In his application for review, dated August 4, 1885, claimant alleges that since his said settlement he has continued to reside on said preemption claim, and has expended large sums of money for the improvement of the same, and asks in case of an adverse decision, that he be allowed to make a new pre-emption filing, dating his settlement from the date of the sale of his homestead, and that the money already paid be applied to the payment for said tract of land under the new entry. To grant this request is beyond the power of the Department. Reed must be charged with a knowledge of the law, and cannot be heard to plead ignorance of it. His attempt to acquire title to the tract in question was illegal throughout. In that attempt he has exhausted his preemption right. To allow him now to file again would in my opinion be a violation of law, and would allow him to take advantage of his own wrong.

Said decision is accordingly affirmed.

DESERT LAND ENTRY-DECLARATORY STATEMENT.

E. J. MEECHAM.

Under the desert land act but one declaration of intention to make entry is allowed. Acting Secretary Muldrow to Commissioner Sparks, February 10, 1887.

I am in receipt of your office letter of May 20, 1885, transmitting the application of counsel for E. J. Meecham, asking for a review and reconsideration of Mr. Secretary Teller's decision of January 8, 1885, rejecting the application of E. J. Meecham to amend his desert land entry covering the E. of the SW. of Sec. 4, T. 12, R. 13, Salt Lake district,

Utah.

Said entry was made February 13, 1883. A few months later the homestead entry of another settler, on a tract adjoining Meecham's desert entry, was canceled, whereupon Meecham applied to amend his said desert entry so as to cover the tract thus released from homestead entry. The application alleges no error of law in my predecessor's decision, but pleads equity in Meecham's behalf, pointing out that if he were allowed to enter the tract as prayed for, his desert land entry would aggregate only one-half what the law authorizes. It appears that Meecham made or purchased the improvements on the tract he applies to enter, after its abandonment as a homestead, but prior to the cancellation of the homestead entry; and as no other claimant's rights are involved, and only the government is concerned, and as the refusal of his request will inflict considerable loss upon him with no benefit whatever to the government (which will receive from no other entryman any more than Meecham offers to pay for the tract), he urges that the matter be referred to the Board of Equitable Adjudication.

It may be conceded that in this particular case no harm would result to the government, and the applicant might be saved from hardship. Nevertheless, the rule of your office permitting but one declaration of intention to make entry under the desert land act, is one the advantages of which are so obvious, while the disadvantages inevitably resulting from its annulment would be so numerous and serious, that I do not think the Department would be justified in making an exception in favor of the applicant in this case. I therefore reaffirm said decision.

PRIVATE CLAIM-ACT OF JUNE 14, 1830.

SOUTHERN PAC. R. R. Co. v. BURLINGAME.

The date of a survey is determined by the date of its approval.

The publication and approval of a survey under the act of June 14, 1860, in the absence of an application to have it returned into court, has the same effect in law as the issue of patent.

The final determination of such survey is in the nature of a proceeding in rem and therefore conclusive as against claimants who fail to protect their interests.

A ruling of the Department as to the status of a tract of land, on the application of a pre-emptor, will not preclude the subsequent consideration of the same question on the application of the same person under another law.

A claim cannot be held as sub judice if before a tribunal or officer that has no authority or jurisdiction to adjudge the matter involved.

Acting Secretary Muldrow to Commissioner Sparks, February 14, 1887.

This case involves the NW. of SE.Sec. 17, T. 3 S., R. 13 W., S. B. M., Los Angeles, California, and comes here on appeal by the Southern Pacific Railroad Company from the decision of your predecessor, rendered September 19, 1884, denying its right to the tract specified.

This land is within the primary limits of the grant to the appellant to aid in the construction of its road under the acts of Congress of July 27, 1866 (14 Stat., 294–299), and of March 3, 1871 (16 Stat., 573). The map of designated route was accepted by the Secretary of the Interior and filed in the General Land Office April 3, 1871, whereby the grant attached to all lands subject to it under the said several acts; and the withdrawal was made and became effective at the district land office on the 10th of the following May.

By departmental decision rendered June 26, 1880, in the case of Wm. Burlingame v. Southern Pacific Railroad Company and the State of California, the land in question was held to have been excepted from the appellant's grant by reason of its having been embraced within the claimed limits of the "Tajauta Rancho," the true limits of which were not determined until February 21, 1872, and Burlingame's pre-emption filing for this with other lands was allowed to go to record. He did not, however, avail himself of his privilege under the pre-emption law, but abandoned it. Again, in the case of Garcia v. Southern Pacific

Railroad Company and State of California, this Department, on April 21, 1884, came to this same conclusion with reference to the status of this tract in controversy.

