Also by the fourth section of the act of July 13, 1866, hereinbefore quoted, the proviso of which is equally decisive of the purpose of Congress.

It being thus seen that, beyond all question, Congress intended that the indemnity limits of each specific grant should be available to make good all deficiencies occurring in such grant, for what end or purpose were the terms employed in the particular grant under consideration, by which two of the roads were required to be built with branches, except that the branches were to be regarded as parts of the same enterprise with the main road? If the branches were to be treated as distinct and separate lines for the purposes of grant, why were they not mentioned as distinct lines? In other words, does this act manifest the purpose of Congress to make six land grants or four land grants? It must be observed that the entire act is devoted simply to making grants of land and prescribing the terms upon which the grants were given; it is not an act for the charter of railroads and the definition of their routes and powers, but simply to induce the construction of certain systems of railroads which were believed to be of such public value as to justify this extensive contribution to their cost. If the Congress had not intended the branch to be in every respect regarded as part of the enterprise which it first described, upon what rational theory can this language and the peculiar arrangement of the description of the different lines be supposed to have been adopted? These inquiries possess peculiar force because of the separation of the branch from the connecting road in the description of the fourth grant. That road might also have been called a branch as well as either of the others. Its western terminal is "a point of junction with" the third of the roads to which aid was given; and the separate description leaves the character of the grant for it unmistakably independent. Thus the difference in the arrangement and description was clearly recognized and it would violate plain rules of interpretation to say that a different effect was not designed by so clear a variation. And when attention is called to the fact, already adverted to, that similar grants had been previously made to the States of Illinois, and to Arkansas and Missouri, and that the interpretation and administration of such grants had treated the branch as part of the road, the conclusion seems irresistible that the collocation of words and phrases in the description of the roads designed to be aided, was in execution of the deliberate purpose to fix the grant for the branches as a part of the grant for the road. It is obvious that the United States suffered no loss by this course. The purpose was to secure the construction of the railroad by giving six sections of land to aid the building of each mile. To treat the whole as one, although the branch departed from the main stem at some point along its course, operated to take no more lands from the government than as if the branch had been extended, as in the case of the grant to Illinois, from one end of the main stem. No more lands than

were proffered by the grant would in the end be taken, and it is not to be presumed that Congress designed that any less should be held out as an inducement for the construction of the road.

This argument is re-enforced by the subsequent legislation in 1865, by which both the quantity of the grant was increased four sections to the mile, and, by the words already quoted, the right to take deficiencies from the entire extent of the indemnity limits for deficiencies occurring at any point, was recognized as a plainly existing right.

Against this view, the argument which would restrict the right to take only from the indemnity limits of the branch for deficiencies in the grant for the branch, and only from the limits of the main stem for deficiencies in the grant for the road, rests entirely upon the use in the act of words of particularization which may be thought to be designed to distinguish the branch from the road, as well as one road from another; as where it is said that the indemnity lands "shall in no case be further than fifteen miles from the lines of said roads or branches, and selected for and on account of each of said roads or branches;" and in the next proviso, "that the lands hereby granted for and on account of said roads and branches, severally, shall be exclusively applied in the construction of that road for and on account of which such lands are hereby granted." But it will be observed that on the theory that Congress intended to graut lands to aid in the construction of but four instead of six distinct enterprises, each to be treated as an entirety, including the branch as part of the road, all this language was equally necessary to be employed to distinguish the relative grants to each; and that inasmuch as such words were necessary for that purpose, and are fully satisfied by that interpretation, it is carrying their force beyond the necessity of their use and raising upon words fully satisfied by the other reading a limiting and narrowing construction, to hold them also to distinguish the "branch" as a separate enterprise from the "road " to which it was necessarily attached, and a construction quite inconsistent with the obvious general purpose and character of the grant. It is to permit a word to destroy a purpose which the act seems to carry plainly on its face. Besides, perhaps as fair an inference can be derived from the different uses of the conjunctions "and" and "or", and from the use of the word "road” as comprehending the branch as well as the main stem, in favor of the other theory, as can be derived from the word "each" and "severally" in favor of the narrower interpretation. Thus, in the first proviso the limit of fifteen miles must necessarily have been expressed to be from either the road or branch, and so the selection must have been for or on account of the road or branch, and therefore the disjunctive conjunction was employed; while, in the next proviso it is said the lands granted for and on account of said roads and branches shall be exclusively applied in the construction of that road for and on account of which granted, in which case the word road seems to comprehend the branch as part of it; and the adverb "severally"

