acter under consideration, acting upon the belief that they were excepted from the railroad grant-a belief not without support found, as I think, in the decisions of this Department. On the other hand, this construction entails no special hardship upon the company, which takes lands within the indemnity limits in lieu of those lost in place.

I reverse your decision so far as it relates to said NW. 4 of the SW. , and award said tract to Talbert; and I affirm your decision awarding to him said lots 1 and 1, for the reasons aforesaid.

BEFORE SELECTION—ACT OF JUNE 22, 1874.

HASTINGS AND DAKOTA RAILROAD COMPANY v. BAILEY.

A relinquishment of a specified tract, properly executed by the grantee, must be filed before, or concurrently with, a selection in lieu thereof under the act of June 22, 1874.

Secretary Teller to Commissioner McFarland, April 25, 1884.

SIR: I have examined the case of the Hastings and Dakota Railroad Company v. Andrew J. Bailey, involving lots 1, 2, 3, and 4 of Sec. 26 north of Minnesota River, T. 121, R. 46, Benson, Minn., on appeal by said company from your adverse decision of March 12, 1883.

It appears from the affidavit of Bailey, made December 19, 1882, and filed in the case, that said lots contain about 172 acres; that he moved thereon with his family in the summer 1878, built a good frame house 20 by 20, with L's, walled up a cellar thereunder, built granaries, stables, and barns, has a curbed well, 50 acres of land under cultivation, has planted five hundred forest and shade trees, and has set out in small fruits about one acre; also, that he has resided continuously on said land, with his family, ever since he moved thereon in 1878; that he has never had the benefit of the homestead law, and that he moved on said land and made the improvements in good faith.

In September, 1879, he applied to make homestead entry of said lots, but his claim was rejected at the local office because said company had applied for said lands under the act of June 22, 1874. Bailey took no appeal from such action of the local office.

Your office took action because of Bailey's affidavit aforesaid, which was received by this Department and duly referred to you. You found that the company selected the lands in question June 19, 1879, in lieu of the S. of the NW. and the E. of the SW. of Sec. 23, T. 113, R. 35, entered as a homestead entry, No. 3,180, August 9, 1866, by Andrew Hunter, to whom final certificate No. 1 was issued at Redwood Falls July 22, 1872. You further found that the land was within the ten-mile limits of the grant for said railroad, which grant became effective March 7, 1867, and that since the Hunter entry was then valid and subsisting, it excepted the lands in that entry from the grant, and there.

fore the company had no claim for indemnity therefor; and accordingly you rejected its claim to the lands in question, and directed that Bailey's application to enter the same should be permitted.

Counsel for the company except to your decision, alleging error in that you hold that the "company was not entitled to select said tracts under act of June 25, 1874."

The ground of the appeal stated in the argument is "that the land in Sec. 23, 113, 35 was absolutely withdrawn for said railroad grant in July, 1866, prior to Hunter's entry thereof in August, 1866." This fact does not appear in your letter nor in the record transmitted, but I find upon examination that such was the case.

It does not appear that said company has ever made any relinquishment of the land in Sec. 23, in place of which the selection is sought. The act of June 22, 1874, provides that in certain cases in the adjustment of railroad grants "the grantees, upon a proper relinquishment of the lands so entered or filed for, shall be entitled to select an equal quantity of other lands in lieu thereof, from any of the public lands not mineral, within the limits of the grant not otherwise appropriated at the date of selection, to which they shall receive title the same as though originally granted."

The Land Department, under said act, cannot approve of a selection except "upon a proper relinquishment of the lands" in lieu of which the selection is made. This is clearly provided for in the act, and it means the execution by competent authority of some proper written release of such lands-such a release as may be made a matter of record. While it is true that the approved selection (or at least the title which the act provides for making to the company of the lieu land) would forever estop the company from asserting title to the land in place of which the selection was made, there are, however, many reasons for requiring the execution and delivery of the "proper relinquishment" clearly provided for in the act.

The company asks that a selection of lieu land made without a relinquishment of the land claimed to be granted should be maintained against an application to enter. The making of the relinquishment under the act under consideration is a condition precedent to a recog nition of the selection by your office; at least, the making of such relinquishment should be an act concurrent with that which you are asked to perform. But the Department is now requested to act in advance of a relinquishment, thus reversing the evident intention of the act.

For these reasons the selection should be rejected, and Bailey's application to enter be allowed.

The right of the company to make a selection is asserted because the Hunter entry was allowed in the face of an existing withdrawal. That withdrawal was made before the grant was conferred upon the company by the act of the legislature of Minnesota; and when, by that act,

the grant to the company became effective, the Hunter entry stood against the tract.

Upon this state of the case I do not undertake now to decide whether the company would have the right to make any selection for the tract so included in Hunter's entry upon the tender of a proper relinquishment of such tract.

Your decision, for the reasons before stated, is affirmed.

BEFORE SELECTION.

DUBUQUE AND SIOUX CITY RAILROAD COMPANY.

Act of June 22, 1874. The land relinquished by the company is within the indemnity limits of its grant, but has not been selected. Held:

That as its right in said limits does not attach until selection, it had no claim to relinquish, and its selection in lieu thereof was properly rejected.

Acting Secretary Joslyn to Commissioner McFarland, April 28, 1884.

SIR: I have considered the case presented by the appeal of the Du buque and Sioux City Railroad Company from your decision of May 28, 1883, rejecting such company's selection of the W. of the SW. † of Sec. 12, T. 90, R. 47, Des Moines, Iowa.

