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Doll filed his declaratory statement March 11, 1886, alleging settlement January 1, 1884.

At the time Doll made his final proof the said railroad company offered formal protest against the acceptance of said proof and against the entry.

In your said decision you say, "inasmuch as the indemnity withdrawal has been revoked, and the land not selected for railroad purposes, the company has now no interest in the land, and its protest is dismissed."

On appeal the Railroad Company, as grounds of error, claim:

1st. That as the land was withdrawn in 1871, it was not subject to pre-emption settlement by Doll in 1884.

2nd. Error in holding that the railroad company had not selected the lands.

Upon the first proposition above, it may be said in reply that the record shows Doll to have made his settlement in January, 1884, and to have remained thereon continuously until he made final proof in October, 1886, and while as against the said railroad company's rights this settlement would have been unavailing, had they exercised them in time, they cannot now be heard to raise the question as they no longer have any interest in the land.

As to second ground of error assigned, i. e., that it was error to hold that said company had not selected said lands, no evidence of a selection is submitted and upon inquiry at the proper division of the land office, it appears that list No. 11, which it is alleged in the appeal was filed in the local offic ctober 7, 1887, did not reach the General Land Office until after your said decision was promulgated and the amended list now on file does not contain the land in controversy so that it can not now be determined by me whether the said tract was or was not in the original list. But if it was it is immaterial in the view I take of the case. Said list was not filed until October 7, 1887, and while the land officers could not receive filings until the expiration of the thirty days notice, October 14, 1887, the order of revocation took effect as soon as issued and actual settlement might have been made at See Atlantic and Pacific Railroad Co. (6 L. D., 84 (92)).

once.

The order of revocation was made August 15, 1887, and as a new settler might, after that date and before the application of the company to select, have made settlement upon said lands, and as there would then exist no legal reason why his settlement should not ripen into a title, the railroad company would acquire no right thereto as against such new settler, by subsequently including the same in a list of selec tions. Northern Pacific Railroad Co. r. Waldon (7 L. D., 182). It cannot be said that Doll an actual settler at the time the restoration took effect, could have less right to the land than such new settler. Your said decision is accordingly affirmed.

TIMBER CULTURE CONTEST-RELINQUISHMENT.

SORENSON v. BECKER.

A relinquishment filed after the initiation of a contest does not inure to the benefit of the contestant, unless it be found that it was filed as the result of the coutest. In case of a timber culture contest, accompanied by an application to enter, the right of the contestant depends upon the establishment of the default alleged against the entryman; but such right cannot be defeated by a relinquishment filed after the initiation of the contest.

First Assistant Secretary Muldrow to Commissioner Stockslager, March 22, 1889.

I have considered the case of James O. Sorenson v. Charles Becker on appeal by the former from your office decision of March 3, 1887 cancelling his timber culture entry for the SE of Sec. 18 T. 109 N., R. 53 W., Watertown Dakota land district.

One Ann Leonard made timber culture entry for said land June 18, 1878. On May 21, 1884 Charles Becker filed affidavit of contest sworn to May 19, against said entry alleging failure to break, cultivate and plant to tree seeds, cuttings or trees, as required by law in the first, second, third, and fourth years. It is stated by Becker and in your office letter of September 20, 1884 that this affidavit was accompanied by an application to make timber culture entry for said tract.

On May 22, 1884, Sorenson appeared at the local office and presented a relinquishment executed May 20, by Aun Leonard, of her entry and at the same time presented his application to make timber culture entry for said tract. This relinquishment was accepted, Leonard's entry canceled and Sorenson's application to make timber culture entry allowed. On the same day, Becker's affidavit of contest was rejected being marked "Rejected May 22, 1881 as relinquishment of the entry is this day filed in this office, and the entry canceled and awarded to the first legal applicant tendering the fees and commissions." Becker appealed from that decision and your office, on September 20, 1884 decided "when Becker presented his application to make timber culture entry with his affidavit of contest thereby complying with the requirements in such cases he acquired a prior right to enter the land whenever it should become vacant either by reason of said contest or otherwise," allowed Becker's application to entry and held Sorenson's entry for cancellation. It should be noted that there is nothing in the record now before me to show that Sorenson was served with notice of Becker's appeal or that he was given an opportunity to present his claims to your office prior to the rendition of said decision. Becker was notified of this decision and of his preference right of entry December 5, 1884, and on the 11th of that month filed his application to make timber culture entry for said land, which application was allowed and entry No.

10588 made by said Becker. By letter of May 14, 1885 your office wrote to the local officers, "Timber culture entry No. 10588 Charles Becker SE Sec. 18 T. 109 R. 53 Dec. 11, 1884, is suspended for conflict with timber culture entry No. 10080 James O. Sorenson same tract, May 22, 1884," and directed them to notify Becker that he would have sixty days to show cause why his entry should not be canceled. On June 17, 1885, Ann Leonard filed a petition asking that she be allowed to withdraw the relinquishment of her said timber culture entry and that a hearing be ordered in the matter of Becker's contest against said entry. In her affidavit in support of said application, which affidavit is corrob orated by Sorenson and seven other witnesses it is set forth, that up to the date of her relinquishment she had fully complied with the requirements of the law in all particulars; that at the time of making said relinquishment she knew of no contest; that "my relinquishment was not made for purposes of speculation, but simply and only because I am a widow and old and poor and unable to give my tree claim proper attention, and that I never received or was to receive more for my said relinquishment than my tree claim had cost me for filing, breaking, planting, cultivating and other expenses." This petition was refused by your office, and in the letter of March 3, 1887, passing upon the same, it was said "the entry of Sorenson is this day canceled." On May 24, 1887, Sorenson filed an appeal "from the action of the Hon. Commissioner of the General Land Office in ordering the cancellation of said entry." After considerable correspondence between your office and the local officers, it was concluded that Sorenson had not been notified by the local officers of the decision of March 3, 1887, and that his appeal was filed in time and should be allowed.

