upon the land in March, 1892; and the company's selection was held for cancellation, as to said tract, with a view to allowing the application of Pattis therefor.

From this decision the company has appealed, and alleges several errors in your office decision. Some of these need not be considered herein for the reason that the Department has recently, in numerous cases, held against the company's contention.

It is, however, urged that it was error in your office decision not to have followed the ruling of the Department in the case of the Chicago, Rock Island and Pacific Railroad Company v. Wagner (25 L. D., 458), in which case it was held that

There is no necessity for the enforcement of the rule requiring specifications of loss to accompany indemnity selections, where the grant is practically adjusted and found largely deficient, and no one is claiming adversely to the company at such time, and, under such circumstances, a selection without designation of loss will be recognized, as against a homestead entry not made until after submission of the adjust

ment.

In that case the grant was practically adjusted, the tract there involved being perhaps the only one within the grant undetermined. While it is true that in the case of the grant now under consideration a preliminary statement had been submitted by your office prior to the selection in question, which evidenced a large deficiency, yet it should be remembered that many thousand acres within the limits of this grant were still being claimed adversely to the company; and further, that this land was within the common limits of two grants and that each of the grantee claimants was asserting a right to make selection thereof; that the prior proffered selections by both companies were rejected on October 23, 1891 (13 L. D., 440), for want of, or invalidity in, the basis assigned, and that in said decision this tract, with others, was held to be "subject to entry by the first legal applicant, or to selection by the company first presenting application therefor in the manner prescribed by the regulations governing such entries."

Under the circumstances the company can not evade the requirements in the matter of the specification of losses, nor will opportunity be afforded to substitute a valid for an invalid specification, where other rights have intervened.

As the SE. of Sec. 29, T. 123 N., R. 43 W., was approved to the company on March 29, 1897, and the case of Wilhelm Fritz against said company as to the SE. of Sec. 33, T. 121 N., R. 41 W., has been decided by the Department in favor of the company and the case closed in January 1900, it is evident that the company has exhausted its indemnity rights so far as the selection under the basis in question is concerned.

Your decision in favor of Pattis is therefore affirmed, and upon his perfecting entry within a time to be specified by your office, the company's selection of the tract involved will be canceled.

SWAMP LAND-RELINQUISHMENT.

FERGUSON V. STATE OF LOUISIANA.

A relinquishment by the proper officers of a State, of lands included in an approved swamp-land list, on the ground that said lands are not of the character contemplated by the swamp-land grant to the State, will be accepted as sufficient authority for cancelling, upon the records of the land department, the certification to the State of the lands in question.

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) July 3, 1900. (H. G.)

Samuel S. Ferguson appeals from the decision of your office of January or February 6, 1900, holding for cancellation his homestead entry, made August 9, 1897, for the S. E. of Sec. 18, T. 10 S., R. 3 E., St. Helena Meridian, New Orleans land district, Louisiana. The said tract is included in swamp-land list No. 50, approved November 14, 1895; but prior to or with Ferguson's application for homestead entry was submitted the relinquishment and reconveyance of the land by the governor of the State of Louisiana to the United States.

This instrument was executed by the governor July 30, 1897, under the great seal of the State, is attested by the secretary of State, and bears on its face the endorsement of the register of the State land board, dated August 9, 1897, certifying that the selection of the State for the tract is noted on his records as canceled. The body of the relinquishment recites that the tract is not of the character of land contemplated in the grants of swamp lands to the State, but is high and easily susceptible of cultivation by a settler now actually residing thereon, and that therefore the governor, acting under the advice of the register of the State land office, relinquishes, reconveys, and sets over the same to the United States government. Your office held that the action of the local office permitting Ferguson to complete his entry was improper, because the swamp-land selection was not an entry and could not come within the provisions of the act of May 14, 1880 (21 Stat., 140), and the swamp-land claim of the State was directed to be reinstated on the records of the local office. The land having been approved to the State as swamp land, your office allowed the entryman sixty days within which to show cause why his entry should not be canceled, and suggested that the showing directed to be made should point out some law of the State authorizing the governor to execute such a relinquishment and reconveyance. The appeal does not cite any statute of Louisiana expressly authorizing the governor of the State to execute such an instrument, but insists that because no such law can be cited, it does not follow that the executive has not such power delegated to him by the general law of the State, as he is vested with the power to sign patents for lands sold by the State,

which necessarily implies the right and prerogative to sign relinquishments for the same class of lands.

The second section of the act of May 14, 1880 (21 Stat., 140), provides that when a pre-emption, homestead, or timber-culture claimant shall file a written relinquishment of his claim in the local land office, the land covered by such claim shall be held open to settlement and entry without further action by your office. As your office held, this provision does not cover the relinquishment of a swamp-land selection, and the relinquishment should have been forwarded by the local officers to your office for action, instead of their holding that when it was filed the land was open to entry and settlement.

By permitting the showing of cause by the entryman as to the authority of the governor to execute the instrument tendered, your office indicated that the entry might stand if such a showing was made.

Although the proceeding is somewhat novel, it is an admission by the executive of the State that there was error in the approval of the list of swamp lands certified or approved to the State, for the reason that the lands are not of the character granted. Patent has not issued, and until the government thereby parts with its title it is not precluded from correcting such an error or mistake. The error should be corrected when, by its solemn act, the State had made such an admission, if the admission is made by competent authority and is in binding form.

The original swamp-land grant to Louisiana was by the act of March 2, 1849 (9 Stat., 352), but a new and substantive grant was made to that State and other States by the act of September 28, 1850 (9 Stat., 519), which operated to remove the restrictions and exceptions of the prior grant to Louisiana (State of Louisiana, on review, 26 L. D., 5, 9). "In the act of 1850 making the grant, Congress, as it had the right to do, clearly indicated the officer, to wit, the governor, whose action in the premises should be the action of the grantee" (Michigan Land and Lumber Co. v. Rust, 168 U. S., 589, 598).

