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It was also stated in that case that the Department having repeatedly held it improper to cancel an entry upon the report of a special agent, the same principle should apply to reports of local officers, when such reports are based upon matters not in evidence at the hearing.

After further and mature consideration, I think that the rule thus enunciated is in all respects proper, and in view thereof, this case must either be decided in favor of the claimant upon the testimony submitted, or it must be remanded for a further hearing, by reason of the matters contained in the register's opinion and letter of transmittal, and the said affidavit of Bynum. These matters are sufficient, I think to warrant the Department in directing that a further hearing be had to determine, in the regular manner, the true status of the land in question.

Notwithstanding the irregularity as to time of examination and manner of making use of the view of the premises, which has occasioned a rehearing in this case, it seems not improbable, that the painstaking desire of the register to arrive at the very truth may prove of great value towards that end in this case. And occasion may be taken to commend the practice of views and to suggest that both register and receiver may, and perhaps together, in cases of conflict, usefully visit the premises when accessible, and when a present view may justly afford help to resolve the point in dispute. But this ought to be before the argument is heard and after notice to the parties.

The department decision, rendered herein on May 18, 1838, is, therefore, set aside and annulled, and you will direct that a re-hearing be had in the case, after due notice to all parties. After such hearing is had, you will thereupon re-adjudicate the case. The decision of your office originally appealed from is modified ac cordingly.

RAILROAD RIGHT OF WAY-ACT OF MARCH 3, 1875.

DENVER & RIO GRANDE R. R. Co.

The right to appropriate material from the public land, as conferred by the acts of June 8, 1872, and March 3, 1875, and defined by the term "adjacent" should not be held to extend beyond the tier of sections through which the right of way passes, and an additional tier of sections on either side.

The act of March 3, 1875, authorizing railroad companies to use public timber for construction purposes applies to this company and is not inconsistent with the act of June 8, 1872.

A railroad is not authorized to take timber from lands adjacent to one part of its line for the purpose of constructing another part.

The grant of timber for construction purposes is restricted to the construction of the road bed; and depots, station houses, machine shops, etc., are not included in the term "railroad" as used therein.

Secretary Vilas to the Attorney General, January, 10, 1889.

I am in receipt of your letter of April 25, 1888, transmitting a copy of a communication from Henry W. Hobson, of April 21, with an origi nal communication from Edward O. Wolcott, Esq., general counsel for

the Denver and Rio Grande Railroad Company, relative to the right of the road to cut timber from the public lands for the use of said road under the acts of June 8, 1872, (17 Stat., 339) and of March 3, 1875, (18 Stat., 482).

The act of June 8, 1872 granted to said road the right of way over the public domain of one hundred feet on each side of the track, with the right to take from the public lands adjacent thereto stone, timber, earth, water, and other material required for the construction and repair of its railway and telegraph line.

The act of March 3, 1875, is the general law making a similar grant to railroads of right of way upon complying with certain provisions named therein.

The 2d provision of the act of June 8, 1872, was by the act of March 3, 1877 (19 Stat 405, amended so as to read as follows:

Provided, That said company shall complete its railway as far south as Santa Fe within ten years of the passage of this act, and shall complete fifty miles additional south of said point in each year thereafter; and in default thereof the rights and privileges herein granted shall be rendered null and void so far as respects the unfinished portion of said road.

Under the said acts the company makes the following claim:

The Denver and Rio Grande Railway Company claimed, and The Denver and Rio Grande Railroad Company, as its successor, claims, under the act of June 8th, 1872, and under that act and its amendments we conceive our rights to public timber to be as follows:

1. That the Railway Company had the right to take timber for purposes of construction until June 8th, 1882, and that the Railway Company had at all times after the passage of the act and the Railroad Company still has, the right to take timber for repairs of that portion of the railway line constructed prior to June 8th, 1882.

2. That for the purpose of repairs the only limit on this right is that the timber shall be taken from public lands adjacent to the right of way of that portion of the Company's lines constructed prior to June 8th, 1882.

