claimed was defective. This defect was not however necessarily fatal but was one that might be cured by the establishment of a residence prior to the intervention of an adverse claim. In view of the fact that the entryman established his residence before the intervention of an adverse claim, that he has acted in good faith and that the contestant does not assert any claim other than that of a successful contestant, I am of the opinion that the entryman should be allowed to cure the defect in his entry by filing a supplemental affidavit. Brassfield v. Eshom (8 L. D., 1) and authorities there cited.

You will therefore direct the local officers to notify claimant that he will be allowed thirty days from receipt of notice hereof within which to file said supplemental affidavit.

The decision appealed from is modified acccordingly.

PRE-EMPTION ENTRY-APPROXIMATION.

ISAAC M. GALBRAITH.

A pre-emption entry embracing lands in different sections must approximate one hundred and sixty acres as nearly as practicable.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, January 24, 1890.

I have considered the appeal of Isaac M. Galbraith from your office decision of February 21, 1888, affirming the action of the register and receiver of the United States land office, at Seattle, Washington Territory, December 28, 1887, in rejecting said Galbraith's pre-emption declaratory statement for the N. of NE. 4, Sec. 17, SW. of SE. 1, and lot 9, Sec. 8, and lot 4, Sec. 9, T. 37 N., R. 5 E., containing one hundred and seventy-six acres.

The settlement on these lands is alleged to have been made November 1, 1883; the plat of the survey of the township, i. e., 37, was received with surveyor-general's letter of September 5, 1885. By reference to the plat of said lands, it is found that they are situated in three different sections, i. e., 8, 9 and 17, aggregating one hundred and sev enty-six acres. Excluding the lot 4, in Sec. 9, there is still left one hundred and sixty-one. Appellant, therefore, has the right of entry to one hundred and sixty-one acres, by legal subdivisions, from the one hundred and seventy-six acres embraced in the tract described in the declaratory statement. It is obvious that he can not, under the law, enter the whole of said tract. But it appears that appellant's improvements, estimated at $300.00, are situated on lot 4, in Sec. 9, which lot, by the survey, contains only fifteen acres. By relinquishing this lot, he can get from the residue one hundred and sixty-one acres. By retaining it and releasing one of the legal subdivisions, he can get but 136

acres.

Reference is made to the case of Henry P. Sayles (2 L. D., 88), as announcing the rule of this office, that, where the excess above one hundred and sixty acres is less than the deficiency would be should a subdivision be excluded from the entry, the excess may be included, and the contrary where the excess is greater than the deficiency; and the application of this rule is invoked in behalf of appellant in this case. It can not apply in this case. There are five subdivisions in this proposed entry-four of them, of nearly forty acres each, amount to one hundred and sixty-one acres; one of them (lot 4, in Sec. 9, and containing his improvements) has only fifteen acres. There is no rule of approximation that will permit appellant to enter the fifteen acres and also the additional one hundred and sixty-one acres.

I find no error in your said office decision, which is accordingly affirmed. The papers in the case are her with returned.

RAILROAD GRANT-ACTS OF JUNE 3, 1856, AND MAY 5, 1864.

WISCONSIN CENTRAL R. R. Co.

The grant of June 3, 1856, is not repealed by the act of May 5, 1864, only to the extent that the later act destroys the continuity of the line provided for, or made possible, under the former grant.

Lands reserved, by executive order, for indemnity purposes under the grant of June 3, 1856, are by the express terms of section 6, act of May 5, 1864, reserved and excluded from the grant made by section 3, of said act.

The act of 1864, operated upon the indemnity limits of the grant of 1856 so as to convert four miles of said limits into place limits under said act of 1864 in favor of the roads common to both grants, but it did not confer any rights upon this road where its grant overlaps the limits of the prior indemnity withdrawal under the grant of 1856, as the rights of said road date from, and exist only under the act of 1864.

Secretary Noble to the Commissioner of the General Land Office, January 24, 1890.

