison, Topeka and Santa Fe R. R. Co. (6 C. L. O., 19) ; White v. Hastings and Dakota Ry. Co. (id. 54); Griffin v. Central Pacific R. R. Co. (5 L. D., 12); and Chas. W. Filkins (id., 49).

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Having ascertained that the case is not res adjudicata the next and only remaining question to be considered is: Were the said pre-emption filings of record at the date of the withdrawal and also at the definite location of the road, such pre-emption claims as served to except the tracts covered thereby from the operation of the grant to the railway company within the meaning of the third section of the said act of July 1, 1862, as amended by the fourth section of the said act of July 2, 1864, making the grant.

Though the precise question in its present shape may not have been previously decided, I am of the opinion that the general principles governing all cases of this character are pretty well settled.

Said third section as amended by said fourth section provides: That there be, and hereby is, granted to the said company, for the purpose of aiding in the construction of said railroad and telegraph line,

every

alternate section of public land, designated by odd numbers, to the amount of ten alternate sections per mile, on each side of said road, 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

*

Expressed in other language the precise question here to be determined is whether within the meaning of this section of the statute just quoted a pre-emption claim had attached to the lands in dispute at the time the line of the road was definitely fixed. An intelligent solution of this question necessarily involves a consideration of the pre-emption law, the use and purpose and the force and effect of the declaratory statement thereunder.

The original pre-emption law of September 4, 1841, allowed pre-emptions of surveyed lands, both offered and unoffered. In the case of unoffered lands no declaratory statement was required. In the case of offered lands the claimant was required within thirty days after his settlement to file his declaratory statement and within twelve months to make proof and payment for the land claimed by him. This declaratory statement was filed with the register and receiver, and operated to prevent any other sale of the land embraced within it than to the settler during the time allowed by law for him to make proof of his right of pre-emption and payment, unless it should be sooner proved and adjudged that he was not entitled to, or by failure to maintain compliance with the law had meantime lost, his pre-emption right. Its effect was so far to reserve the land from sale to others, a presumption of his preference right being raised by his filing, of such force that proof must be made sufficient to overthrow it before any other sale is permissible. Johnson . Towsley (13 Wall., 72). The pre-emption act of 1843 introduced a new feature into the pre-emption law, and required the settler on unoffered lands to file his declaratory statement within three months after his settlement, and to make proof and payment for the land embraced in his claim at any time before the commencement of the public sale which shall embrace the land claimed (1 Lester 374), (2 Id., 241). This was the condition of the pre-emption law, so far as is

ber, 1883, overlooking the fact that the above mentioned claims of Morton and Farr had been rejected by it, their said filings canceled and the land in question awarded to the company in 1874, stated that said filings still remained of record and ordered a hearing to determine their validity at the date of the withdrawal and also at definite location of the road.

Your predecessor's attention having been called to these errors of record by letter from the attorneys for the road, he, thereupon, on the 26th of April, 1884, reconsidered and revoked the said decision of November 16, 1883, ordering a hearing in the premises, and approved the action of the local office in rejecting Malone's said homestead application.

From this last decision, Malone appealed to this Department, alleg ing two grounds of error, to-wit: "First, Because after ordering a hearing in the case, he (the Commissioner) reconsidered his action and rescinded said order, without notice to the claimant or his attorney. Second, In refusing to allow Malone's application to enter the land."

As to the first ground of error, it is true that under the rules of practice a motion for review or reconsideration of a decision of your office, or of this Department, should not be entertained until after due notice. to the opposing party. In this case, however, the review of the case by your office on March 26, 1884, was in effect a review sua sponte, and was made to put itself in accord with its own records. Consequently, as to the first alleged error the appeal is without merit. Parker v. Castleon review-(4 L. D., 84).

As to the second ground of error, it is insisted on behalf of the appellant that at the time the grant to the company took effect, the lands in question were covered by prima facie valid pre-emption declaratory statements, and hence were excepted from the grant by the terms of the granting act. And second, that the proceedings by which said filings were declared by your office to have been illegal and void, were merely ex parte, and therefore no bar to a subsequent thorough and proper investigation where the facts in the case may be fully looked into.

At the outset we are met by the claim of the company that "This case is res adjudicata; that it is no longer a question open to discussion in this Department; that it has been finally determined and must be forever at rest here." And second if the case is still within the jurisdiction of this Department, then it is insisted that the said filings cov ering the tracts at the date of the withdrawal and also at the definite location of the road, were illegal in their inception and void; and hence did not except such tracts from the operation of the company's agent. The claim of the company that this case is res adjudicata is untenable. Against this contention, it is simply necessary to cite Starkweather v. Atchison, Topeka and Santa Fe R. R. Co. (6 C. L. O., 19); White v. Hastings and Dakota Ry. Co. (id. 54); Griffin v. Central Pacific R. R. Co. (5 L. D., 12); and Chas. W. Filkins (id., 49).

Having ascertained that the case is not res adjudicata the next and only remaining question to be considered is: Were the said pre-emption filings of record at the date of the withdrawal and also at the definite location of the road, such pre-emption claims as served to except the tracts covered thereby from the operation of the grant to the railway company within the meaning of the third section of the said act of July 1, 1862, as amended by the fourth section of the said act of July 2, 1864, making the grant.

Though the precise question in its present shape may not have been previously decided, I am of the opinion that the general principles governing all cases of this character are pretty well settled.

Said third section as amended by said fourth section provides:

That there be, and hereby is, granted to the said company, for the purpose of aiding in the construction of said railroad and telegraph line, .. every alternate section of public land, designated by odd numbers, to the amount of ten alternate sections per mile, on each side of said road, 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

Expressed in other language the precise question here to be determined is whether within the meaning of this section of the statute just quoted a pre-emption claim had attached to the lands in dispute at the time the line of the road was definitely fixed. An intelligent solution of this question necessarily involves a consideration of the pre-emption law, the use and purpose and the force and effect of the declaratory statement thereunder.

The original pre-emption law of September 4, 1841, allowed pre-emp. tions of surveyed lands, both offered and unoffered. In the case of noffered lands no declaratory statement was required. In the case of offered lands the claimant was required within thirty days after his settlement to file his declaratory statement and within twelve months to make proof and payment for the land claimed by him. This declaratory statement was filed with the register and receiver, and operated to prevent any other sale of the land embraced within it than to the settler during the time allowed by law for him to make proof of his right of pre-emption and payment, unless it should be sooner proved and adjudged that he was not entitled to, or by failure to maintain compliance with the law had meantime lost, his pre-emption right. Its effect was so far to reserve the land from sale to others, a presumption of his preference right being raised by his filing, of such force that proof must be made sufficient to overthrow it before any other sale is permissible. Johnson v. Towsley (13 Wall., 72). The pre-emption act of 1843 introduced a new feature into the pre-emption law, and required the settler on unoffered lands to file his declaratory statement within three months after his settlement, and to make proof and payment for the land embraced in his claim at any time before the commencement of the public sale which shall embrace the land claimed (1 Lester 374), (2 Id., 241). This was the condition of the pre-emption law, so far as is