It is assumed that this provision applies to the lands in question as they are of the class therein referred to. It will be seen by reference to a tracing showing the northern tier of sections in T. 78 N., R. 31 W., Iowa, that as much as 400 acres could be included in one entry. It is an established rule of this office, that where the excess above 160 acres is less than the deficiency would be, should a subdivision be excluded from the entry, the excess may be included, and the contrary, when the excess is greater than the deficiency. are not entitled to the benefits of Section right was not assignable, that the application should be made in person, and that in Counsel for the present holder of the all cases the applicant should be required If this be not so, then it follows that certified right of French alleges that the is- to make oath that he has not made, or any number of acres, under like circum-suance of the certificate by your office was agreed to make, any sale, transfer, pledge, stances, may be embraced in an entry, conclusive; that the cancellation of the or other disposition of his right to make which certainly was not contemplated by entry, without any new facts, and without the entry on the land which he applies to the homestead law. a re-hearing, or notice to the party in inter- enter. This decision was modified March est, was error, and that the present owner 10, 1877, so as "to allow entries to be made of the scrip purchased the same for a valu- by the agents or attorneys of the party able consideration, after the seal and cer- originally entitled to the entry, but only tificate of your office had been attached to after the claim has been presented to you, the same, without notice of any defect, and and certified as valid, and that the party is therefore entitled to protection as an in- is entitled to the amount of land claimed nocent purchaser. under such instructions and regulations as you may prescribe." (Copp's L. L., 1882, p. 478.) By reason of the applicant being excused from personal attendance at the district office, these claims found their way legitimately into the hands of attorneys and agents, but many of them were in effect assigned by means of two powers of attorney, one to locate, and one to sell, and were thus treated as properly subject to sale and transfer under cover of an assumed agency; but this action did not change the fact that the soldier's right was not assignable. The whole transaction in your office, from the application for a certificate to the issuance of a patent, was in the name of the soldier, and if, by treating non-assignable rights as assignable, other parties became thus possessed of the soldier's right; they took it subject to any defect that would have defeated the claimin the hands of the soldier. The area of lots one and two is 150 15100 acres, only 9 85-100 acres less than 160 acres. Add to the lots either of the two forties, comprising S of the N. E., and the area is 190 15-100 acres, an excess of 80-100 acres, and adding the remaining 40 acres as Mr. Sayles did-the excess is 70 15-100 acres. But if either of the lots and the S. of the N. E. were embraced in the entry, then the deficiency would be less than 5 acres. It will be observed that the assignment of error is based on the assumption that the soldier's right to make an additional homestead entry is assignable, and that the rules which govern paper of a negotiable character, are applicable in this case; but this theory is without foundation in law. The right to make entries of this character was conferred by the act of June 8, 1872, (17 Stat., 333,) which provided in Section 1 "That every private soldier and officer, who has served in the army of the United States during the recent rebellion for ninety days, or more, and who was honorably discharged, and has remained loyal to the government * * * *shall, on compliance with the provisions of an act entitled 'An act to secure homesteads to actual settlers on the public domain,' and the acts amendatory thereof, as hereinafter modified, be entitled to enter upon and receive patents for a quantity of public lands (not mineral) not exceeding one hunSoldier's Additional Homestead Entry.-Certifi-dred and sixty acres. * * * * * cate Inadvertently Issued.-Good Faith.-Non It is readily observed that the entry can easily be made to approximate 160 acres under the rule above announced. Approved by Secretary Teller, Sept. 17, 1883. WILLIAM FRENCH. assignable.—Where a certificate issues improperly and inadvertently stating that a certain party is entitled to make an additional homestead entry when he is not so entitled, the entry made thereunder should be canceled. As the right to make a homestead entry is a personal right, the assignment of such certificate cannot be recognized. A purchaser takes it subject to any defects, and cannot be treated as "an innocent purchaser." ACTING SECRETARY JOSLYN to Commissioner McFarland, August 30, 1883. (S. V. P.) I have considered the case presented on appeal from your decision of September 12, 1882, cancelling the additional homestead entry made in the name of William French, for the W. of the S. E., and the S. W. of the N. E. of Sec. 17, Tp. 16 N., R. 1 E., H. M., Humboldt, Cali fornia. It appears that your office, March 8, 1878, issued a certificate to William French, showing that he was entitled to make an additional homestead entry not exceeding one hundred