This is an appeal by the Wisconsin Central Railroad Company from your office decision of October 15, 1888, holding for cancellation certain lists (inappropriately styled "selections" in your said office decision) made by said company July 2, 1887, of lands claimed as a part of its grant under the act of May 5, 1864 (13 Stat., 66), to the extent that they included the following described tracts, situated in the Ashland land district, in the State of Wisconsin: [List omitted.]

These lands are within the ten miles, or primary limits of the grant of May 5, 1864, now owned by said Wisconsin Central Company, and are also within the fifteen miles, or indemnity limits of the grant (Bayfield Branch) under the act of June 3, 1856 (11 Stat., 20), now owned by the Chicago, St. Paul, Minneapolis and Omaha Railway Company. The matters involved in the appeal make it necessary to refer, at

some length, to the provisions of these two acts of Congress, and the subsequent proceedings thereunder.

By the first section of the act of June 3, 1856, there was "granted to the State of Wisconsin, for the purpose of aiding in the construction of a railroad from Madison, or Columbus, by the way of Portage City to the St. Croix river or lake, between townships twenty-five and thirtyone, and from thence to the west end of Lake Superior, and to Bayfield; and also from Fond du Lac on Lake Winnebago, northerly to the State line, every alternate section of land designated by odd numbers for six sections in width on each side of said roads, respectively." "But," the act declares,

in case it shall appear that the United States have, when the lines or routes of said roads are definitely fixed, sold any sections or parts thereof, granted as aforesaid, or that the right of pre-emption has attached to the same, then it shall be lawful for any agent or agents, to be appointed by the governor of said State, to select, subject to the approval of the Secretary of the Interior, from the lands of the United States nearest to the tier of sections, above specified, so much land in alternate sections, or parts of sections, as shall be equal to such lands as the United States have sold or otherwise appropriated or to which the right of pre-emption has attached, as aforesaid which lands (thus selected in lieu of these sold, and to which pre-emption has attached as aforesaid, together with the sections and parts of sections designated by odd numbers as aforesaid, and appropriated as aforesaid), shall be held by the State of Wisconsin for the use and purposes aforesaid: Provided, That the lands to be so located shall in no case be further than fifteen miles from the line of the roads in each case, and selected for and on account of said roads;

and there was added the further proviso: "That any and all lands reserved to the United States by any act of Congress for the purpose of aiding in any object of internal improvement, or in any manner for any purpose whatsoever," should be reserved to the United States, and excepted from the operation of the act, except so far as necessary for the location of the routes of the said railroads, in which case the right of way only was granted.

The fourth section of the act, after prescribing the manner in which the lands thereby granted were to be sold by the State, to the end that the purpose of Congress relative to the construction of said roads might be accomplished, further provided that "if said roads are not completed in ten years, no further sales will be made, and the land unsold shall revert to the United States."

This grant was formally accepted by the State of Wisconsin on October 8, 1856, upon the terms and conditions contained in the act, assumed and the State and undertook the trust thereby granted.

On October 11, 1856, the State, by an act of its legislature, authorized the La Crosse and Milwaukee Railroad Company to construct and operate the roads described in the act of Congress, from Madison or Columbus, ria Portage City to St. Croix river or lake, and thence to the west end of Lake Superior, and to Bayfield; and granted to that company, for the purpose of aiding such construction, and upon certain terms and conditions not necessary to be here set forth, all its interest and estate, present and prospective, in the lands granted by said act of

Congress for the benefit of the roads, between the points and along the routes named.

The La Crosse and Milwaukee Company promptly accepted the grant thus conferred by the State, upon the terms, conditions, etc., therein contained.

On October 22, 1856, the Commissioner of the General Land Office issued an order addressed to the registers and receivers of the land offices at Superior City, Hudson and Eau Claire, respectively, in the State of Wisconsin, in which he instructed them, among other things, as follows:

Upon the ling in your offices of the duly certified map of the line of route as 'definitely fixed,' of any of the roads referred to in the act entitled 'An act granting public lands to the State of Wisconsin, to aid in the construction of railroads in said State,' approved June 3, 1856, you will, without awaiting further instructions from this office, cease to permit locations or entries by pre-emption or for any purpose whatever of the lands within fifteen miles of said route.

