to determine the time when the grant becomes attached to particular land, which has been declared by the supreme court in respect to other cases of grants of floats. The act fixes this. It declares, in the first section, defining this present grant, that the company has granted to it the right-of-way, "to the extent of one hundred feet on each side of the central line of said road; also the right to take from the public lands adjacent to the line of said road, material, earth, stone, and timber necessary for the construction of said railroad; also ground adjacent to such right-of-way for station-buildings, depots, machine-shops, side-tracks, turn-outs, and water-stations, not to exceed in amount twenty acres for each station, to the extent of one station for each ten miles of its road." As to the roadway, the construction of the road fixes the boundaries of the grant, and fixes it by the exact rule of the statute. As to the grounds for station-buildings, etc., the right is absolute to the quantity named, for one station to each ten miles of the road. (Perhaps the approval of the Department is necessary to its specific definition; but that needs not to be now decided.) This must undoubtedly be the rule when the road is constructed over unsurveyed lands, because then every condition necessary to the vigor of the pres ent grant is complied with. The fact that the railroad company may locate and construct its road upon unsurveyed lands is clearly recog. nized in the fourth section of the act; and the regulations of the Department have been made to apply to such cases, and authorizes such construction.

It seems to me that the fourth section of the act was written for another purpose, and for another case. It relates to the case of a railroad company which desires to secure the present grant, and give to it fixity of location, before its road shall be constructed; and it is designed to provide a similar privilege in respect to rights of way which acts granting lands to aid in the construction of railroads have providednamely, the privilege of giving fixity of location to the subject of the grant before construction of the road. Thus it begins by stating that it relates to the case of "any railroad company desiring to secure the benefit of this act." Evidently, this language is used of a company which contemplates building a road, and it speaks of the filing of a profile of its road, as a thing to precede the construction. The proviso to this section also clearly indicates that the section was designed to relate to cases where the railroad company seeks to secure the definite location of its right-of-way before building; and it indicates a period of five years within which the company, after having secured its right-of-way, may build; but upon failing to do it the right-of-way shall be forfeited. It contemplates, first, the "location" of the line of the road-authorizing it to be done in sections of twenty miles each. This "location" must mean the determination by the corporation, through its stockholders or board of directors, of the projected line upon which it purposes to construct the road. That "location" must precede construc

tion; and it must also precede the filing of a profile, which is only another phrase for a map of definite location-a phrase frequently used in acts granting lands in aid of the construction of railroads. Then it is provided that, if the location be upon surveyed lands of the United States, this profile must be filed with and approved by the Secretary of the Interior, as the center line of the road; and being filed in the office of the register of the land office of the district where the public land is located, it is enacted that "thereafter all such lands, over which such right-of-way shall pass, shall be disposed of subject to such right-of-way." If, however, the railroad company has located its road upon unsurveyed lands, but not constructed it, then, within twelve months after the survey by the United States, the profile of the road must be filed in like manner; and from that time the clause above quoted applies-"land over which such right-of-way shall pass, shall be disposed of subject" to it. It seems to me clear that the purpose of Congress in this 4th section was only to provide means by which railroads could define, or definitely locate, the right-of-way, of two hundred feet in width, with station grounds, etc., desired for the road which was to be thereafter constructed; and that, as in the case of other grants or "floats," the right of the grantee, in its relations to settlers on the public lands attached from the date of filing the map of definite location.

But inasmuch as it is obvious that the railroad company has a perfect right to build upon unsurveyed lands, and that the construction of its road then fixes the exact line, from which the right-of-way is to be measured, in cases where a road has been constructed in fact, through unsurveyed land, its right is as perfect to the right-of-way defined by this statute, by measurement from its center line, as it is possible for it to be. The grant is complete, and defined in fact.

It does not become necessary for a road which has secured the benefits of this act, by taking the steps which give it the attitude of being named in the first section as a grantee, and by building a road through the public lands, whereby the subject of the grant has been defined, to file a map of definite location in order to entitle it to the benefits of the right-of-way.

The fourth section is designed to provide a mode by which fixity of location can be secured to a grantee, in anticipation of that construction by which location is defined in the section making the grant, and which shall have the effect, before the construction of the road, which the terms of the grant limit to "the central line of said road;" which only means-without the fourth section-a constructed road.

This interpretation of the act seems to me to solve the difficulty that has been suggested, and to solve it in accordance with the purpose and intention of Congress. If a road has been constructed through unsurveyed lands, every person who makes entry upon any given subdivision surveyed after the construction of the railroad, does so with

notice of the fact that the railroad owns a right-of-way to the extent of one hundred feet in width on each side of the central line of said road. Any patent granted to a subdivision evolved by the survey, which should include a portion of this grant to the railroad company, must therefore be subject to that grant, because the grant is already perfect and complete. The cases in which notes are to be made on the entries of public lands are those of entries made before the construction of the road, for the purpose of excepting the grant to the railroad company, thus made upon the condition that the road shall be completed within five years, or the grant shall be forfeited.

