that the entryman had been dead during the time, and that no heir or legal representative had resided upon or improved the tract according to law. Notice issued upon this affidavit directed to John Wilkins, deceased, and return was made that he could not be found because he was dead. An affidavit was thereupon filed for service on him by pub. lication, and publication was accordingly made. On January 12, 1889, Erickson filed a motion for the re-instatement of his contest and for leave to amend his affidavit, which was done and granted, and he amended his affidavit, and upon affidavit for notice by publication, he gave notice to the deceased of a hearing on March 18, following.

The hearing in York's case was set for February 25. At this hearing, Erickson appeared, and it is said he "protested." He was at least allowed to intervene and set up his prior claim by reason of prior contest, and it was agreed that both contests should be heard at the same time and the priority determined.

It appears that the testimony offered by each was considered by the then acting local officers, and they decided adversely to both parties. A change was, however, made of the local officers, before the papers were transmitted to your office and York and Erickson appeared and agreed to resubmit the cases to the newly appointed officers who dismissed both contests for the reason that the cases were brought against the deceased entryman and not against his heirs at law. Each party appealed to your office, and on July 10, 1890, you affirmed their action and dismissed said contests, from which decision York appealed. Erickson failed to appeal, and your decision as to him has become final.

In the case of York, the affidavit alleges that no heirs or legal representatives of said Wilkins, deceased, have resided upon or improved said property during the six months, etc.

It appears that an effort was made to bring the action against the heirs of Wilkins, but for some reason they were not made parties nor notified of the hearing. From the record before me, Erickson's contest is dismissed, and the judgment of dismissal is final. If I now affirm your decision on the York case, the entry will remain intact, segregating the land. It appears that both these contests were brought in good faith, and that the parties are trying to clear the record of the homestead entry of Wilkins, deceased. The contests are in the nature of actions in rem, and the entry of record being to some extent a bar to an entry or filing being made for the land, therefore the heirs of Wilkins, if there be any, known or unknown, should be notified of any proceedings to cancel the entry and they should be allowed their day in court. I will, therefore, set aside all the proceedings in the case of York from the filing of his affidavit of contest, charging that the heirs or legal representatives of Wilkins have not resided upon or improved the land, and return the case to be remanded to the local office for a hearing de novo, upon proper service upon the heirs at law of John Wilkins, deceased, and upon proper notice to all parties interested, a hearing will

be had if York shall desire to proceed, and upon a report of the testimony taken at such hearing, you will re-adjudicate the case. As Erickson's case is not before me, any question of priority as between these parties will be determined when such question shall arise. cision as to York's case is vacated and set aside.

Your de

RAILROAD GRANT-INDIAN LANDS-ACT OF JULY 27, 1866.

ATLANTIC AND PACIFIC R. R. Co.

The act of July 27, 1866, did not confer upon the Atlantic and Pacific Railroad Company any grant of lands within the limits of the Indian Territory.

Secretary Noble to Messrs. Britton and Gray, Washington, D. C., October 3, 1891.

I have considered the matter presented in your letter of April 25, 1891, signed also by John J. McCook, general counsel, and J. A. Williamson, land commissioner, on behalf of the Atlantic and Pacific Railroad Company, requesting official recognition of the claimed rights of said company to lands opposite its constructed road in Indian Territory.

In said letter it is stated

One hundred and twelve miles of said road have been constructed in the Indian Territory, extending from the eastern line thereof, and such construction has been duly accepted by the President of the United States, in accordance with the provisions of section 4 of said act.

The Commissioner of the General Land Office reports, under the date of May 18, 1891,

within that Territory eighty-six miles of road appears to have been constructed and accepted by the President of the United States, with that in Missouri, forming a continuous line from Springfield, Missouri, to Vinita, Indian Territory.

The constructed road traverses the Shawnees', Wyandottes', and Cherokees' lands. . . There is nothing on file in this office showing the construction of the road west of Vinita.

The company's claim to recognition is based upon the following, taken from section 2 of the act of July 27, 1866 (14 Stat., 292), making a grant of lands to aid in the construction of said road:

The United States shall extinguish, as rapidly as may be consistent with the policy and the welfare of the Indians, and only on their voluntary cession, the Indian title to all lands falling under the operation of this act and acquired in the donation of the road named in this act.

Your letter in conclusion states,

it is assumed by the Railroad Company, upon the authority of Buttz v. Northern Pacific Railroad Company (119 U. S., p. 55), and of Cherokee Nation v. Southern Kansas Railway Company (October term, 1890), that upon the extinguishment of the Indian title, the right of the company to its land grant opposite the constructed parts of its road, will be perfect.

The contention here presented was urged upon this department as early as 1877, and Mr. Commissioner Williamson, in a very elaborate report to this department upon the subject, in which the history of this grant is fully set forth, held: "it is clear to my mind that the company has not the shadow of a claim therefor under the act of 1866." (4 C. L. O., 123.) This position was also taken by the public lands committee of the 49th Congress. In its report on a bill to forfeit the grant to this company it is stated:

The public land system has never been extended over it. Congress has never taken any action to have it surveyed as public land. Much of it is held by four nations, the Choctaw, Chickasaw, Cherokee and Creek, who have patents in accordance with treaties and laws, and all attempts to induce Congress to organize it into a Territory of the United States have, up to this time, failed. This is enough to show that the company has no grant of land in this Territory, neither present or prospective, in our opinion. None was intended to be conferred by the act, except as such grant might be acquired from the Indians.

See Ex. Doc. 193, H. R.--49th Cong., 1st session.

I might refuse the request for recognition based upon these authorities, but, from an examination of the decisions now relied upon by the company as recognizing its right to lands opposite constructed road, I fail to find anything upon which to base such claimed recognition, or to cause me to reconsider the former position taken by this department in the matter, viz: that there was no grant made to the company within the Indian Territory by the act of 1866.