In March, 1857, the La Crosse and Milwaukee Company, with the consent and approval of the State, obtained through another act of its legislature, transferred and conveyed to the St. Croix and Lake Superior Railroad Company all its rights and privileges relative to the construction of that portion of the road running northward from a point of intersection with the St. Croix river or lake, to the west end of Lake Superior, and to Bayfield, and in regard to the use and disposal of that portion of the congressional grant applicable to such construction, which had been conferred upon the grantor company by the State under the act of its legislature, of October 11, 1856. By the same. instrument the St. Croix and Lake Superior Company agreed, on its part, to construct the designated roads north from St. Croix river or lake to the west end of Lake Superior, and to Bayfield, within ten years from June 3, 1856, the date of the congressional grant.

The map of definite location of that part of the main line of road from Madison via Portage City to the St. Croix river or lake, was filed by the La Crosse and Milwaukee Company September 7, 1857; the map of definite location of the main line north from St. Croix river or lake to the west end of Lake Superior was filed by the St. Croix and Lake Superior Company March 2, 1858, and the map of definite location of the Bayfield branch was filed by the same company July 17, 1858. These several maps of location were filed under the provisions of the act of June 3, 1856.

That part of the main line, running from Portage to Tomah-a distance of about sixty-one miles-was constructed by the La Crosse and Milwaukee Company in the spring of 1858, and has been used since April of that year for freight and passenger purposes.

It further appears that on March 1, 1859, the Commissioner of the General Land Office transmitted to the registers and receivers of the several land offices herein before mentioned, "for their information in 14639-VOL 10——5

the matter

a diagram of the district of lands subject to sale" at their respective offices, upon which had been desiguated "the lines of route, and the lines of the six and fifteen miles limits of the 'St. Croix and Lake Superior,' and the Bayfield line of railroads, to aid in the construction of which a grant of lands was made to the State of Wisconsin by act of June 3, 1856," and instructed them that, "as all the vacant tracts in the odd numbered sections, outside of the six and within the fifteen miles limits of the roads, have been selected by the agent of the State, in lieu of the lands sold and pre-empted in the alternate sections granted by the above mentioned act, such tracts, you will, of course, continue to reserve, as heretofore, from sale or location for any purpose whatever."

This "selection" by the agent of the State was not a selection of specific tracts, in lieu of ascertained losses in the granted limits of the road, but appears to have been simply the exercise of a supposed option to take indemnity under the act of June 3, 1856, either from the odd or even numbered sections, inasmuch as that act did not specify which should be taken; and it was in view of this designation by the State of the odd numbered sections outside of the six and within the fifteen miles limits of the grant, as the source from which its indemnity for losses in the six miles limits should be supplied (and not their selection for losses already sustained), that the Commissioner ordered the local officers to "continue to reserve" such odd numbered sections "from sale or location for any purpose whatever." The designation was in fact made before the several maps of definite location of the roads were filed, and was apparently done merely as a matter of information to the Commissioner of the General Land Office, in order that he might know, when such maps of definite location should be filed, what lands to withdraw from sale or location, for the purpose of securing to the State the indemnity privileges granted by the act of Congress.

It also appears that after the main and branch lines of road were definitely located, a large amount of indemnity lands was selected and certified to the State, under the act of June 3, 1856, but no part of the main line, except the sixty-one miles aforesaid, from Portage to Tomah, nor of the branch line to Bayfield, was constructed until after the passage of the act of May 5, 1864, supra, the provisions of which we come now to notice.

By the first section of that act there was

granted to the State of Wisconsin, for the purpose of aiding in the construction of a railroad from a point on the St. Croix river or lake, between townships twentyfive and thirty-one, to the west end of Lake Superior, and from some point on the line of said railroad, to be selected by said State, to Bayfield, every alternate section of public land designated by odd numbers, for ten sections in width on each side of sid road, deducting any and all lands that may have been granted to the State of Wisconsin for the same purpose, by the act of Congress of June three, eighteen hundred and fifty-six, upon the same terms and conditions as are contained in the act granting lands to the State of Wisconsin, to aid in the construction of railroads in said State, approved June three, eighteen hundred and fifty-six.