and twenty acres, and it also appears that such right was based on military service performed in the "Missouri Home Guard," by the said French. July 5, 1878, application to enter the above-described land was granted by the local office, and final certificate No. 204 issued, which was cancelled by your order of September 12, 1882, on the ground that members of the "Missouri Home Guard" "Sec. 2. That any person entitled under the provisions of the foregoing section to enter a homestead, who may have heretofore entered, under the homestead laws, a quantity of land less than one hundred and sixty acres, shall be permitted to enter under the provisions of this act, so much land contiguous to the tract embraced in the first entry as, when added to the quantity previously entered, shall not exceed one hundred and sixty acres." The section last quoted was amended March 3, 1873, (17 Stat. 605,) so as to read as follows: "Any person entitled under the provisions of the foregoing section to enter a homestead, who may have heretofore entered under the homestead laws a quantity of land less than one hundred and sixty acres, shall be permitted to enter so much land as, when added to the quantity previously entered, shall not exceed one hundred and sixty acres." In this case, your office, through inad vertence, certified that French was entitled to enter one hundred and twenty acres of land, but inasmuch as the military service upon which such right depended had been performed in a State organization, and French had never been mustered into or discharged from the service of the United States, such certificate was absolutely void, and conferred no right on him or any purchaser thereof. In the hands of French the certificate was worthless, and it was equally so in the possession of any one substituting himself for French. The transfer of a right that never existed could not operate to create an obligation on the part of the government, where no authority for the transfer had been created by law. This Respecting notice to the party in interest, it appears that your office took up this case in the regular course of business, and having concluded that the entry should be cancelled, you informed the Register and Receiver of your conclusion. action of your office is, however, subject It will thus be seen that the right was a to appeal, and the party in interest has personal right, founded upon military ser- availed himself of his right, the case vice, and granted to soldiers who had, in being now regularly before this Departpart, exercised their rights under the gen- ment on appeal. The right of the party eral homestead laws. By nothing in the affected by your decision to have a full act itself, the amendment thereto, or sub- hearing has in no manner been abridged, sequent legislation, has this enlarged privi- all the facts necessary to a consideration lege of the soldier been made assignable. of the case being fully before this DepartThis Department held, May 17, 1876, ment. (Copp's L, L., 1882, p. 486,) that such Your decision is therefore, affirmed, TIMBER LANDS AND TIMBER ing. CULTURE. BIVINS VS. SHELLY. A relinquishment after contest has closed can have no effect. The entry of Shelly will be canceled, and Bivins will be permitted to make entry of the tract in question. The fact that Shelly filed a relinquish- pairing the house, furnishing it for his ocment of his entry August 9, 1883, does cupancy, and cultivating a garden. not affect the status of this case; for the During the contest the defendant offered reason that such act was performed subse- in evidence his declaration of intention to Illegal contest-Second contest while first is pend-quently to the closing of the case before become a citizen of the United States, ing-Relinquishment.-Where the first contest against a timber culture entry is not sup- the local officers. (John Powers, Copp's which was objected to for the reason that ported by law, another contest by another L. O., February, 1882.) it was imperfect and not duly authentiparty may be initiated against the same entry cated. The Register and Receiver renotwithstanding the first contest is still pendfused to consider the document as in evidence, but forwarded the same with the evidence, and granted the defendant thirty days' time in which to procure and file a properly authenticated copy of the record, to which rule the plaintiff excepted. It appears that on September 6, 1882, being within the thirty days and more than a month prior to the decision made by the local office, the defendant filed in the local office an authenticated copy of the record, showing that he declared his intention to become a citizen April 14, 1874, and it is now urged by plaintiff's attorney that the admission of the same in evidence was error. ACTING SEC'Y JOSLYN to Commissioner Mc Far- I have considered the case of Burton Bivins vs. Terry Shelly, involving timber culture entry No. 514, covering the N. E. of Sec. 5, Tp. 151, R. 44, Crookston district, Minnesota, on appeal by Bivins from your decision of May 13, 1883, dismissing contest. It appears that Shelly made timber culture entry of the tract in question May 23, 1878, and that one William H. Foote filed an affidavit of contest July 1, 1880, and was allowed to proceed to contest. On appeal, this department dismissed the case July 18, 1883, on the ground that as Foote did not file an application to enter the land at the date