In the Buttz case the land in controversy was a part of the Indian country occupied by the Sisseton and Wahpeton bands of Dakota or Sioux Indians, extending over a great area of country, and by the treaty of 1867 the Indians ceded all their right, title, and interest in and to this country occupied by them, except certain tracts which were expressly reserved as permanent reservations.

In that case the court says, speaking of the third or granting, section (which is similar to the granting section of the act under consideration), the provisions of the third section limiting the grant to lands to which the United States had full title, they not having been reserved, sold, granted, or otherwise appropriated, and being free from pre-emption or other claims or rights, did not exclude from the grant Indian lands not thus reserved, sold, or appropriated, which were subject solely to their right of occupancy.

The case of the Cherokee Nation v. Kansas Railway Company (135 U. S., 642,) is nowise in point, as the question there involved is a constitutional one, governing the power of Congress to grant the right of way, with due provision for just compensation, over the lands held by that nation, and the court held such grant to be a valid exercise of the power of Congress to regulate commerce among the several States and with the Indian tribes.

The status of the lands within the Indian Territory is entirely different from that involved in the Buttz case. They were, at and prior to the definite location of the road, set apart and reserved to the Indians,

under certain conditions, by treaty stipulations, and, although a portion of them may have subsequently reverted to the United States, they did not inure to the company under its grant. The question of the reversion of certain of the lands is now in the courts, and it is deemed unnecessary, in the present controversy, to consider that matter.

As stated in the case of Worcester v. The State of Georgia, 6 Pet., 557,

the treaties and laws of the United States contemplate the Indian Territory as completely separated from that of the States.

The grant made to the Atlantic and Pacific Railroad Company was of every alternate section of public land ..... to the amount of twenty alternate sections per mile, on each side of said railroad line, as said company may adopt, through the Territories of the United States, and ten alternate sections per mile on each side of said railroad, whenever it passes through any State, and whenever, on the line thereof, the United States have full title. . . . . . . at the time the line of said road is designated by a plat thereof filed in the office of the Commissioner of the General Land Office, etc.

....

At the date of the definite location of the Atlantic and Pacific Railroad Company, in this vicinity, the United States was not possessed with full title to these lands. Neither at the date of the act nor the definite location of the road were they public lands, and they were not then embraced within the limits of "the Territories of the United States," or one of the States.

These lands were, therefore, not embraced within the grant made by the act of July 27, 1866 (supra), and any claimed right to the same must be asserted through the courts, as this Department will refuse, in anywise, to recognize any right in the company, either present or pros pective, in and to these lands.

PRE-EMPTION CONTEST. SECTION 2260 R. S.

MURDOCK v. HIGGASON.

A pre-emptor is not within the inhibitions of section 2260 R. S., who in good faith, and prior to settlement, has disposed of the land then owned by him, though a formal transfer of such land is not executed until after settlement.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, October 5, 1891.

The land involved in this contest is the NE. of Sec. 11, T. 3 S., R. 26 W., Oberlin land district, Kansas. The case has been before this Department several times, Secretary Lamar having rendered a decision therein on the 18th of July, 1887, and Secretary Vilas on the 6th of March, 1888. The decision of Secretary Lamar is published in 6 L. D., 35, and the conclusion reached by Secretary Vilas is given on page 571 of the same volume.

The facts in the case are that Higgason filed a pre-emption declaratory statement for the land on the 24th of November, 1884, alleging settlement on the 18th of the same month. On the 2d of December of that year, Murdock made homestead entry for the tract. On the 22d of July, 1885, Higgason offered final proof, and Murdock protested against the acceptance of the same, alleging among other things that Higgason was not a legal pre-emptor on the 18th day of November, 1884, the date of his alleged settlement.

A trial followed, at which both parties submitted evidence and on the 21st of January, 1886, the local officers decided that Higgason's settlement was prior to Murdock's entry, and that the former should be allowed to complete his entry, and that of the latter should be canceled. On the 8th of July, 1886, your office rendered a decision sustaining that of the local office, but on the 9th of December of the same year you reviewed your decision of July 8th, and ordered the cancellation of Higgason's entry, and held the entry of Murdock subject to final proof.

On the 18th of July, 1887, the decision of Secretary Lamar, already referred to, was rendered, in which he reversed your decision of December 9, 1886, and directed that the entry of Higgason be approved for patent. In accordance with such order, the local officers, on the 15th of August, 1887, issued to Higgason final certificate and receipt for the land.

On the 6th of March, 1888, on a motion for review, Secretary Vilas considered the case at great length, and came to the conclusion that a rehearing should be ordered, at which each party should have an oppor tunity to offer evidence and cross-examine the witnesses of the opposing party, and after receiving the record of said hearing, with the report of the local officers upon the testimony taken thereat, you were directed to re adjudicate the case.

On the 24th of January, 1889, after considering the several hundred pages of testimony taken at such rehearing, the register and receiver united in a decision, in which they recommended that Higgason's entry be approved for patent, and that the homestead entry of Murdock be canceled.

Murdock appealed from that decision to your office, and on the 11th of April, 1890, you rendered judgment in the case, holding Higgason's filling and cash entry for said land for cancellation, and directing that the homestead entry of Murdock be re-instated. An appeal by Higga. son from that judgment again brings the case to this Department for consideration.

The question of settlement, residence, cultivation and improvements, have been too frequently decided in the case to need consideration by me, and the only question requiring attention is as to whether Higgason was or was not a legal preemptor when he made his settlement and filing for the land.

The facts in regard to this are that on the 10th of September, 1884, he