Craig's claim was other than what he made it, when he himself never at any time alleged any error in his filing aforesaid.

In view of the meager and unsatisfactory nature of the testimony, coupled with the fact that Craig himself has said that his claim (which is here sought to defeat the railroad grant for the lands in section 23) was in section 26, I am clearly of the opinion that the appeal of the company herein is well taken.

The decision appealed from is reversed, the application of Schlein is rejected, and the land in dispute awarded to the railroad company.

RAILROAD GRANT-SELECTION-RIGHT OF ENTRY.

OLSON V. LARSON ET AL.

Selections made while the land is sub judice are invalid.

A rejected application to file a pre-emption declaratory statement, pending on appeal, is no bar to the reception of a homestead entry.

Secretary Lamar to Commissioner Sparks, February, 25, 1886.

I have considered the case of Samuel Olson v. Peter Larson, St. Paul, Minneapolis & Manitoba and Hastings & Dakota Railway Companies, involving the NE. of Sec. 1, T. 117, R. 29, Benson, Minnesota, on ap. peal by Larson and the two companies from your office decision of April 28, 1884.

The case arises upon the application of Samuel Olson, April 5, 1883, to make homestead entry of said tract; and of Peter Larson, November 26, 1883, to make like entry of the N. of said quarter section.

The land was within the withdrawal for the St. Paul and Pacific Railway Company under the act of March 3, 1857, but was restored to market by proclamation No. 700, dated April 18, 1864. On November 18, 1864, William R. Cosgrove made homestead entry No. 1110 on the tract. By act of March 3, 1865, the company became entitled to four additional sections on each side of its road to be selected by the Secretary of the Interior: the land in question is within this extended area, withdrawal of which was made by the Secretary July 10, 1865, and received at the local office July 20, 1865. Said tract is also within the twenty miles indemnity limits of the grant of July 4, 1866, in favor of the Hastings and Dakota Railway Company, the withdrawal for which became effective August 8, 1866. On September 30, 1872, the entry of Cosgrove was canceled, because he failed to make final proof.

On June 14, 1878, Olson applied to file declaratory statement on the S. 1, and same day Larson made like application as to the N. of said quarter section. Both applications were rejected, as it appears, on the ground that the land was within the supposed granted limits of the act of March 3, 1865; and also that of July 4, 1866, and therefore was not

subject to pre-emption. Each party appealed, but only the appeal of Larson appears to have been prosecuted, notwithstanding the assertion of his attorney to the contrary. At a later date Olson ordered his appeal to be dismissed, whereby the decision of the register and receiver in his case became final.

Your predecessor, Acting Commissioner Armstrong, affirmed the decision of the local officers in the case of Larson, holding that inasmuch as an examination showed that the entry of Cosgrove was made by a single man, while in the military service of the United States, without residence on the tract, and whose affidavit was made before his commanding officer, said entry was null and void, and did not except the land from the railroad grant, as was held in the Kniskern case, and awarded the land to the St. Paul and Pacific Company, construing the act of March 3, 1865, to be a grant of four additional sections in place to that company. (See 6 C. L. O., 78.) From this judgment no appeal was taken by Larson, but the Hastings and Dakota Railway Company appealed and the judgment therein was affirmed as between the two companies, by Secretary Kirkwood, on April 20, 1881.

On September 18, 1880, the St. Paul, Minneapolis and Manitoba Railway Company, successor to the St. Paul and Pacific Railway Company, selected this land.

On April 5, 1883, Olson applied to make homestead entry of the whole of said NE. 4, which application was refused, "under rule 53," because of the supposed pendency of the appeals of himself and Larson in relation to the pre-emption filings. From this rejection, on June 2, 1883, Olson appealed, and at the same time dismissed his former appeal. On November 26, 1883, Larson applied to make homestead entry on the N. of said quarter section, which application was denied, because of the pending appeal of Olson relative to his homestead entry. From this rejection Larson also appealed. On April 28, 1884, on consideration of both appeals, your office held for rejection the selection of the St. Paul, Minneapolis and Manitoba Railway Company; denied that the Hastings and Dakota Railway Company had any preferred rights in the premises, by virtue of the withdrawal in its favor; af firmed the action of the register and receiver rejecting the application of Larson to enter; reversed that rejecting Olson's entry, and awarded the whole of said NE. to him. (See 2 L. D., 501.) On appeal from this decision, the case is now before me.