of initiation of contest, he could not dispute the claim of Shelly. (Bartlett vs. Dudley, Copp's L. O., February, 1883.) Bivins filed application and contest was initiated against Shelly, January 9, 1883, and on the day appointed for the trial he appeared and gave proof to the effect that Shelly had not complied with the requirements of the law relating to timber culture entries, to which Shelly made no defense. The District Officers held the entry forfeited, and he took no appeal. You decided that Bivins should not have been allowed to make contest, on the ground that Foote had previously contested the entry of Shelly which contest was still pending. The right of Bivins to make application to enter the land is statutory. Section 3 of the act of June 14, 1878, (20 Stat., 113,) provides, "That if at any time after the filing of said affidavit and prior to the issuing of the patent for said land, the claimant shall fail to comply with any of the requirements of this act, then and in that event, such land shall be subject to entry under the homestead laws, or by some other person under the provisions of this act: Provided, That the party making claim to said land, either as a homestead settler or under this act shall give, at the time of filing his application, such notice to the original claimant as shall be prescribed by the rules established by the Commissioner of the General Land Office: and the rights of the parties shall be determined as in other contested cases." THIBERT VS. ANDREWS. Act of June 3, 1878.-Evidence of Declaration of I have considered the case of Mitchell Thibert made application to purchase said land April 1, 1882, under the act of June 3, 1878, for the sale of stone and timber lands in certain States and Washington Territory. Andrews filed his delaratory statement No. 5,432 April 12, 1882, alleging settlement March 31, 1882. Contest was initiated by Thibert, and the trial commenced August 17, 1882, the decision of the local oflice being rendered October 12, 1882. The act of June 3, 1878 (20 Stat. 89), provides for the sale of stone and timber lands, valuable chiefly for timber and stone, and unfit for cultivation, under several limitations, one of which is, "That nothing herein contained shall defeat or impair any bona fide claim under any law of the United States;" and in this case the only question to be determined is whether Andrews' pre-emption claim was such as would except the land from the operation of said act. It is shown by a fair preponderance of the evidence that defendant entered upon the land March 31, 1882, in company with one Savage, who was in his employ, and that they cleared a place for a house, and for a landing from the river, four or five rods wide, and running back from the river about seven or eight rods. Having made this clearing, defendant then, on the same day, posted a notice in the clearing Any regulation in contravention of such to the effect that he claimed the land as a right must be held inoperative. (Original pre-emptor, alleging settlement on that Company, etc., v. Winthrop Mining Company, 60 California, 631.) The contest of Foote not being supported by the law was without jurisdiction, and cannot defeat the legal application of Bivins. day. He followed up his settlement by I fail to see in what manner the rights of the plaintiff have been abridged in this matter. On the same day that defendant. filed the authenticated copy of the record, he furnished plaintiff's attorney a duplicate of the same, and ample opportunity was thus presented for attacking defend ant's qualifications as a pre-emptor in the subsequent proceedings. And it has always been held as matter of right in this department that the record evidence of such declaration may be supplied at any time prior to final disposal of the land and when so filed is conclusive as to the fact of qualification in that regard. Having thus far complied with the requirements of the law, and being qualified as a pre-emptor, Andrews has a superior right to the land. Your decision is therefore affirmed. PRE-EMPTION. Evidence-Settlement - Filing.-Objections to the admission of certain court transcripts and certain depositions considered and rejected.. In view of the agreement made and the defendant's forcible intrusion the land is awarded to plaintiff. A filing may be amended to cover the land actually settled upon. ACTING SECRETARY JOSLYN to Commissioner McFarland, August 30, 1883. (D: A. McK.) I have considered the case of H. W. Sanford vs. C. W. Sanford, involving the N. E. of the S. E. of Section 9, township 24 S., range 12 W., Roseburg, Oregon, on appeal by the plaintiff from your decision of July 8, 1882, awarding the land to the defendant. It appears that the township plat, embracing said section, was filed July 31, 1879; that on September 8, 1879, C. W. Sanford filed declaratory statement No. 3600, covering said tract, alleging settlement September 1, 1870; that on September 27, 1879, H. W. Sanford filed declaratory statement No. 3615, not covering said tract, alleging settlement May 20, 1871, and that on subsequent application your office 1883.] COPP'S LAND-OWNER. permitted an amendment of the latter's filing, so as to include said tract. or By Section 4, Act of September 27, on it, on the ground that it was plaintiff's land, but that he built there notwithstand- 1850 (9 Stat., 496), there was granted to a ing said notice, and has resided there