above, be discontinued. The applicant may be properly required to state his post office address without including such statement in the preliminary affidavit.

LROAD GRANT-UNSURVEYED LAND-SETTLEMENT RIGHT.

ST. PAUL M. & M. RY. Co., ET AL. v. Pederson.

A settlement right existing at the date of indemnity withdrawal, serves to except the land covered thereby from the effect of said withdrawal.

A pre-emption filing based on settlement prior to survey, and made when the Department held that an indemnity withdrawal did not take effect upon unsurveyed land, will be held valid as against such a withdrawal.

Secretary Vilas to Commissioner Stockslager, January 5, 1889.

I have considered the several appeals of the Saint Paul, Minneapolis & Manitoba Railway Company, and the Hastings & Dakota Railroad Company, from the decision of your office, dated February 2, 1884, hold. ing for approval homestead entry, of Lots 2 and 3, Sec. 31, T. 122, R. 43, and Lots 3 and 4, Sec. 36, T. 122, R. 44, Benson land district, in the State of Minnesota.

The record shows that the land in the odd numbered section is within the twenty mile or indemnity limits of the withdrawal of June 2, 1869, for the benefit of the St. Paul and Pacific (now the Saint Paul, Minneapolis and Manitoba Railway) Company, under the grant by act of Congress approved March 3, 1865 (13 Stat., 526). It is also within the limits of the withdrawal for indemnity purposes for the benefit of the Hastings and Dakota Railroad Company, under the grant by act of Congress approved July 4, 1866 (14 Stat., 87), notice of which was received at the local land office on May 11, 1868.

It further appears that Ingebright Pederson filed his pre-emption declaratory statement No. 5334 for said lands on June 7, 1872, alleging settlement on March 4, 1869, and on the same day transmuted said filing to homestead entry, No. 5312. On May 22, 1878, Elizabeth Pederson, widow of said Ingebright Pederson, deceased, made final proof showing that said Pederson was her husband in his lifetime; that he died on December 31, 1877; that he settled upon and occupied said land prior to June 7, 1872; that since the death of her said husband, she has continued to reside upon and cultivate said land up to the time of making said proof. The local land office accepted the proof and issued final certificate, No. 3763 thereon.

A hearing was ordered and had to determine the date of actual settlement on said land. From the evidence submitted, the register and receiver found that the subdivisional survey of said land was made in 1870, and the township plat was filed in the local office April 20, 1872, upon which is inscribed the house of E. Pederson on lot 4 of Sec. 36 —

122-44, and that said Pederson settled and established his residence on the land covered by his said entry on the 4th day of March, 1869. The record fails to show that any appeal was taken by the companies from the findings of the local office, but your office on February 2, 1884, considered the testimony taken at said hearing, concurred in the findings of the register and receiver, and held that "the Hastings and Dakota Railroad have no standing in this case, the St. Paul and Pacific, now St. Paul, Minneapolis and Manitoba Railway Company, having the prior grant, and as the tracts were settled upon and improved before the date on which the withdrawal for said last named company became effective, viz: June 2, 1869, the same were excepted from said withdrawal," and your office held said entry for approval for patent, "subject to appeal by said companies."

The St. Paul, Minneapolis and Manitoba Railway Company insists that said decision is erroneous, (1) In holding that the withdrawal for indemnity purposes did not become effective until June 2, 1869; (2) In holding that said land was settled upon by Pederson prior to the withdrawal; and (3) In holding that the land in question was excepted from said withdrawal.

The Hastings and Dakota Railway Company contends that, as the withdrawal for its benefit was prior to that for the St., Paul, Minneap olis and Manitoba Railway Company, it was error to hold that the Hastings and Dakota Company had no standing in the case; that the St. Paul, Minneapolis and Manitoba Railway Company could acquire no right to the land until selection thereof, as the tract was within the indemnity limits of its grant; citing Railroad Company v. Ryan, 99 U. S., 382, and Blodgett v. California and Oregon Railroad Company (6 C. L. O., 37).