The rejection of Olson's homestead application, because of the pendency of the former appeals in relation to the right to file declaratory statements on the tract, was error on the part of the register and receiver, inasmuch as said filings, even if they had gone to record, would not have precluded the recording of an entry for said tract and a rejected application pending on appeal certainly ought not to deprive one otherwise qualified to make entry from doing so on land properly subject thereto.

At the time of the homestead application of Olson, this Department had reversed the ruling in the Kniskern case, and declared that a homestead entry like that of Cosgrove, while intact upon the records, exempted the tract covered thereby from any railroad grant which became effective during the existence of said entry. So that, at the date of Olson's said application, under the rulings of this Department, the land in question was public land, subject to entry, sale or selection.

The appeal of Larson was disposed of by the Commissioner's decision of September 4, 1879, from which Larson failed to appeal, and that of Olson was withdrawn June 2, 1883, at the time he filed appeal from the rejection of his homestead application; so that then the right of entry was entirely disembarrassed of any question growing out of the first appeals.

At all events, Olson's said application was the first presented after the rulings of this Department that lands in a similar category were public, and subject to such entry; therefore his should have been allowed, unless there was some special reason for rejecting the same. Two such reasons are alleged.

The first is, that as between Olson and the St. Paul and Pacific Com. pany the right to this land had passed in rem judicatam. This contention is not tenable under my decision in the case of the Hastings and Dakota Company v. Whitnall, (4 L. D., 249.)

The second reason is, that the St. P., M. & M. Company, successors of the St. Paul & Pacific Company, having on September 13, 1884, selected the land under the provisions of the act of March 3, 1865, said selection precluded entry of the same.

This selection was made whilst the appeal of Olson as to the S. of said quarter section was yet pending in your office, and also whilst the appeal of the Hastings and Dakota Company, as to the whole of said quarter section was pending in this Department. Selections made while lands are thus sub judice are invalid and are not to be regarded as conferring any rights. See St. P., M. & M. Ry. Co. v. Paulsen, (4 L. D., 232.) Cosgrove's entry, subsisting at the date of the withdrawal for the Hastings and Dakota Railway Company in 1866, and the said company not having made selection of said tract, afterwards, while the same was vacant, has acquired no rights thereto. The existence of said entry, at the date of the withdrawal of said tract, July 20, 1865, for the benefit of the St. Paul and Pacific Company, under the act of March 3, 1865, also excepted the tract from its operation. I must therefore hold that said tract was at the date of Olson's application to make entry free from any claims on behalf of either of said companies, and he being the first applicant was entitled to make entry thereof, unle s some further objection is shown.

It appears that on same day Olson made application to file on the S. of said quarter, Peter Larson made a similar application to file on the the N. thereof; that afterwards on December 18, 1883, Larson offered

to file homestead entry on said N. 1, alleging settlement in May, 1876, which application was rejected, and appeal taken as before stated. Larson alleges settlement at the time stated, improvement, cultivation of said tract and continuous residence thereon since. He also alleges that at the time he and Olson originally settled upon said quarter section, a division fence was established, which has since been maintained. Olson, on the other hand, whilst claiming settlement in 1877, improvement, cultivation and residence on the tract claimed, denies that Larson ever settled upon or improved according to law any portion of said tract, and asks for a hearing to ascertain their respective rights in the premises.