Becker claims that because Leonard's entry was canceled upon relinquishment filed after the filing of his contest affidavit he became entitled to a preference right to enter said land. This does not, however necessarily follow. That right is extended to one who has contested, paid the land office fees and procured the cancellation" of an entry by the provisions of the second section of the act of May 14, 1880 (21 Stat., 140). Unless it be found that the filing of this relinquishment was brought about by the filing of the contest affidavit the contestant is not under the decisions of the Department entitled to a preference right of entry. The act of June 14, 1878 (20 Stat., 113) provided that if at any time before the issuance of patent the claimant thereunder should fail to comply with any of the requirements of that law "then and in that event such land shall be subject to entry under the homestead laws, or by some other person under the provisions of this act," the rights of the parties to be determined as in other contested cases. Unless Leonard had failed to comply with the requirements of the law at the date of the filing of Becker's affidavit of contest and accompanying application to enter, if such application did accompany his affidavit, he (Becker) secured no right thereunder. If such failure on the part of Leonard

did really exist then Becker should not be deprived of the legitimate fruits of his diligence in bringing that failure to the notice of the proper authorities by a relinquishment filed subsequently to his application to contest and make entry. In view of all the circumstances of this case I am of the opinion that the rights of these respective parties can be determined only by a hearing had for that purpose. You will therefore please direct the local officers to order a hearing of which all parties in interest should have due notice, to determine whether or not there was a failure on Leonard's part to comply with requirements of the law under which her entry was made and whether the execution or filing of her relinquishment was due to the attack by Becker upon the validity of her said entry, and such other facts as may be of service in determining the rights of these parties.

The decision of your office is accordingly modified.

RAILROAD GRANT-TIMBER TRESPASS.

NORTHERN PACIFIC R. R. Co.

The right of recovery as against a railroad company for the value of timber taken from odd sections within the indemnity limits, is not defeated by a subsequent selection of the lands by the company.

Secretary Noble to the Attorney General, March 19, 1889.

I have the honor to acknowledge receipt of a communication from the Department of Justice of the 12th ultimo, transmitting a copy of a letter from the United States district attorney for Minnesota relative to the timber trespass cases of the United States v. De Graff and Co., and the Northern Pacific Railroad. company, asking whether said suits should be brought to trial at the adjourned term of the court in April next. In the communication from the Department of Justice above referred to, it is stated that "the question is, whether the lands involved in the trespass are on the even or the odd numbered section."

It appears from the report of the special agent upon which such suit was recommended, and also from the report of the Commissioner of the General Land Office, that these suits were brought for the recovery of the value of timber and railroad ties taken from odd sections only of land in the State of Minnesota, within the forty miles indemnity limits of the Northern Pacific road known as the second indemnity belt.

The suit was instituted upon the recommendation of the Commissioner of the General Land Office, made August, 1883. At this date the land upon which the trespass was alleged to have been committed had not been selected by the railroad company, but on May 24, 1884, the Commissioner made another report in which he stated that prior to the commencement of the suit the railroad company selected said lands

under the indemnity provisions of its grant-said selections having been made October 17, 1883.

The lists of said selections are now pending before the land department for examination, and will be finally approved and certified to the company in the progress of the adjustment of said grant, if upon said examination it should appear that said selections are legal and proper in all respects; yet although said selections may eventually be certified to the company, such certification can only relate to the date of selection—and not defeat the right of the government to recover for a trespass committed on said land prior to selection, because the title of the company to indemnity land attaches from the date of selection only, and not at the date of the grant.

In the case of Barney v. Winona Railroad Company (117 U. S. 232) the court after observing that there is a well established distinction between "granted lands" and "indemnity lands" said:

The former are those falling within the limits specially designated, and the title to which attaches when the lands are located by an approved and accepted survey of the line of the road filed in the Land Department, as of the date of the act of Congress. The latter are those lands selected in lien of parcels lost by previous disposition or reservation for other purposes, and the title to which accrues only from the time of their selection.

Again in the case of the Kansas Pacific Railroad company e. Atchisou Topeka and Santa Fe Railroad Company, the court held that the right to select lands within indemnity limits, in lieu of lands lost in the granted limits, conferred only a right to select them within certain limits and did not confer a right to any specific land or lands, capable of identification.

The court say:

That grant to Kansas as stated, conferred only a right to select lands beyond ten miles from the defendant's road upon certain contingencies. It gave ro title to indemnity lands in advance of their selection. (112 U. S. 42.)

To the same effect is the ruling in the case of McCreery v. Haskell (119 U. S., 327), holding that the approval of the Secretary of indemnity school selections vests the title in the State as of the date of selection.

Under the ruling of the supreme court in the cases above cited, it would seem that the right of the government to recover for the value of timber taken from lands in the indemnity limits of a railroad grant and subsequently selected by the company, would not be defeated, although the selections might be eventually approved and certified to the company; but in my judgment, the case is rather technical, and justice does not require the prosecution of the claim-but all is submitted for your further consideration.

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