since; married settler on the public lands in Orand that the plaintiff has never ceased to egon Territory, resident therein on regard and to treat said tract as his pre- before December 1, 1850, the section of emption claim, whilst the defendant occu- land embracing the tract actually occupied it prior to 1875 subject to the contract pied and cultivated by him for four conabove referred to, and since 1875 has never secutive years, without limitation as to the and cultivation should commence (see also occupied it as a claim with the plaintiff's date when such settlement or occupation consent. section 12), the grant taking effect upon his conforming to the provisions of the act (Hall vs. Russell, 101 U. S., 503). Section 5 granted certain lands, on similar conditions, to certain settlers coming of tween December 1, 1850, and December 1, age or emigrating to the Territory be1853, which limitation was extended to December 1, 1855, by Section 5, Act of February 14, 1853. Section 6 provided that "within three months after the survey has been made, or, where the survey has been made before the settlement, then There are two preliminary questions to be On these findings, it is evident that C. RAILROADS. VS. PEONE. COMPANY ions of the Oregon donation acts and the date Oregon Donation Claim. In view of the provisof definite location of the railroad past the land in question, the claim of the settler is allowed. SECRETARY TELLER to Commissioner McFar- within three months from the commencement of such settlement, each of said settlers shall notify the Surveyor-General of the precise tract or tracts claimed by them stood for some three years, prior to or respectively under this law." So the law during which Peone's settlement was made, he having resided in the Territory before December 1, 1850, and being otherwise qualified. depositions would be taken, as required by the commission. It appears that the proceedings were regular, that defendant's counsel duly received a copy of the names of the witnesses and of the interrogatories, that he failed to file cross-interrogatories I have considered the case of the Northwithin the period provided, and that he has not objected to the competency of the ern Pacific Railroad Company vs. Baptiste witnesses. The rules of practice contem- Peone, involving section 13, township 26 By Section 6, Act of February 14, 1853 'every plate the filing of cross-interrogatories, and N., range 43 E., Colfax, Washington Terthat the testimony shall be taken only on ritory, on appeal by the Railroad Comperson entitled to the benefit of the fourth the interrogatories transmitted to the company from your decision of June 6, 1882, (10 Stat., 158), it was provided that " missioner. Wherefore defendant received adverse to their claim. Peone's claim is made under Section 4 section of the act of which this is amendthe notice to which the rules entitle him, has lost no rights except those which he of the Oregon Donation Act of 1850, and atory, who was resident in said Territory waived, and it is held that the said deposi- supplementary legislation. The amending on or prior to the 1st of December, 1850, The act of 1853 required him to file notice of shall be, and hereby is required to file tions are admissible as evidence. record fails to show a ruling on the above his claim with the proper officer prior to with the Surveyor-General of said Terriobjections by your office, or by the local December 1, 1853 (which limitation the tory, in advance of the time when the land office, or whether the evidence re- act of 1854 extended to December 1, 1855), public surveys shall be extended over the ferred to was considered by either office. upon penalty of a forfeiture of all rights particular land claimed by him, where Upon careful consideration of the evi- as donee in the event of failure to so file; those surveys shall not have been made dence, I find that in 1871 H. W. Sanford and the act of 1864 remitted this penalty previous to the date of this act, a notice settled upon one hundred and sixty acres in all cases, except those where "adverse in writing, setting forth his claim to the of land, with the view to pre-empting it rights intervene before the filing of the re- benefits of said section, and citing all rewhen surveyed, and that he made valuable quired notification." Peone settled on an quired particulars in reference to such improvements on it, including the tract in unsurveyed tract between 1848 and 1853, settlement claim; and all persons failing contest; that he afterwards invited C. W. and the public surveys embracing it were to give such notice on or prior to the 1st Sanford to join him, and assigned him a approved August 12, 1880, and filed in of December, 1853, shall be thereafter decertain tract whereon to build a cabin with the local office October 7, 1880. Some barred from ever receiving any benefit the understanding that, if said tract fell five months afterwards, namely, on March under said fourth section. And all perwithin his claim, starting the line of sur- 16, 1881, he filed the first and only notice sons who, on the 1st of December, 1853, vey from the lands of the adjoining settler of his claim with the local officers, and at shall have settled on surveyed lands in on the south, it should be the property of the same time submitted his final proofs, said Territory in virtue of the provisions the plaintiff, and the defendant should re- which