3. That the term "adjacent" pertains only to the relation of the lands to this railway line as a whole, and does not control the particular place of use on the line: e. g. if there is no timber opposite a given point on the line, as “A”, the Company may go to the nearest and most accessible timber land, provided it is adjacent to some part of the line, as "B" and carry the timber on the road from "B" to "A" for use at the latter point.

4. That if the necessary timber is not found on adjacent lands between the termini of the road the Company may go a reasonable distance beyond either terminus to lands adjacent to such terminal points.

5. That the distance from the lines or terminal points to which the Company may go under the term "adjacent" 18 to be controlled by circumstances, and that if available timber cannot be found nearer, that thirty miles would not be an unreasonable limit of the term "adjacent" in the country where this railroad line was built.

The Company claims under the act of March 3rd, 1875, for those portions of its railway lines which have been constructed, since June 8th, 1882, and which it may yet desire to construct, and under this act the Company claims:

6. That it has a right to take timber for purposes of construction from adjacent public lands and that the same rules as to adjacency apply under this act as above claimed under the act of 1572.

7. That the purposes for which timber may be used under both acts of Congress include ties, bridges, depots, station houses, round-houses, water tanks, machine shops, and all other permanent appurtenances necessary as an operating railroad, and so far as the lines were built under the act of 1872, that this right extends to repairs as well as to construction.

Said communication was referred to the Commissioner of the General Land Office, whose report therein is herewith transmitted.

The road not having been completed to a point on the Rio Grande as far south as Santa Fe within the ten years limited by the act, the company can not claim the benefits of the act of 1872 as to any part of the road built after the expiration of that time.

The Commissioner conceded the claim of the company as set forth in the first and second propositions, but denies their claim as set forth in the third, fourth and fifth.

These involve the construction of the word "adjacent" in its application to lands from which timber may be taken for construction and repair of the road.

The decision of Judge Hallett, to which the Commissioner refers, was rendered in a suit brought by the United States against the Denver & Rio Grande Railroad Company to recover the value of timber taken from the public lands - the road claiming the right to said timber under the acts above cited.

In said decision Judge Hallett held, that the word adjacent "means extending laterally some distance from the right of way and probably within ordinary transportation by wagons".

As I understand said decision he denies the right of the road to take timber from lands adjacent to one part of its line of road for the purpose of constructing another part.

The adjective "adjacent," by which word the lateral limits of the area upon which the railroad company is authorized to take material for the construction of its road is defined, is indefinite and uncertain in signification. It is recognized that it must mean something more than "adjoining." Nothing in the term itself necessarily implies that the lines of surveys shall be resorted to to define its extent. There is, however, nothing in this indefiniteness which, it seems to me, can authorize the view that timber or other material can be taken from public land so far away as may be reached by wagon transportation in a single day, or any other given period of time. That appears to be wholly an arbitrary view, and one not in accordance with the general idea which one would derive from the use of this adjective, as applied to lands adjacent to the railroad right-of-way-a narrow line drawn across the country. It seems to me that a much more restricted limitation must have been within the intention of Congress in the use of that term. I find support to this idea in the use of the same word in another connection immediately preceding, in the act of 1872, which provides that the right-of-way shall be granted, "one hundred feet in width on each side of the track," and also, "such public lands adjacent thereto as may be needed for depots, shops, and other buildings for railroad purposes,