Under the statutes of Louisiana, the register of the State land office, who is appointed by the governor by and with the advice and consent of the senate, has general charge of the lands donated to the State, but the governor issues all patents on behalf of the State for all State lands sold by authority of its laws. (Revised Laws of Louisiana, Wolff's compilation, 689, 690.) These statutes and the act of Congress of September 28, 1850, recognizing the action of the governor of the State as that of the grantee, seem to confer power upon the governor to execute a reconveyance to the United States, particularly as the instrument he executes recites that he was acting under the advice of the register of the State land office, and under the conviction expressed in the instrument that the lands relinquished and conveyed were not

of the character granted to the State, and were therefore solemnly renounced.

This written admission on the part of the State, made by its executive who had power to perform such an act, will be accepted as sufficient ground for cancelling, on the records of your office and of the local office, the certification to the State of the tract in question, and under the circumstances the entry will be permitted to remain intact. The decision of your office is therefore reversed, and further proceedings will be had in conformity with this opinion.

REPAYMENT-PRICE OF LAND WITHIN RAILROAD LIMITS.

JOEL P. THURSTON.

The even-numbered sections within the primary limits of the grant to the Southern Pacific Railroad Company on account of its branch line, and also within the forfeited portion of the grant to the Atlantic and Pacific Railroad Company, are properly rated at the double minimum price, although within such conflicting limits the prior grant of the odd-numbered sections to the Atlantic and Pacific company operated to defeat the grant to the Southern Pacific.

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) July 3, 1900. (F. W. C.)

Joel P. Thurston has appealed from your office decision of April 2, last, denying his application for repayment of the double minimum excess required to be paid by him on his purchase made on October 29, 1895, of the SE. 4 of Sec. 8, T. 1 S., R. 6 W., S. B. M., Los Angeles land district, California.

Said tract is within the overlap of the grant made by the act of July 25, 1866 (14 Stat., 292), to the Atlantic and Pacific Railroad Company, with that made by the act of March 3, 1871 (16 Stat., 573), to the Southern Pacific Railroad Company, on account of its branch line. The grant appertaining to the unconstructed portion of the Atlantic and Pacific railroad was forfeited by the act of July 6, 1886 (24 Stat., 123). As said road had not been constructed opposite this land prior to the date of the forfeiture, the grant to aid in the construction thereof in the vicinity of the land in question was forfeited by said act. The Southern Pacific railroad branch line was duly constructed opposite the land in question and there has been no forfeiture of the grant to aid in the construction thereof.

The question as to the price of the lands within the conflicting limits of these grants is considered in the instructions of June 6, 1899 (28 L. D., 479), adhered to on review (29 L. D., 166), and it was under these instructions that the application by Thurston was rejected, it

being held that he was properly charged at double minimum rate in making purchase of these lands.

In the case of Romona Lopez (29 L. D., 639), the question as to the price of the lands within these conflicting limits was further considered, the instructions above referred to being sustained and her application for repayment denied. In the appeal from your office decision denying the application for repayment under consideration, the correctness of the conclusion in the Lopez case is questioned, although that decision is not referred to in the decision of your office appealed from.

The Lopez case has been carried to the Court of Claims, it being known as the case of Romona Shang, formerly Lopez, v. The United States, No. 21,568, and in that case this Department was cited or called upon to give certain information, under section 1076 of the Revised Statutes. In returning answer thereto through the Department of Justice, in letter of June 8, last, addressed to the Attorney-General, it was stated that

The underlying and controlling feature of the question presented by the case pending in the Court of Claims is that in making grants of alternate odd-numbered sections in aid of the construction of railroads the alternate even-numbered sections within the primary or place limits of the grant were retained or reserved to the United States and were doubled in price. It was thought that the proximity of these remaining even-numbered sections to a line of railroad would enhance the value thereof, and that the government should take advantage of this enhanced value as a means of reimbursing itself for the lands granted (U. S. v. M., K. & T. Ry. Co., 141 U. S., 358, 371). These grants provide that where, for any of the reasons enumerated in the granting act the grantee company is unable to obtain any of the odd-numbered sections in the primary or place limits of the grant, other public lands in like quantity may be taken as indemnity therefor. The quantity of the grant, therefore, remains the same. The government obtains reimbursement through the double price put upon the even-numbered sections in the primary or place limits, whether the odd-numbered sections in such limits pass to the company under the grant or whether they are excepted from the grant and other lands in the indemnity limits (where the legal price of the even-numbered sections was not increased) are given to the company in lieu thereof. The reason for reimbursement is the same in either case.

Here the land entered by Lopez was in an alternate even-numbered section within the primary or place limits of the grant to the Southern Pacific. This grant was never forfeited and the road was constructed. The land therefore received the benefit which flows from the construction of the road and that benefit was realized by Lopez who entered the land. The adjoining odd-numbered sections, which did not fall within the excepting clauses of the grant to the Atlantic and Pacific, did not pass to the Southern Pacific under the later grant to that company but were, because of the prior grant to the Atlantic and Pacific, excepted from the grant to the Southern Pacific and that company was given, and has received or is entitled to receive, other public lands in lieu of those so excepted. The government was therefore justified in reimbursing itself for the lands given to the railroad company by doubling in price the even-numbered sections adjacent to the aided railroad. The controlling feature of the statute is that whether the grant to the Southern Pacific was satisfied from the odd-numbered sections within the place limits or from other public lands,