show him to be entitled to patent, of the fifth section of the act of which move to the next forty acres; that plaintiff provided no adverse rights have inter- this is amendatory, who shall fail to give aided defendant to build a cabin and other-vened. The Railroad Company contend notice in writing of such settlement, spewise improve said tract about January, that such adverse rights did intervene by cifying the particulars thereof, to the Sur1872, and afterwards, during the same year, the withdrawal of February 21, 1872, for veyor-General of said Territory, on or had the survey made, which, starting as their benefit, and by the definite location prior to the 1st of April, 1855, shall be agreed, included the tract in contest, that of their line October 4, 1880; that for this thereafter debarred from ever receiving defendant never made or maintained a per- reason the act of 1864 did not remit the the benefits of said fifth section." manent residence on the land for three years, and during the following two years resided and kept a hotel in the town of Marshfield, whilst plaintiff occupied and cultivated it; that in the fall of 1875 defendant sent lumber and workmen to build a house on said tract, and was ordered away by plaintiff, and forbidden to build penalty in this particular case, and that A determination of the rights of the First. It is to be observed of this section that its latter part applies only to setsuch of said settlers as had occupied "surWhereas, by the former tlers under section 5, act of 1850, and to veyed lands." act, they were required to give notice of such settlement," by the latter act the time their claims "within three months after was extended to April 1, 1855, after which their rights were to be forfeited. This appears to amount to a legislative declaration that the rights of settlers were not to be forfeited by failure to give the notice required by the act of 1850. Second. The latter part of said section applies only to settlers who had become of age or emigrated to the territory between December 1, 1850, and December 1, 1853; consequently it does not apply to those who may have emigrated and settled between December 1, 1853, and December 1, 1855, to which time the privileges of section 5, act of 1850, were extended by section 5,act of 1853, for their benefit. Therefore such settlers on surveyed land were still required to give notice of their claims within three months after settlement, and those on unsurveyed land within three months after survey. Third. The former part of said section evidently applies only to settlers under section 4, act of 1850, (those resident in the territory prior to December 1, 1850), who might locate on unsurveyed land; wherefore, as to those who might locate on surveyed land, the requirement of a notice within three months after settlement, remained in force. Fourth. Residents in the territory prior to December 1, 1850, who might locate on land still unsurveyed, were required to file notice of their claims prior to its survey, and on failure to file such notice prior to December 1, 1853, were to forfeit their rights. The former of these requirements is necessarily limited by the latter, and the obvious meaning of the provision is that, whether the survey were made before or after said date, such settlers must file notice of their claims on or before December 1, 1853, and that they could receive no benefits under the donation act if they filed notice after December 1, 1853. notice to the Surveyor-General, or other tler's compliance with all the conditions The proviso to this section evidently extends to December 1, 1855, the time of filing notice by the two classes above referred to-namely, those on surveyed land before limited to April 1, 1855, and those on unsurveyed land before limited to December 1, 1853. And the section requires the filing of notice, by all claimants under the Donation Acts, within thirty days after request by the proper officer, upon pain of forfeiture of all right and claim thereafter. Thus the law stood until 1864. On June 25, 1864, an amending act was passed (13 Stat., 184), which provides "that in all cases under the act of Congress approved September 27, 1850, entitled 'An act,' etc., and the several acts amendatory and supplemental thereto, in which the actual settlement may be shown to be bona fide, and the claim in all respects to be fully within the requirements of existing laws, except as to the failure of the party to file notice within the time fixed by statute, such failure shall not work forfeiture when no adverse rights intervene before the filing of the required notification by the claimant." While the language of this act is somewhat obscure, its purpose is quite clear. It was intended to place Donation claimFifth. Since no notice after December 1, ants upon the same footing as claimants 1853, could benefit such settlers, it follows under the pre-emption laws; that is, to that no future notice by them was contem- give them a preferred right to the land plated. Wherefore, the requirement of upon which they had settled until the notice within three months after survey, time fixed for filing their notices, and afprovided for in section 6, act of 1850, was terwards to extend such preferred right to not contemplated. The earlier and the later provisions are irreconcilably antagonistic, and hence the earlier provision was repealed. From and after February 14, 