by an accompanying application to appropriate the same. But in this case the company has already acquired title to the tracts named. The local officers after being satisfied that all the regulations of the Depart ment were complied with have found these tracts to be non-mineral and no appeal having been taken from their finding, it is accordingly hereby approved. The character of said tracts being so determined they passed to the company by virtue of its grant. But in view of the established practice of your office you will now require the company to list the sev eral tracts nunc pro tunc.

The action of your office is modified accordingly.

SCHOOL INDEMNITY-STATE OF MINNESOTA.
JOHN B. DISCH.

Where the land used as the basis of selection would have been double minimum, if it had not been reserved for school purposes, the State is entitled to select double minimum land in lieu thereof.

Secretary Vilas to Commissioner Stockslager, January 9, 1889.

I have considered the appeal of John B. Disch from your office decision of August 12, 1887, rejecting his application to make homestead entry for NW. Section 20, T. 105, R. 42, Worthington, Minnesota,

land district.

Appellant's application was rejected because the land applied for was covered by school indemnity selections made August 3, 1878, per list No. 4.

List No. 4 was a selection made in behalf of the State of Minnesota by the Commissioner of the State Land Office, August 3, 1878, of NW. 4, Sec. 20, T. 105, R. 42, in lieu of the same quantity of land in Sec. 16, T. 104, R. 8.

In your said decision you say the tract was "enhanced to the double minimum price of $2.50 per acre long prior to the said selection; but it was decided by letter to you of July 29, 1887, that the lands lost to the State by reason of pre-emption entries in Sec. 16, T. 104, R. 8, upon which loss this selection is based, had been enhanced to the double minimum price at the date of the school grant, and that the selection, is therefore, valid under existing rulings."

The grant of the sixteenth and thirty-sixth sections to the State of Minnesota for school purposes, was made by act of February 26, 1857, (11 Stat., 166) by certain propositions offered to the convention of delegates of the people of the Territory of Minnesota, which, if accepted by the convention should become obligatory upon both the United States and the State of Minnesota, the first proposition being

That sections numbered sixteen and thirty-six in every township of public lands in said State, and where either of said sections or any part thereof, has been sold or otherwise disposed of, other lands equivalent thereto and as contiguous as may be, shall be granted to said State for the use of schools.

This convention, held August 29, 1857, adopted and accepted said proposition and by the act of May 11, 1858, Minnesota was admitted to the Union, and the said grant became effective from and after that date. The lands in section 16, T. 104, R. 8, are within the granted limits of the Southern Minnesota Railroad, which you say in your letter of July 29, 1887, submitted with the record, was definitely located February 20, 1858.

The lands which were the basis of the selection herein described, would, if not in the reserved school section, have become by this act of definite location double minimum in price and, as under the grant above cited, the State is entitled to "other lands equivalent thereto," it may well be held that double minimum lands of the same character, selected as indemnity, are only equivalent to the lands lost to the State. Such lands are certainly like in quality and when a like quantity has in such cases been selected I can see no reason why the same should not be approved. They are besides within the fair requirement of contiguity. Whatever may be the rule in general, I think these lands selectable in this case.

It follows of course that said tract is not open to homestead entry. Your said decision is accordingly affirmed.

SCHOOL INDEMNITY—FRACTIONAL TOWNSHIP DOUBLE MINIMUM

LAND.

STATE OF MINNESOTA.

The State is entitled to select indemnity that is of the same general character and belonging to the same class as the land it would have received had there been no deficiency in the township.

Secretary Vilas to Commissioner Stockslager, January 9, 1889.

I have considered the appeal of the State of Minnesota from your office decision of July 11, 1887, holding for cancellation the selection of the S. of Sec. 6, T. 129 N., R. 29 W., 5th P. M., St. Cloud, Minnesota, land district.

