the granted sections. These are all the limitations or conditions provided for by the act of 1864, subject to which the right to select is granted. Interpretation will not warrant the adding of another limitation that the lieu lands must be selected in the same State or Territory in which the lands were lost. To annex such an additional limitation to the words of the grant would be legislation and not construction. In the resolution of the 31st of May, 1870, (16 U. S. Stats., 379), in which Congress intended to limit the selection of the lieu lands to the same State or Territory in which the lands were lost, the language used to so limit the grant is:

Then said company shall be entitled, under the directions of the Secretary of the Interior, to receive so many sections of land belonging to the United States, and designated by odd numbers, in such State or Territory, within ten miles on each side of said road beyond the limits prescribed in said charter.

The language "in such State or Territory," or some equivalent language, would doubtless have been found in the original act of 1864, had it been the intent of Congress to limit the selection to the State or Territory in which the lands were lost. In the absence of any such words, I do not feel authorized to interpolate them as an additional limitation to the law as enacted. I therefore answer your second inquiry also in the affirmative.

FINAL PROOF PROCEEDINGS-TRANSFEREE.

H. P. WYBRANT ET AL.

Where an irregularity in the submission of proof is not satisfactorily explained, and it appears that the entryman has disposed of the land, the transferee may be permitted, after republication, to submit supplementary proof showing the entryman's compliance with law during the period covered by his final proof, and the date and circumstances of the transfer.

Secretary Vilas to Commissioner Stockslager, January 5, 1889.

I have considered the appeal of H. P. Wybrant, transferee, from the decision of your office, dated April 1, 1887, suspending pre-emption cash entry, No. 7230, of the SE. 4 of Sec. 28, T. 152 N., R. 60 W., made by Jennie C. R. Dowlin, on May 7, 1883, at the Grand Forks land office, in the Territory of Dakota, and requiring her to make new publication and proof showing full compliance with the requirements of the law.

The record shows that Miss Dowling filed pre-emption declaratory statement, No. 4610 for said tract February 5, 1883, alleging settlement thereon June 5, 1882. On March 21, 1883, the register gave notice of claimant's intention to make final proof before John G. Hamilton, notary public, at the house of Edith Menefee, on Sec. 30, T. 153, R. 59, on May 1. The final proof was made before the officer designated on May 2, 1883, and in accordance with the rules then in force, except that the testimony was taken on May 2d instead of the day previous, as advertised.

The testimony taken shows that claimant, a single woman, was duly qualified; that she first settled on said land in June, 1882, and estab lished residence on said tract June 11, 1882; that her improvements consist of a house, a well, five acres of breaking, all worth $200, and that her residence has been continuous since June 12, 1882, excepting a period of six or seven weeks during the severe winter weather, when she went on a visit to Grand Forks. The final pre-emption affidavit was made before the receiver on May 7, 1883. On January 8, 1885, the local officers referring to your office letter of December 15, 1884, suspending said entry (with others) stated that your office in suspending said entry failed to state whether any explanation was given why said. testimony was not taken on the day advertised; that they have never allowed a final entry where the testimony was not taken on the day advertised, unless a satisfactory reason was assigned for the failure to take the testimony as advertised, and a satisfactory reason must have been given in that case.

The local officers further state that it is frequently the case that owing to violent storms, bad roads, or absence of witnesses, it is impossible for the settler to appear on the day advertised, but when the law has been complied with as to the period of publication, the local officers have allowed the entries.

On May 21, 1886, the local officers transmitted the affidavit of one John G. Hamilton, who swears that the claimant advertised to make her final proof on May 1, 1883, that on said day she left home and started for Grand Forks by rail, that the train was due at Grand Forks at 3.30 p. m., but it did not arrive until a few minutes before 4 p. m.; that the depot was one mile from the land office; that claimant did not reach the land office until after 4 p. m., when the office was closed for the day; that on the morning of the 2d of May, final proof was made; that the affiant believes that the final proof was not made on the first day of May, solely for the reasons stated; that he went with the claimant to the United States Land Office on the evening of the first, to offer proof between the hours of four and five p. m., and found the register and receiver absent and the office closed.