The selection described was made as part satisfaction for the SW. of Sec. 33, T. 88, R. 31 W., relinquished under the act of June 22, 1874 (18 Stat., 194). The tract relinquished is within the indemnity limits of the grant made to the State of Iowa for the benefit of the company by the act of May 15, 1856 (11 Stat., 9), and was withdrawn for the purposes of the grant in 1856.

You state that the records show that said relinquished tract was located March 1, 1869, with agricultural college scrip, 1914, Ohio, register and receiver's No. 122, by A. M. Dawley, and that patent issued on said location September 1, 1869. This tract was not selected by the company as lieu land.

The act of June 22, 1874, provides

That in the adjustment of all railroad land grants,

if any

of the lands granted be found in the possession of an actual settler whose entry of filing has been allowed under the pre-emption or homestead laws of the United States, subsequent to the time at which, by the decision of the Land Office, the right of said road was declared to have attached to such lands, the grantees, upon a proper relinquishment of the lands so entered or filed for, shall be entitled to select an equal quantity of other lands in lieu thereof from any of the public lands, not mineral, and within the limits of the grant, not otherwise appropriated at the date of selection, to which they shall receive title the same as though originally granted.

The right of the company to specific tracts within the indemnity limits did not attach prior to selection (Ryan v. Railroad Company, 99

U. S., 382). Hence, under the act of June 22, 1874, the company had no claim to relinquish as against said tract, and you therefore properly rejected the selection made in lieu thereof.

Your decision is affirmed.

XII.-RIGHT OF WAY.

TRANSFER OF RIGHT-FILING MAPS.

NORTHERN PACIFIC, FERGUS AND BLACK HILLS RAILROAD COM. PANY.

Where a railroad company, which has filed maps and secured a right of way through the public lands, has transferred its rights to another company, no approval of the maps of the same line filed by the latter company is necessary.

Secretary Teller to Commissioner McFarland, December 18, 1883.

SIR: On the 17th of September last you transmitted for my examination and action a map, showing the line of route of the Northern Pacific, Fergus and Black Hills Railroad Company's road from a point in the center of the channel of the Bois des Sioux River, on the boundary line between Minnesota and Dakota, in Sec. 9, T. 132 N., R. 47 W., to a point in Sec. 11, T. 132 N., R. 57 W., Dakota, a distance of 39.25 miles. The map was submitted by the company for approval under the provisions of the right-of-way act of March 3, 1875 (18 Stat., 482). In your letter reporting upon the matter you stated that the line of road, as presented by the map, does not pass through any Government reservation of any kind; but you found that for a distance of about 35 miles the line is upon the previously located line of the Saint Paul, Minneapolis and Manitoba Railway Company, as represented upon a map which was approved by this Department December 23, 1881, under the act of 1875, and you express the opinion that, in view of the identity of the two lines and of the practice in similar cases, the map under consideration should not be approved.

Upon an examination of your report of September 17, I, on the 18th of the same month, directed you to notify the Saint Paul, Minneapolis and Manitoba Company of the conflict in routes, and to request information whether any objections existed on the part of said company to the approval of the map under consideration.

I am now in receipt of your letter of October 11, in which you state that, as a result of inquiry made as directed, you have a letter from R. B. Galusha, solicitor for the Saint Paul, Minneapolis and Manitoba Railway Company, setting forth that the line from Wahpeton, Dak., west, partly constructed by the company last mentioned, has been transferred to the Northern Pacific, Fergus and Black Hills Railroad, and consequently no objections are raised to the map in question.

You now recommend the approval of said map. In the light of the

above information, I see no necessity for the action asked by the company and recommended by you. The transfer of the line of road, as mentioned, naturally and necessarily carried with it whatever right of way had attached to said line. As already stated, it had the right of way, duly approved under the act of 1875. This, therefore, passed by the transfer, and nothing would be added by the approval of the map presented by the Northern Pacific, Fergus and Black Hills Railroad Company.

XIII.-SWAMP LANDS.

DRY BED OF LAKE.

CEDAR RAPIDS AND MISSOURI RIVER RAILROAD COMPANY v. RAGAN

ET AL.

On the authority of State of Indiana v. Milk (11 Bissell, 197), the bed of a lake, at date of swamp grant unsurveyed and covered by non-navigable water, which has since receded, is awarded to the State as swamp land, notwithstanding no selection thereof has been made by the State under the swamp act.

Secretary Teller to Commissioner McFarland, May 16, 1884.

SIR: I have considered the case of The Cedar Rapids and Missouri River Railroad Company v. William Ragan et al., involving title to certain lots lying in Secs. 28, 29, 32, and 33, T. 83 N., R. 5 E., Iowa, on appeal from your decision admitting the applications of Ragan and Tiedemann to enter, and rejecting the claims of said railroad company and of the county of Clinton as grantee of said State.

These lots constitute the bed of what was known as "Goose Lake," in said Clinton County, as shown by survey of the township made in 1837.

At that time the parts of the sections above named lying adjacent to said lake were surveyed, the margin of the lake being meandered, and the lands and lake lying within the margin excluded from the survey.

In 1875, the waters having receded, an application was made for a survey of the land forming such bed. Survey was made, and the plat approved by your office March 21, 1876.

This land, as subdivided, forms lots 4 and 5 in Sec. 28, lots 5, 6, and 7 in Sec. 29, lot 3 in Sec. 32, and lot 3 in Sec. 33, and containing in the aggregate 301.55 acres.

On the 30th day of March, 1876, the said railroad company, by its agent, William Ragan, made application to select all of said lands for said company. On the same day, but after making such application for the company, and after taking an appeal because of the rejection of such application, said William Ragan applied to enter as a homestead for himself lots 4 and 5, Sec. 28, and lot 7, Sec. 29, containing 154.60 He was at this time a duly appointed agent of said company, and as such had authority to make such selection.

acres.