If it were to be held that a railroad company has a right to build its road on unsurveyed land, and yet, perhaps years subsequently to the date of the completion and operation of the road, and the actual appropria tion of the land (under the first section) for station-buildings, depots, machine shops, side tracks, turn-outs, and water-stations, within the lim ited quantity, that its right to the continued benefit of the ground for right of way, station grounds, etc., must depend upon its filing a profile of its road, after the township plats of survey are deposited in the land office, but before any other claimant can make a timber culture entry, or a homestead entry, or file a pre-emption declaratory statement, or other step under the laws for the acquisition of public lands, it would be simply to deny to the company the benefit of the first section of the act. It would be impossible for the company to comply with the condition of filing a profile as quickly as individual settlers could file entries upon the land. A timber-culture entry might be filed on a quartersection which would embrace the depot-grounds of a company, includ ing its buildings, side tracks, etc., and it would be unreasonable, in my judgment, to suppose that Congress intended in said act that a railroad company, which had constructed its road prior to the initiation of any claim or right under the laws for the disposal of the public lands, should be compelled to purchase its improvements and right of way from the subsequent claimant. But since it appears that said entry was made after the construction of said road over the land in question and before survey, it does not appear to be necessary to make any notation on the entry papers, nor is there any right in the company to insist upon it. Nor does the statute provide for any such action in such a case. But, as the disposition of the land to the timber culture entryman must be in fact subject to the rights of the railroad company, as the nature and extent of those rights depend upon proof of facts not required to be shown on the records of your office, it appears to me a case where a proper administration of the statute authorizes a statement in the patent, when it shall be issued, that the grant is subject to rights acquired by the railroad company under the act of March 3, 1875.

Your decision is modified.

HOMESTEAD ENTRY-PRACTICE.

LEWIS PETERSON.

The local office should not allow a homestead entry to be made for land involved in a prior contest, pending on appeal before the Department.

Secretary Vilas to Commissioner Stockslager, January 23, 1889.

August 29, 1887, Lewis Peterson made application at the land office at Olympia (now Seattle), Washington Territory, to enter under the provisions of the homestead law, Lots 3 and 5, the SE. 4 of the SE. and the NW. of the SE. 4 of Section 32, T. 24 N., R. 1 W., and tendered the fees required by law.

The local officers rejected the application on the same day for the reason that the same conflicts with the cash application of William Wright, under his timber land sworn statement No. 2372, made Decem. ber 30, 1885, and for the further reason that said tracts are in contest between said William Wright claiming said land or part thereof under his above timber land application, and final proof thereunder, and Hans Larson, claiming said land by virtue of his pre-emption declaratory statement No. 10,184, which contest is now pending before the Hon. Secretary of the Interior on appeal.”

August 5, 1886, Wright tendered proof and payment for the land embraced in his sworn statement and Larson filed a protest against the acceptance of the same, and at the date of your decision, the case was still pending. You held that the tracts cannot be entered until the contest shall have been finally disposed of.

After the local officers have rendered a joint report and opinion in a contested case and have forwarded to the Commissioner of the General Land Office, all the papers in the case as required by rules 51 and 52 of practice, Rule 53 provides that "the local officers will thereafter take no further action affecting the disposal of the land in contest until instructed by the Commissioner." The decision appealed from was in conformity with this rule, and it is affirmed. Wade v. Sweeny (6 L. D., 234); Hotaling v. Currier, (5 L. D., 368); Stroud v. De Wolf, (4 L. D., 394).

Herewith are returned the papers in the case.

MINING CLAIM-PRACTICE-PROTESTANT-APPEAL.

BRIGHT ET AL. v. ELKHORN MINING Co.

A protestant against the issuance of mineral patent who stands solely in the relation of amicus curia, and who alleges no interest in the result of the application for patent, is not entitled to the right of appeal.

A mineral claimant cannot ask the Department to say that a protestant, who alleges an adverse interest, is barred by failure to properly adverse within the limited time, unless he establishes the facts which cause such time to begin to run; such a protestant therefore has a right to show that proper action was not taken to bring him within the statutory period of limitation, and to that extent only he is entitled to the right of appeal.

Secretary Vilas to Commissioner Stockslager, January 25, 1889.

This is an application for certiorari filed by A. F. Bright and T. T Nicholson, praying that the record in the above case be certified to the Department for consideration upon their appeal from your decision of July 25, 1888, dismissing their protest.

This case arises upon a protest filed by Bright and Nicholson against the issuance of patent to The Elkhorn Mining Company for mineral entry No. 1099 of the A. M. Holter Lode, Helena, Montana, said protest alleging that:

The location of said claim was illegal, in that the boundaries were not defined by stakes at the corners thereof, and that the claim as surveyed and entered embraced ground lawfully claimed and possessed by them as owners of the Sophia Lode.

You dismissed said protest, but, subsequently, granted a rehearing, upon the ground of newly discovered evidence, and upon the further ground that the application for rehearing alleged that notice of said company's application for patent and the official plat of its claim were not posted upon the premises during the statutory period of publica tion.

Upon said hearing the local officers found that the posting on the claim was duly made, and recommended that the protest be dismissed.

On July 13, 1888, your office affirmed the finding of the local officers, dismissing the protest, and closed the case. Whereupon, the protestants filed an appeal from said decision, which you declined to transmit, upon the ground that:

A protestant who is not a party litigant and appearing merely as amicus curiæ has no right of appeal. I decide therefore that said protestants, Bright and Nicholson, have no right of appeal, and decline to forward the papers.

The question presented by this application is, whether in any case a protestant may be entitled to the right of appeal from the decision of the Commissioner of the General Land Office.

A person protesting against the issuance of patent upon a mineral claim, who stands solely in the relation of amicus curiæ, and who alleges no interest in the result of the application, can not question the judgment of the land office in passing upon said application and protest, and is not entitled to the right of appeal from such decision. And