If there had been no further defect than that mentioned in the decision of your office, namely, the defect in notice and insufficiency of answer as to residence and character of house, and an explanation had been made to the local officers, and the same appeared with the entry papers, I should have no hesitancy in directing that the entry be referred to the Board of Equitable Adjudication for its consideration.

The failure to insert the year in the body of the notice was the omis sion of the register, and besides, no one was misled by it. The final proof, in my judgment, shows compliance with the requirements of the pre-emption law as to inhabitancy and improvement. But the explana tion of said Hamilton, who swears that he was the attorney of Miss Dowlin when she made her final proof, is not satisfactory. He is pre

sumably the John G. Hamilton before whom the testimony was to have been taken as advertised on May 1, and before whom the proof was taken on May 2, 1883. It is not obvious why the claimant should go to the Land Office on the night of May 1, in company with said Hamilton as he swears, when her final proof was to be made at the house of Edith Menefee, as advertised on May 1, 1883.

Besides it is not shown when the transfer of the land covered by said entry was made, or under what circumstances the sale took place. The appellant appears as transferee and the letter of the register to the claimant was returned to the local office "unclaimed."

I am of the opinion, however, that the transferce should be allowed to make new publication of notice, and furnish supplementary proof showing, so far as he may be able, that said pre emptor fully complied with the requiremants of the law during the time covered by her final proof, also the date of the sale of said land to the transferee and all the circumstances tending to show the good faith of the parties in interest. The local officers should transmit said supplementary proof together with their opinion thereon, and upon receipt of the same, your office will readjudicate the case.

The decision of your office is modified accordingly.

TIMBER CULTURE ENTRY-PRELIMINARY AFFIDAVIT.

The preliminary affidavit required of the timber culture entryman is statutory, and the Department has no authority to add thereto.

Secretary Vilas to Commissioner Stockslager, January 5, 1889.

In the timber culture circular approved July 12, 1887 (6 L. D., 280) the preliminary affidavit therein required contains a phrase which does not appear in the form prescribed by the statute. The words referred to are as follows:

That I have made personal examination of said land and from my personal knowledge of the same state.

While it is true that the statutory affidavit can not be made in good faith except on knowledge derived from a personal examination of the land, yet as the statute (20 Stat., 113) has prescribed the exact words of the oath required of the applicant, the Department has no authority to add thereto.

The said phrase should therefore be stricken out of the said affidavit, A foot-note, however, may be properly appended to the form hereafter used, calling attention to the fact that the said affidavit can only rest upon a personal knowledge of the land.

The form prescribed in said circular also requires the applicant to include in said affidavit a statement as to his post office address. This is in addition to the statutory oath and should, for the reasons given

above, be discontinued. The applicant may be properly required to state his post office address without including such statement in the preliminary affidavit.

LROAD GRANT-UNSURVEYED LAND-SETTLEMENT RIGHT.

ST. PAUL M. & M. RY. Co., ET AL. v. PEDERSON.

A settlement right existing at the date of indemnity withdrawal, serves to except the land covered thereby from the effect of said withdrawal.

A pre-emption filing based on settlement prior to survey, and made when the Department held that an indemnity withdrawal did not take effect upon unsurveyed land, will be held valid as against such a withdrawal.

Secretary Vilas to Commissioner Stockslager, January 5, 1889.

I have considered the several appeals of the Saint Paul, Minneapolis & Manitoba Railway Company, and the Hastings & Dakota Railroad Company, from the decision of your office, dated February 2, 1884, hold. ing for approval homestead entry, of Lots 2 and 3, Sec. 31, T. 122, R. 43, and Lots 3 and 4, Sec. 36, T. 122, R. 44, Benson land district, in the State of Minnesota.