Counsel for the St. Paul, Minneapolis and Manitoba Railway Company also state that, at the time of making final proof the claimant was not the widow of the deceased entryman, but had married Rasmus Pederson. This allegation is not sustained by the record, for that shows that the marriage did not take place until 1881, while the final proof was made in 1878.

It is quite clear that at the date when the order of withdrawal for indemnity purposes for the St. Paul, Minneapolis and Manitoba Railway Company was received at the local office, the land was settled upon and claimed by said Ingebright Pederson. The land had not then been surveyed, but after the filing of the township plat of survey the preemptor duly filed for the land, and transmuted his filing to a homestead entry. At the date of said filing, it was the ruling of the Department that the withdrawal for indemnity purposes did not take effect upon unsurveyed land, for the reason that until survey the settler could not tell whether he was upon an even or odd numbered section. (Vol. 1, Land Grant Railroads, 211) This ruling was subsequently changed, in accordance with the views of the Hon. Attorney General in his opin

ion, dated February 4, 1871 (13 Op., 378), upon the act of Congress approved March 3, 1863 (12 Stat., 772), granting lands to the State of Kansas for railroad purposes.

It was also held by this Department that the prior grant had the prior right to lands within the common indemnity limits, and that the grant became effective upon lands within the indemnity limits and the granted limits at the same time. This ruling was changed in 1879, in the case of Blodgett v. the California and Oregon Railroad Company (6 C. L. O., 37) upon the authority of the decision of the supreme court of the United States in the case of Michael Ryan v. The Central Pacific Railroad Company (99 U. S., 382), which held that under the provisions of the act of Congress approved July 25, 1866 (14 Stat., 239), the company could have no right to "lieu" lands until it actually selected the tracts as provided by law. See also Grinnell v. Railroad (103 U. S., 739); Cedar Rapids R. R. Co., v. Herring (110 U. S., 27); Kansas Pacific R. R. Co. v. Atchison, Topeka and Santa Fe Co. (112 U. S., 414); St. Paul R. R. Co. v. Winona R. R. (112 U. S., 720); Barney v. Winona & St. Peter R. R. Co. (117 U. S., 228); St. Paul, Minneapolis & Mani. toba Ry. Co. v. Bond (3 L. D., 50); Southern Pacific R. R. Co. v. Reed (4 L. D., 256); St. Paul, Minneapolis and Manitoba Company v. Northern Pacific Railroad Company (ibid., 426).

It is quite evident that under the rulings of the Department in force at the time said withdrawal for the benefit of the St. Paul and Pacific Railroad Company (of which the Manitoba road is the successor) became effective, the settlement of said Pederson served to except the land in question from the operation of said withdrawal. This ruling was uni formly followed, so far as I am advised, until the case of Serrano v. The Southern Pacific Railroad Company (6 L. O., 93), decided by my predecessor Secretary Schurz on July 2, 1879. The Serrano case was overruled by Secretary Kirkwood, on December 17, 1881, in the case of Trepp r. The Northern Pacific Railroad Company (1 L. D., 380). The claim of the Hastings and Dakota Railroad Company must be rejected for the reason, as we have seen, that when the withdrawal for its benefit was made, the construction of the Department was, that withdrawals. for indemnity purposes did not take effect upon unsurveyed land. This construction of the effect of said withdrawal must be presumed to be correct, for the reason that as this was an executive withdrawal by the Department, it should be given effect only to the extent which the Department intended it should have; and, hence, the land in question. having been surveyed subsequently to the withdrawal for the benefit of the Hastings and Dakota Company, was subject to settlement and entry at the date of the settlement of said Pederson.

it follows, therefore, that his settlement and entry were duly made, and that said decision of your office holding the entry for approval was

correct.

It is accordingly affirmed.

SCHOOL INDEMNITY-CERTIFICATION-FRACTIONAL TOWNSHIP.

WRIGHT ET AL. v. STATE OF CALIFORNIA ET AL.

The certification of land is equivalent to patent therefor; and an application to enter patented land confers no right upon the applicant either in the courts or the Department to question the validity of the patent by which title passed from the government.