and for yard-room and side-tracks, not exceeding twenty acres at any one station." A similar use of the word is also made in the act of 1875. This use of the word "adjacent" indicates a moderate right of appropriation of the public lands, which were conveniently contiguous to the right-of-way, and immediately accessible from it. I do not believe that it was the purpose of Congress, or that this Department ought to decide that a railroad company can range the public lands to secure material for the construction of its road, when it does not happen to exist on those lands which, in the ordinary acceptance of the phrase, would be regarded as "adjacent" to the right-of-way. It is perhaps necessary, for practical construction, to define some limit; and in acknowledgment of that necessity, and with a view to a proper protection of the interests of the government, I am of the opinion that it is as far as sound discretion will warrant executive officers to go until an authoritative decision by the courts, to hold that, under this phrase, material may be taken from the tier of sections through which the right-of way extends, as immediately adjoining the right of-way, and perhaps an additional tier of sections on either side, as within the idea of "adjacency.” In employing this word of flexible siguification, "adjacent," to indicate the territorial limits of this privilege to the railroad company, Congress has thrown upon the Department the necessity of determining a meaning to that word and of laying down a rule thereon for the guidance of the subordinate officers and the companies; and, in view of all the facts and considerations applicable, it is believed the definition and rule given are fair and just, and legitimately to be adopted. I think it wiser and safer to pursue such a rule, subject as it is to review by the courts, than to leave the matter open to the varying notions of different officers or the necessities of the companies.

The company also claim the benefits of the act of March 3, 1875, as to that portion of its line which has been constructed since June 8, 1882, and which it may yet desire to construct. The claim of the company under this act is set forth in the 6th and 7th propositions hereto. fore stated.

In the decision above cited, Judge Hallett held that "the act of March 3, 1875, authorizing railroad companies to use public timber for construction purposes, applies to the Denver and Rio Grande Railroad Company, and is not inconsistent with the act of June 8, 1872, but the term adjacent, as used in said act, was construed by the court adversely to the claim now presented by the company.

The decision of Judge Hallett having been made in a suit brought by the government against this road, which involved the rights of the company under the acts of June 8, 1872, and March 3, 1875, I am dis posed to adhere to the ruling of the court in said case upon all points therein decided, with the limitation above stated as to adjacent lands, and I do not see that any other understanding could be arrived at by a conference between the Department and the railroad officials as suggested by the District Attorney.

As to the claim of the company set forth in the 7th proposition, I concur in the views of the Commissioner, that the intent of this act granting timber for the construction of railroads is restricted to the construction of the road bed, and that depots, station-houses, machine-shops, etc., are not included in the term railroad, as used in said act.

HOMESTEAD ENTRY-RESIDENCE-COMMUTATION.
GOTTLIEB BOSCH.*

Though the final proof, in the matter of residence, may be insufficient to warrant the issuance of patent under section 2291, R. S., it may be accepted as authorizing a purchase under section 2301, if the entryman so elect.

Secretary Vilas to Commissioner Stockslager, May 11, 188S.

I have considered the appeal of Gottlieb Bosch from your office decision of May 29, 1886, wherein you hold for cancellation his homestead entry for the SE. of Sec. 26, T. 134 N., R. 59 W., Fargo, Dakota.

1

The facts are sufficiently stated in your said decision, and I concur in your conclusion that the claimant has not shown such residence as entitles him to the land under section 2291 of the Revised Statutes.

I cannot, however, conclude that the facts shown by the record and before set out necessarily show fraud on the part of claimant. He may have acted in good faith, believing that his acts constituted a compli ance with the law; and the record fails to convince me that he did not do so. I am, therefore, unwilling to cancel his entry on the present record. But I think the proof submitted is, by reason of claimant's apparent good faith and his continuous residence in the latter year, ample to authorize the purchase of the tract by him under section 2301 of the Revised Statutes, if he so elect. Otherwise the proof offered must be rejected, and the case be left to such further proof as the claimant may make if such proof should, however, be submitted within ninety days from notice of this decision.

. Your decision is modified accordingly.

HOMESTEAD ENTRY-RESIDENCE.

ADAM S. HARRIS.

In the absence of any intervening adverse claim, a homestead entryman may receive credit for a period of residence preceding his entry, and while he held the land under the timber culture law.

First Assistant Secretary Muldrow to Commissioner Stockslager, January 11, 1889.

April 17, 1882, Adam S. Harris made timber-culture entry for the NE. 4 of Sec. 8, T. 9 N., R. 20 W., Grand Island, Nebraska. On May "The original entry in this case was made March 24, 1881, and proof submitted March 30, 1886.

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