1853, the only provision in force, concerning notice by claimants on unsurveyed land, under said fourth section, required the notice to be filed on or before December 1, 1853, for the earlier law did not revive at the expiration of the time limited in the later, (Sedgwick on Construction, 107.) the time at which they actually filed the required notices, provided no adverse rights intervened after the time fixed by law. In other words, a notice is required, and the date of filing it is fixed, but a failure to file it by the time fixed does not forfeit the right of any claimant, and it is only barred by an adverse right intervening between the required and the actual time of filing. This is the construction given by the Supreme Court in Johnson Section 3, act July 17, 1854, (10 Stat., vs. Towsley (13 Wall, 72), to Section 5, 305), extends pre-emption privileges under act March 3, 1843, which declares a forthe act of 1841 to surveyed and unsurveyed feiture of the pre-emptor's right to the lands in Oregon and Washington territor- land on failure to file notice within the reies, and requires notice of pre-emption quired period. But, in the case of the claims on unsurveyed lands to be filed with the proper officer "within six months after the survey of such lands is made and returned." "And all persons claiming donations under this act, or the acts of which it is amendatory, shall in like manner give With regard to the forfeitures already incurred under the acts of 1853 and 1854, the act of 1864 unquestionably remitted the penalty. And, though the language is not clear, I am of opinion that it also removed the limitation of time expressed in those acts, and restored the provisions of Section 6, act of 1850. It is a maxim that "a thing which is within the intention of the makers of a statute, is as much within the statute as if it were within the letter;" and it is evident that in this act Congress regarded a future filing of the required notice as essential in all donation claims, because it provided that such a filing after the time fixed should be regarded as a compliance with the law. If the limitations of the acts of 1853 and 1854 are regarded as still in force, then, as no notice after December 1, 1855, was required by them, the act of 1864 does not operate on that class of claimants as to notice after survey, they are not required to give notice at all, no adverse rights can intervene after that date, and they are thus distinguished from all other classes. There appears to be no reason why they should be accorded this preference, and in fact, the acts of 1853 and 1854, by shortening the time of filing, rather indicate the purpose of Congress to discriminate against them. Wherefore the object of the act of 1864 may be reasonably regarded as a restoration of their privileges under the act of 1850, and as placing them upon the same footing as other classes of donation claimants. Applying these conclusions to the facts of the case at bar, it appears that Baptiste Peone failed to file the required notice on or before December 1, 1855, but that any forfeiture thereby incurred was remitted, and his claim was absolutely reserved to him until three months after survey, and thereafter conditionally reserved until he filed the required notice. It appears also that he did not file within three months after survey; but, as no adverse right intervened between date of survey and the date of actual filing, March 16, 1881, such Donation Acts, legislative action was im- failure did not work a forfeiture. And portant, because donations are not simply since his claim was reserved until three preferred rights of purchase, to be ac- months after survey, it follows that it was quired by settlement and improvement, excepted from the grant of lands to the but actual grants of land, which, as above railroad company, taking effect by definite remarked, take effect only upon the set- location October 4, 1880, not only upon general principles, but by the express provisions of the granting act, Section 3, act July 2, 1864 (13 Stat., 367). Your decision is accordingly affirmed. ST. PAUL, MINNEAPOLIS AND MANITOBA Senior Grant of 1855.-Northern Pacific Grant The S. E. of the N. W. of Sec. 15 is within the ten miles of granted limits and the residue of the tract is within the twenty miles or indemnity limits of the grant by act of March 3, 1871, (16 Stat., 588,) to the Saint Vincent Extension. tinuously resided upon and improved the Under date of May 4, 1881, he applied kins, on December 26, 1865, and canceled March 26, 1868; that a second homestead entry was made May 13, 1871, and canceled January 22, 1872; that a third homestead entry was made February 2, 1872, and canceled November 11, 1872; and that Patton's You held his proof to be satisfactory, homestead entry No. 12,238, was made and reinstated his entry upon the ground December 6, 1872, final certificate No. 7,646 that as the same was made prior to the issued to him February 28, 1878, and, receipt at the local office of the notice of refusal of the company to relinquish, was withdrawal for the benefit of the St. Paul, held for cancellation by your decision Minneapolis and Manitoba Railway Com- aforesaid. pany, it was confirmed by the 1st section of said act. Deeming it unnecessary to invoke the remedial act mentioned, it will suffice to state that the Department has invariably held the right conferred by the senior grant of