I think, under the peculiar and anomalous circumstances of the case, this would be a just and proper disposition of it. I therefore direct that Olson's homestead entry be received; and that a hearing be ordered before the register and receiver to determine the respective rights as between him and Larson to the N. of said quarter section. Should the same be awarded to the latter, then the homestead entry of Olson will be canceled to that extent and Larson permitted to enter the same. Your decision is accordingly modified.

FINAL PROOF-PUBLICATION OF NOTICE.

FOREST M. CROSTHWAITE.

Error appearing in the published description of the land, the final proof is suspended, for further publication of notice.

Secretary Lamar to Commissioner Sparks, February 25, 1886.

Forest M. Crosthwaite made homestead entry No. 19 October 3, 1883, for the E. of NE. of Sec. 9 and NW.

of NW. Sec. 10, and SW.

of SW. Sec. 3, T. 154 N., R. 64 W., Devil's Lake, Dakota, and commuted the same to cash entry, No. 718, October 3, 1884.

In publishing notice of intention to make final proof, the NE. of Sec. 9 was erroneously described in the notice as the NW. . You held this to be a material defect, and therefore rejected the final proof and held the entry for cancellation, allowing sixty days for appeal.

This was error. The case should have been returned to the local office, with instructions to require the applicant "to make final proof and entry after due and proper notice," as held in the case of A. S. Frick & J. S. Powell, 3 L. D., 460, which you cite in support of your ruling. By letter of June 29, 1885, from the register, sent to your office before this appeal was filed, it appears that the notice presented to the local office properly described the entry, but the error was made by the printer. You will therefore direct the local office to notify the applicant that she will be required to make proper publication of notice, and after expiration of said notice, if no objection is filed to said entry, the proof formerly submitted may be accepted as final proof.

Your decision is reversed.

RAILROAD GRANT-INDEMNITY SELECTION.

ST. PAUL & DULUTH R. R. Co.

The amendatory act of 1866, did not make any additional grant of lands, but merely extended on the west the indemnity limits to provide for selections in case of loss occasioned by the road running nearer than ten miles to the boundary line of the State; and said amendment did not operate upon lands lying east of the road. Lands within the granted limits, excepted from the grant, are not afterwards subject to selection as indemnity.

The "deficiency lands” are in effect upon the same basis as the lieu lands, provided for in the original granting act.

Secretary Lamar to Commissioner Sparks, February 27, 1886.

I have before me the appeal of the St. Paul and Duluth Railroad Company from the decision of your office, dated September 10, 1884, rejecting its selection of the E. of SW. 1; and W. of SE. 1, Sec. 27, T. 42 N., R. 20 W., 4th P. M., Taylor's Falls, Minnesota.

The tracts in question are within the ten mile (granted) limits of the grant to the State of Minnesota in aid of the Lake Superior & Mississippi (now St. Paul & Duluth) Railroad Company, act of May 5, 1864, (15 Stat., 64), the right of which is held by your office to have attached to odd sections within its granted limits September 25, 1866, upon the filing and acceptance of its map of definite location by the Secretary of the Interior.

The record shows that at the date of the attachment of the company's rights as aforesaid the tracts in question were covered by homestead entry No. 113 of date February 5, 1864, in the name of Robert S. Campbell, which was canceled July 22, 1871.

On the 28th of December, 1881, the land aforesaid was selected by the agent of the said railroad company, and the list embracing said selection was duly transmitted to your office.

The decision appealed from held that the lands being covered by a homestead entry prima facie valid at the date of the definite location of the road were thereby excepted from the operation of the grant; and as a consequence, the selection thereof by the company should be rejected and canceled.

The appeal under consideration alleges three grounds of error on the part of the Commissioner, to wit:

"1. In holding that the entry of Robert S. Campbell excepted the land in question from the operation of the grant.

"2. In holding the selection of said land for cancellation.

"3. In not approving the said selection."

As to the first ground of error, it is sufficient to say that the law on that point is well settled. It has been held so often that a prima facie valid homestead entry, covering a tract of land in an odd section within the granted limits of a railroad, and subsisting at the date of the defi