While the State of California is not entitled to make indemnity selections in lieu of school sections that are swamp or overflowed, yet certifications made prior to the passage of the act of March 1, 1877, for losses alleged in townships made fractional by the segregation of swamp lauds, will not be disturbed.

Secretary Vilas to Commissioner Stockslager, January 5, 1889.

This case comes before the Department upon the separate appeals of Elisha Wright and other appellants from the decision of your office of November 26, 1887, rejecting their applications to enter, respectively, under the homestead and pre-emption laws, the tracts opposite their respective names, as set forth in your letter of said date, to which reference is hereby made.

You rejected said applications upon the ground that the lands applied for, having been approved and certified to the State of California, they were not subject to entry, and that the applicants could acquire no rights under their applications, as the title to said lands had passed out of the government by the approval and certification of said lands. While this case was pending in your office, and prior to the decision of your office above referred to, James W. Shanklin, Esq., counsel for respondents, addressed you a communication, with a view to obtain from your office an autlioritative expression as to the validity of the bases of certain indemnity school land selections, which embraced the land above referred to.

In response to this communication, your office by letter of October 17, 1887, held that some of the selections above referred to are valid and some must be held as invalid in whole or in part, and others are held in abeyance because it has not been decided whether the bases used were swamp land or water at the date of the swamp land act.

There was no error in your decision rejecting the applications of Elisha Wright and the other appellants to enter said lands, because the certification of said lands was equivalent to patent, and an application to enter patented land confers no right upon the applicant either in the courts or the Department to question the validity of the patent by which title passed from the government. Story v. Southern Pacific Railroad Company (4 L. D., 396). Your decision rejecting said application is therefore affirmed.

As to the validity of these selections, it has been decided by the Department, in the case of the United States v. the State of California,*

8 L. D., 4.

that while the State of California is not entitled as other States are, under the language of the various acts providing for indemnity, to make selections for swamp lands merely because they are swamp or overflowed, yet that certifications to said State for deficient sections in townships made fractional by a survey segregating the swamp land found therein which were certified prior to the act of 1877 will not now be canceled.

The principle announced in said case controls the case now under consideration, so far as it affects the rights of the State, and your said decision, so far as it conflicts with the principles therein announced, is hereby reversed.

RAILROAD GRANT-ACT OF FEBRUARY 8, 1887.

NEW ORLEANS & PAC. R. R. Co.

The grant to the New Orleans and Pacific railroad company took effect when the Secretary of the Interior was notified that said company, through the action of a majority of its stockholders, had accepted the provisions of the act of February 8, 1887, and agreed to discharge all the obligations imposed upon the New Orleans, Baton Rouge, & Vicksburg company by the act of March 3, 1871.

After the performance of said conditions, the last named company, or its mortgagees, or bondholders, have no standing in the Department to protest against the issuance of patents, but must look to the courts for protection.

Secretary Vilas to Commissioner Stockslager, January 5, 1889.

On February 8, 1888, you submitted to the Department for approval for patent two lists of selections of lands made by the New Orleans Pacific Railroad Company, containing 77,213.27 acres, as follows:

List No. 5, 35,693.97 acres,

List No. 6, 41,519.30 acres.

While said lists were pending in the Department for consideration, a letter was received from Mr. John B. Sweat, dated March 1, 1888, stating that he had been retained to file in the Department a protest against the issue of patent for lands to the New Orleans Pacific Railroad Company until that company had complied with the provisions of section three of the act of Congress, approved February 8, 1887, and asking for certain time in which to file said protest, which was granted. The protest not having been filed within the time allowed, it was extended until the 30th day of May. Having no knowledge that any such protest had been filed, I directed that said lists be returned to your office, for the purpose of having the bases incorporated in the lists, and on July 14th last, I approved said lists and transmitted them to your office. After said approval had been made, a letter was received from Mr. Sweat, stating that the protest had been filed, and after diligent search it was found in the office of the Assistant Attorney General, where it had been mislaid.