may as properly be applied to distinguish the four general enterprises as to distinguish the branch from the road, and perhaps more so. Again, in the act of 1865, it is provided that until "the Secretary of the Interior shall be satisfied that the whole of any one of said roads and branches is completed, etc.," patents to all the remaining lands granted for and on account of said completed roads and branches are not to be delivered.

I do not perceive anything in the case of the Northern Pacific Railroad Company against Guilford Miller which affects the question now under consideration. No such question was involved in that case, and if any suggestion occurs to the mind of the reader from any language used in that case, either for or against the question here involved, it was not employed for any such purpose, nor was any such idea in my mind.

Upon the whole case, I am unable at least to say that any such "cogent reasons appear to exist as show that the adjudication made in 1875 in respect to this company ought to be changed, but am of opinion that it is the duty of the Department and your office to proceed in the adjustment of this grant in accordance with the principles then settled and hitherto followed.

HOMESTEAD ENTRY-PRE-EMPTION CLAIM.

JOSEPH W. MITCHELL.

One who has shown due compliance with the pre-emption law, submitted final proof, and made payment for the land, may legally enter another tract under the homestead law, though final certificate may not have issued on his pre-emption proof. First Assistant Secretary Muldrow to Commissioner Stockslager, February 27, 1889.

The decision rendered November 30, 1888 (7 L. D., 455), in the case of Joseph W. Mitchell, involving his homestead entry for the SW. of Sec. 12, T. 26 N., R. 29 E., North Yakima, Washington Territory, was recalled by letter of December 24, 1888, some question having been raised as to the proper construction to be placed upon the conclusion reached in said decision.

Mitchell made the entry in question June 6, 1884, and your office held said entry for cancellation for the reason that he had made pre-emptiou proof on another tract April 28, 1884, on which cash certificate did not issue until June 16, 1884. This decision of your office rested on the theory that Mitchell, at the the time of making homestead entry, was maintaining a pre-emption claim for another tract, and if the facts in the case had supported such conclusion the decision would have been affirmed by the Department. But Mitchell urged on appeal that he should not be made to suffer for the neglect of the land office to promptly issue final certificate on his pre-emption proof, when it was submitted; and examining this ground of appeal, the Department found that as a matter of fact the record in Mitchell's pre-emption claim did

not disclose any fault or irregularity on his part therein. Though it is true that certificate did not issue until June 16, on the proof submitted April 28, yet patent afterwards issued to Mitchell without any question being raised as to the validity or regularity of the final proof proceedings. On this state of facts the Department held in its decision of November 30, that "the record of claimant's pre-emption claim shows that he had, at the date of his final proof, complied with the requirements of the pre-emption laws; though the legal title after that remained in the United States, the equitable title was in him; he could have then before the issuance of the cash certificate, disposed of the land by sale if he had so chosen."

In short the Department found that Mitchell in his pre-emption claim had, on April 28, 1884, done everything that the law required in order to secure his title to the land covered thereby, that he had at that date shown sufficient residence and improvement and paid for the land, and that no presumption as against such conclusion could be properly founded solely upon the fact that the local office did not then issue the certificate.

The phrase "complied with the requirements of the pre-emption law" as used in said decision, was intended to express the finding that Mitchell had performed each obligation laid upon him by said law, not only in the matter of residence and improvement, but also as to payment of the purchase price at the proper time.