This land and the whole township within which it is situated were within the six mile or primary limits of the old St. Paul and Pacific Railroad (branch line), under the grant of March 3, 1857. All the even numbered sections in this township were, by the filing of the map of definite location of said road on December 5, 1857, enhanced to the double minimum price of $2.50 per acre. On March 7, 1870, the State of Minnesota applied to select the said S. of Sec. 6, T. 129 N., R. 29 W., 5th P. M., in lieu of the deficiency of three hundred and twenty acres of school land in the same township, said deficiency being occasioned by that township being fractional and there being no 16th or 36th section therein. In your office it was found that the State was entitled to

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three hundred and twenty acres of indemnity to make up the deficiency in said township, but that the State lost no lands in that township that had been enhanced to the double minimum price, and that she was not entitled to select double minimum lands to supply the deficiency existing there, and the selection was held for cancellation.

I can not concur with this decision. If said township had been full and regular, instead of fractional, the State would have received lands of the same class as the tract she is now asking for. It seems to me to be just and in entire accord with the letter and the spirit of the law that the State should be allowed to select as indemnity lands that are of the same general character and belonging to the same class as those she would have received if there had been no deficiency in this township.

The question as to the right of the State of Minnesota to select double minimum lands as indemnity for lands lost in place, which would had they not been in the reserved school sections, have been raised to the double minimum price, was discussed and decided in the case of John B. Disch, decided by me this date.

For the reasons herein set forth, the decision appealed from is reversed, and it is directed that said selection be approved, unless there be some reason, not appearing in the record now before me, for rejecting it.

RAILROAD GRANT-RIGHT OF INDEMNITY SELECTION.

ALABAMA & CHATTANOOGA R. R. Co.

The right to select indemnity does not extend to lands within the granted limits of another road, though such road may not have been constructed within the time fixed by the statute, but was definitely located, and the grant therefor remains unforfeited.

Secretary Vilas to Commissioner Stockslager, January 10, 1889.

I have considered the appeal of the Alabama and Chattanooga Railroad Company from the decision of your office, dated May 28, 1887, rejecting so much of its selection of lauds for indemnity purposes as falls within the granted limits of the grant to the State of Alabama by act of Congress approved June 3, 1856 (11 Stat., 17) for the benefit of "either the Coosa and Chattooga, the Coosa and Tennessee, or the Selma,, Rome and Dalton (formerly Alabama and Tennessee) Railroads."

Said rejection was made upon the authority of departmental decision in the case of the Alabama and Chattanooga Railroad Company v. Tennessee and Alabama Railroad Company (5 L. D. 582).

The contention of the appellant is, (1) That this Department had no jurisdiction to render the decision cited by your office, because the lands in controversy had been certified to the State of Alabama prior to 1860, in part satisfaction of the first one hundred and twenty sections granted to the Tennessee and Coosa Railroad Company. (2) 16184-VOL 8-3

That "the first section of the act of Congress of June 3, 1856, in the following words: That there be and is hereby granted to the State of Alabama, for the purpose of aiding in the construction of railroads.

from Gadsden to connect with the Georgia and Tennessee lines of railroads, through Chattooga, Wills and Lookout Valleys,' has been uniformly construed by this Department and the courts as conferring a grant to the northern end of the railroad, which, by consolidation with the Northeast and Southwestern Railroad, under authority of the act of the Legislature of Alabama of 1868, became the Alabama and Chattanooga Railroad." (3) That it is evident that Congress never intended to make any grant to or for the Coosa and Chattooga Railroad, and the acceptance of the map of definite location filed by the Coosa and Chattooga Kailroad Company was unauthorized, and should not estop this Department from declaring that there was no grant for the benefit of said Coosa and Chattooga Railroad Company.

It is further urged by the appellant company that the Selma, Rome and Dalton Railroad was never built between Jacksonville and Gadsden, and the lands that it might have received if constructed between said points were granted to the Alabama and Chattanooga Company by the act of the Legislature of Alabama, dated February 20, 1883.