March 3, 1855, (11 Stat., 195,) to the then Territory of Minnesota to be paramount to that conferred by the said act of July 2, 1864, to the Northern Pacific Railroad Company. Hence it follows that the cancellation by your office of a portion of Rouse's claim for conflict with said company's grant, was erroneous. It was held by the Department under date of February 12th last, in the case of Graham vs. Hastings and Dakota Railroad Company, (9 Copp, 236,) "that an entry of record-which on its face is valid-is such an appropriation of the land covered thereby as to reserve the same from the operation of any subsequent law, grant, or sale, until a forfeiture is declared and the land restored to the public domain in the manner prescribed by law." The Company's right attached within the granted limits August 17, 1871, but the notice of withdrawal was not received at the local office until February 12, 1872. In the light of the foregoing statement The tract is also within the forty miles of fact I am of the opinion that this case or indemnity limits of the grant by act of falls clearly within the rule laid down by July 2, 1864, (13 Stat., 365,) to the North- the Department in the case cited, and your ern Pacific Railroad Company, the with- decision is modified accordingly. drawal for which became effective January 6, 1872. It appears that the tract was formerly covered by soldier's homestead entry No. 4886, made April 25, 1865, in the name of James McNeff, and canceled December 14, 1871, for abandonment. An examination of McNeff's affidavitwhich is in the usual stereotyped formdiscovers certain patent errors. I regard these, however, as merely clerical and immaterial, as under the present rulings of the Department in similar cases a consid eration of the same is not necessary to a determination thereof. PATTON VS BURLINGTON AND MISSOURI RIVER RAILROAD COMPANY. on Patton claims the land under Section 2 of the act of April 21, 1876, (19 St., 35,) which validates certain re-entries upon railroad lands whereon valid homestead claims existed at receipt by the local land office of the notice of withdrawal, and which were afterwards abandoned. In Wood vs. the Burlington and Missouri River Railroad Company, in Nebraska, (14 Otto,329,) the court say: "The line of the defendant's road was definitely located in June, 1865, and the alternate sections within a limit of twenty miles were withdrawn from sale in July following. The land embraced by them, so far as it had not been previously sold, reservea, or otherwise disposed of, or not covered by a homestead or pre-emption claim, was thus appropriated to the satisfaction of the grant. It could not be subsequently devoted to other purposes, or subject to the claim of private parties.' Under this decision the tract in contest was not subject to claim by Hopkins in December, 1865, and consequently the entry he then made was not a valid claim" within the meaning of the act of 1876. Since his claim was invalid, Patton's claim, supported by it, falls with it. 66 Counsel's assignments of error, Nos. 1 to 4, are thus disposed of. Nos. 5 and 6 set up that the company's title to the land could not pass by assignment under the resolution of April 10, 1869; but to this may be replied Section 15 of the act of July 1, 1862, (12 St., 489,) of which the act extending the Burlington and Missouri River Railroad through Nebraska is amendatory, which provides that the word company shall be construed to embrace their assigns. Counsel finally allege that the company have selected lands in lieu of those in contest, but the record fails to sustain the allegation. Your decision is therefore affirmed. ST. PAUL, MINNEAPOLIS AND MANITOBA ACTING SECRETARY JOSLYN to Commissioner company's title to the granted lands can pass by assignment under the act of July 1, 1862. Under date of January 19, 1872, Rouse ACTING SECRETARY JOSLYN to Commissioner made homestead entry No. 7417 of the Mc Farland, September 4, 1883. (D. A. McK.) tract in question, but the same was canI have considered the case of John Patceled by your office as to the E. of the ton vs. The Burlington and Missouri River N. W. of Sec. 15, June 30, 1873, for con- Railroad Company, in Nebraska, involving flict with the Northern Pacific's grant. the E. of the S. E. of Section 29, townNotwithstanding such cancellation, Rouse ship 7, N. range 7 E., Lincoln, Nebraska, continued in possession of the eliminated on appeal by Patton from your decision of tract as a part of his claim, and under January 5, 1880. date of September 11, 1877, made final It appears that said tract is within the proof, whereupon the Register and Re- limits of the grant to said company, that ceiver issued final certificate No. 4006 for the line of the road was definitely fixed December 4, 1877, Tolickson transthe claim in its entirety. Such proof June 15, 1865, and that the withdrawal muted his filing (declaratory statement shows him to be a qualified homestead took effect at the local office February 20, No. 22) to soldier's homestead entry No. claimant, that he settled upon the premises 1866. It further appears that a homestead 952, and thereupon submitted proof showJanuary 19, 1872, and that he has con- entry for the tract was made by one Hop-'ing him to be a qualified pre-emptor and It appears that one William Thompson filed declaratory statement No. 22 for the premises June 18, 1872, alleging settlement June 12, 1870. |