The record shows that the land in the odd numbered section is within the twenty mile or indemnity limits of the withdrawal of June 2, 1869, for the benefit of the St. Paul and Pacific (now the Saint Paul, Minneapolis and Manitoba Railway) Company, under the grant by act of Congress approved March 3, 1865 (13 Stat., 526). It is also within the limits of the withdrawal for indemnity purposes for the benefit of the Hastings and Dakota Railroad Company, under the grant by act of Congress approved July 4, 1866 (14 Stat., 87), notice of which was received at the local land office on May 11, 1868.

It further appears that Ingebright Pederson filed his pre-emption declaratory statement No. 5334 for said lands on June 7, 1872, alleging settlement on March 4, 1869, and on the same day transmuted said filing to homestead entry, No. 5312. On May 22, 1878, Elizabeth Pederson, widow of said Ingebright Pederson, deceased, made final proof showing that said Pederson was her husband in his lifetime; that he died on December 31, 1877; that he settled upon and occupied said land prior to June 7, 1872; that since the death of her said husband, she has continued to reside upon and cultivate said land up to the time of making said proof. The local land office accepted the proof and issued final certificate, No. 3763 thereon.

A hearing was ordered and had to determine the date of actual settlement on said land. From the evidence submitted, the register and receiver found that the subdivisional survey of said land was made in 1870, and the township plat was filed in the local office April 20, 1872, upon which is inscribed the house of E. Pederson on lot 4 of Sec. 36

122-44, and that said Pederson settled and established his residence on the land covered by his said entry on the 4th day of March, 1859. The record fails to show that any appeal was taken by the companies from the findings of the local office, but your office on February 2, 1884, considered the testimony taken at said hearing, concurred in the findings of the register and receiver, and held that the Hastings and Dakota Railroad have no standing in this case, the St. Paul and Pacific, now St. Paul, Minneapolis and Manitoba Railway Company, having the prior graut, and as the tracts were settled upon and improved before the date on which the withdrawal for said last named company became effective, viz: June 2, 1869, the same were excepted from said withdrawal," and your office held said entry for approval for patent, "subject to appeal by said companies."

The St. Paul, Minneapolis and Manitoba Railway Company insists that said decision is erroneous, (1) In holding that the withdrawal for indemnity purposes did not become effective until June 2, 1869; (2) In holding that said land was settled upon by Pederson prior to the withdrawal; and (3) In holding that the land in question was excepted from said withdrawal.

The Hastings and Dakota Railway Company contends that, as the withdrawal for its benefit was prior to that for the St. Paul, Minneap olis and Manitoba Railway Company, it was error to hold that the Hastings and Dakota Company had no standing in the case; that the St. Paul, Minneapolis and Manitoba Railway Company could acquire no right to the land until selection thereof, as the tract was within the indemnity limits of its grant; citing Railroad Company v. Ryan, 99 U. S., 382, and Blodgett v. California and Oregon Railroad Company (6 C. I. O., 37).

Counsel for the St. Paul, Minneapolis and Manitoba Railway Company also state that, at the time of making final proof the claimant was not the widow of the deceased entryman, but had married Rasmus Pederson. This allegation is not sustained by the record, for that shows that the marriage did not take place until 1881, while the final proof was made in 1878.

It is quite clear that at the date when the order of withdrawal for indemnity purposes for the St. Paul, Minneapolis and Manitoba Railway Company was received at the local office, the land was settled upon and claimed by said Ingebright Pederson. The land had not then been surveyed, but after the filing of the township plat of survey the preemptor duly filed for the land, and transmuted his filing to a homestead entry. At the date of said filing, it was the ruling of the Department that the withdrawal for indemnity purposes did not take effect upon unsurveyed land, for the reason that until survey the settler could not tell whether he was upon an even or odd numbered section. (Vol. 1, Land Grant Railroads, 211) This ruling was subsequently changed, in accordance with the views of the Hon. Attorney General in his opin