It is further urged by the Alabama and Chattanooga Company that by the third section of the granting act, "all the lands granted are expressly made subject to the disposal of the Legislature of the State for the purposes disclosed in the grant:" that the Tennessee and Coosa Company having failed to construct its road within the required time, and Congress by act approved April 10, 1869 (16 Stat., 45), having renewed the graut in favor of the Alabama and Chattanooga road, and not in favor of the Tennessee and Coosa road, the State of Alabama had the right to dispose of the lands within the conflicting limits to the road which had been constructed, and that the Alabama and Chattanooga Railroad Company should be permitted to select for indemnity purposes lands falling within the granted limits of the other roads, conflicting with the indemnity limits of the Alabama and Chattanooga road.

It is a sufficient answer to the objection as to the jurisdiction of the Department to render the decision of January 29, 1887, holding that "land within the granted limits of a road not constructed within the required time, but definitely located and not forfeited by Congress, is not subject to the indemnity selection of another road," to say that the question of jurisdiction was expressly presented to the Department, and the objection was urged in support of the motion asking for a modification of said departmental decision, dated January 13, 1887, "that the lands in controversy had been certified over to the State of Alabama for the benefit of the Tennessee and Coosa road, and therefore this Department has no authority and jurisdiction to pass upon the merits of the case at all." But the motion for modification was denied, for the reason that if the additional facts had been presented, the decision might have been

based upon a somewhat different ground; but it was stated that the decision was rendered upon careful consideration of the whole matter, and it did not appear that it was "in any particular incorrect."

On December 21, 1859, your predecessor, Commissioner Smith, addressed a letter of inquiry to this Department, and asked to be advised, "(1) Whether the law of Congress authorizes the construction of two roads as construed by the authorities of Alabama, and, if so, (2) whether in our adjustment, we shall certify the lands within the limits of each road to the State for their joint benefit."

On February 6, 1860, your predecessor, Commissioner Wilson, referring to said letter of inquiry, dated December 21, 1859, which had been the subject of an oral conference with the Secretary on the same morning, reported:

That comparing with the act the geographical features of the section of the country in the north eastern part of the State to be traversed by the Railroad contemplated by the above mentioned act, I am of the opinion that the terms of the grant can be made completely operative and effective only by giving to it such construction as that given by the authorities of the State, to wit, two roads, one through Chattooga Valley, the other through Wills and Lookout Valleys.

On February 7, 1870, Secretary Thompson advised your office (Vol. 5, L. & R., 492), that he had examined the act of Congress, approved June 3, 1856, and concurred in the manner of adjustment proposed by your office, to wit: on the basis of two roads. Secretary Thompson said:

To the casual reader, I think it would appear that one road only was provided for; bnt on examination of the subject it appears that the construction of one road "through three valleys is geographically impossible; that the State had chartered two companies in 1852, one to construct a road from Gadsden through Wills and Lookout Valleys to the Tennessee line of roads; and that the State Legislature in 185× has transferred the grant to these two roads alike. The law of Congress also has named both "the Georgia and Tennessee, and Tennessee line of Railroads," which words not inaptly designate two termini for roads connecting from Gadsden. I therefore agree with you that all the calls of the grant can only be filled by the recognition of two lines of road from Gadsden one connecting with the Tennessee line of railroads and the other with the Georgia and Tennessee line, the former passing through Wills and Lookout Valleys, and the latter through the Chattooga Valley.

I am not advised that there has been any departmental or judicial decisions adverse to the views expressed by Secretary Thompson, and an adjudication by the head of the Department that has stood for almost thirty years, unchallenged, ought not to be overruled, unless clearly contrary to law.

I conclude, therefore, that by the third section of said act, a grant was made for the benefit of a railroad to be constructed from Gadsden through the Chattooga Valley to the Georgia and Tennessee line, and that the contention of the appellant company that no grant was ever made, "to or for the Coosa and Chattooga railroad," can not be maintained. The Coosa and Chattooga railroad company, duly organized and authorized to construct said road by the act of the Legislature of