Year: 1871

An important question, affecting the rights
of many settlers, has been settled by Com
missioner Drummond of the General Land
Office. In this section of the State perhaps
more than one-half the original settlers on
public lands have sold their improvements
before perfccting the title to the land. In
these cases the pre-emption laws furnish no
remedy where the present occupant and pur-
| chaser came into possession on odd sections
after the 18th day of September, 1862, the
date of the railroad grant. 1t will be seen
by the decision which we print below, that
where land had been filed on and improved,
Todd sections before that date, it was er-
cluded from the railroad grant-rcmained a
part of the public domain, and is now open
to redemption and purchase from the Gov
ernment, the same as if it was on even sec
tons, by who ever may be in possession of it
TO Registers and Receivers of District Land
Ofices-Gentlemen BY the terms OF the acts OF
Congress granting lands to aid in the construction
| OF railroads, there is exempted from the grants
lands to which the right of pre-emption had at
tached at the time when the grant may have be-
| come effective and the department has ruled
that the lands to which such pre-empton claim
| or right has attached, and such pre-emption sub
sequently abandoned, does not inure to the rail
road grant, but reverts to the United States.
A pre-emption filing of record on your books
constitute, of course, prlma facie evidence Of
pre-empton claim but it has been represented
that in many cases these filings have been made
without the preliminary settlement required by
the pre-empton laws; that such filings do not in
such cases constitute a pre-emption claim or
right; that such right can only exist where the
party has a legal status which he does not have
except by actual settlement prior to filing; and
that such Illegal filings cannot defeat the railroad
claim, where the companies can establish the il
legality of the filing, or, in other words, that
frand in TIL inception of the pre-empton claim
renders it absolutely null and void, and that it
does not therefore affect the right of the railroad


/ have carefully considered these propositions
and have reached the conclusion that filing
made with allegation of previous settlement, but
where it can be clearly shown that such settle
ment was not in fact made, is filing in deroga-
ton of law, and is fraudulent consequently not
pre- emption claim, or right recognized by law,
and does not withdraw the land from the right
of the road.


Therefore where applications may be made to
enter any such land, you will order hearings,
giving due notice of the time of hearing to the
original pre-emptor (where the claimis unexpir-
ed), the applicant and the railroad company,
when the company will have the opportunity to
prove the fraudulent character of the claim or
filing.


You will Also in all cases where the railroad
company seeks to select such lands, require them
to prove the fraudulent character of ali pre-emp-
ton claims or filings that may appear by your
records to have been in legal existence at the
date the right of the road would otherwise have
attached.


The proofs in all cases must be confined to the
action of the preemptor prior to the filing, as,
ii the filing or claim legal in its inception,
it withdraws the land from the grant.


There are other points on which filing may
be shown to have had illegal inception, as, for
instance, where the party foreigner at the
time or had previously enjoyed the right Of pre-
emption, and you will admit the consideration Of
these points where they may be alleged against
the pre-emption claim. o.


After a hearing is had in any case, you will
transmit the testimony, with your joint opinion
thereon. for the action Of this Office.