The Department therefore adheres to its former conclusion.

PRE-EMPTION ENTRY-INNOCENT PURCHASER-JURISDICTION OF THE

DEPARTMENT.

SMITH v. CUSTER ET AL.

The Commissioner of the General Land Office, and the Secretary of the Interior, are vested with full jurisdiction to pass on the validity of a pre-emption entry allowed by the local officers.

A pre-emption claimant acquires no title to public land, until he has fully complied with all the pre-requisite requirements, and paid for the land.

The pre-emptor takes by final proof, payment and the receipt of final certificate, only a right to a patent, in the event that the General Land Office, or the Department on appeal, find that the facts warrant the issuance thereof.

One who purchases land from a pre-emptor prior to patent, acquires no greater right than existed in the pre-emptor, and is charged with knowledge that the legal title remains in the United States, subject to the necessary inquiry and determination by the Land Office and Department on which patent may issue. A contract to convey the land on receipt of final certificate, made by the pre-emptor prior to final proof, renders the entry fraudulent and requires its cancellation. It is the duty of the Department to cancel any entry which has been made contrary to law, or of lands not subject to such entry, or by a person not qualified, or where compliance with legal pre-requisites did not take place, or where by false proofs a seeming compliance was fraudulently established.

Secretary Vilas to Commissioner Stockslager, February 27, 1889. The land involved herein is the NW. of Sec. 32, T. 5 N., R. 31 E., La Grande district, Oregon.

The record shows that on June 21, 1880, John Custer filed pre-emp tion declaratory statement for the tract, alleging settlement thereon May 17, of the same year.

He made final proof before a notary public at Pendleton, Oregon, October 16, 1882, which was acted upon and approved by the local officers, October 19, 1882, and cash entry certificate, No. 1177, issued thereon.

On February 10, 1883, the local officers transmitted to your office the corroborated affidavit of D. K. Smith, attacking the validity of said entry, alleging, in substance, that the same is fraudulent and void; that the entry was not made in good faith, for the use and benefit of the entryman, but was in fact made for the use and benefit of one J. H. Cavanaugh, that prior to the date thereof, the entryman, together with his brother Josiah Custer (who at the same time made pre-emption cash entry No. 1176, for the SE. 4 of said Sec. 32), entered into a written contract, by which they agreed, for the expressed consideration of $1400, to convey to said J. H. Cavanaugh the land here in question, together with that embraced in the entry of Josiah Custer, as soon as title was obtained from the United States; that Cavanaugh paid all the fees and costs attending the making of final proof, and also furnished the money to pay for the land when the entry was made; that in pursuance of said written contract, John Custer did, on the day the entry was made, and before he had received notice that his proof had been favorably acted upon by the local officers, convey to Cavanaugh the land in question, and has since that date exercised no acts of ownership on the same.

Acting upon these charges, your office, on May 1, 1885, directed that a hearing be had to determine the questions raised thereby. The hear ing took place before the local officers in June, 1885. Both parties appeared in person and by attorney, and the entry was also defended by one John Walker, transferee of Cavanaugh, who filed affidavits disclosing his interest in the subject matter of the controversy.

Walker further interposed objection to the jurisdiction of the Land Department in the premises, on the ground that final receipt and cash entry certificate had been issued on the proofs submitted, insisting, in effect, that such receipt and certificate were conclusive evidence of the validity of the entry in all respects, so far as the Land Department is concerned.

Upon the testimony submitted, the local officers found against Walker, on the question of jurisdiction, and further, that Custer's entry "was made in fraud of the pre-emption law, at the instance and for the benefit of J. H. Cavanaugh, and not for the use and benefit of the entryman; that at the date of said entry and prior thereto there was an agreement and understanding that the land was to be deeded to Cavanaugh, which agreement was effectuated October 19, 1882, at Pendleton, Oregon, the same day that the entry was made at this office," and thereupon they recommended that the entry be canceled.