On the 1st of May, 1884, said Burlingame made timber culture application for this land; but it was rejected by the local office for the reason that said land was within the limits of the withdrawal for the appellant's road. Burlingame thereupon appealed, alleging as grounds therefor the fact that the Department had, in the two separate cases heretofore mentioned, held the land to be excepted from the appellant's grant. In the mean time, to wit, May 20, 1884, the company made selection of this land. The decision appealed from rejected this selection and allowed the said timber culture application of Burlingame subject to the right of appeal here.

The appellant's allegation of error on the part of your predecessor in this case is that "the land in question never was within the claimed limits of the 'Tajauta Rancho'-certainly not after the publication and approval of the Hancock survey of 1860 pursuant to the provisions of the act of June 14, 1860 (12 Stat., 33)."

It is insisted with considerable energy that the case is res adjudicata: that the allowance of Burlingame's filing for this land June 26, 1880, was an award the character of which can not now be inquired into. In other words, that the award against the company must stand. This contention, I think, is untenable under the ruling in the following cases: Starkweather v. Atchison, Topeka & Santa Fe R. R. Co. (6 C. L. O., 19) White v. Hastings and Dakota Ry. Co. (id., 54); Griffin v. Central Pacific R. R. Co. (5 L. D., 12); and Charles W. Filkins (id., 49) In the "White" case (supra) the land in controversy had been awarded to the railway company under the rulings then in force; but subsequently under a changed and corrected ruling said award was ascertained to have been erroneous, and an application was made by White to enter the land under the homestead law. In passing upon the case the Secretary said:

"Had title been transferred [by the award] there could be no doubt that the question of the status of the land, so far as this Department is concerned, would be settled. . . . I think it will not be seriously asserted that it would be the duty of the Department to transfer the title of the land to the company, if, under a correct construction of the law, said grantee had no valid claim to the same, simply because, at some former date, in a case other than the one presented to you an award had been made to said claimant."

So also in the case under consideration. Had a patent been issued to Burlingame, this Department would have been without jurisdiction to consider the case further. But as already stated he abandoned his preemption filing, and now makes a new application under a different law. This new application is an entirely independent transaction, and has no connection whatever with the former case of Burlingame against this company. The four essential elements of res adjudicata do not exist in

this case. The question, and only question, here is simply this: Did the tract specified pass to the railroad company under its grant? If it did, the Department should say so; and if it did not, it should likewise say so. For if title to the land in controversy passed to the railroad com. pany under its grant, the issuance of patent for the same to an individual under the timber culture law would be a vain and futile act on the part of the United States, and such patent would be declared void by the courts. Morton v. Nebraska (21 Wall., 660).

Now, in arriving at a correct conclusion as to the status of the particular tract of land here in controversy, the facts and circumstances connected with the "Tajauta Rancho" and the several surveys thereof must be carefully considered. They are substantially as follows: The Tajauta grant, a Mexican grant of one league of land within larger exterior limits, having been finally confirmed under the act of 1851, the lines of a survey of the rancho, as confirmed, were run by Deputy Surveyor Hancock, in December, 1858. This survey was approved by the surveyor general September 17, 1860, after the passage of the said act of June 14, 1860, and it is therefore governed by that act. For it has been uniformly held that the date of the approval shall be regarded as the date of the survey. Rancho San Barnabe (1 C. L. L., 547); Rancho Tajauta (id., 548); Rancho Arroyo Del Rodeo (1 L. D., 229); Rancho Cuyama No. 1 (2 C. L. L., 1205); Southern Pacific R. R. Co. v. Garcia (64 Cal., 515); and Southern Pacific R. R. Co. v. Dull (10 Saw., 506). This ruling is based upon the principle that lands are not surveyed until the survey is ap proved and becomes of record in the land office. State of California v. Townsend et al. (2 C. L. L., 1117, citing Barnard's Heirs v. Ashley's Heirs, 12 How., 43); Finney v. Berger (50 Cal., 248); and Medley v. Robertson (55 id., 396, and cited cases).

The act provides:

"That whenever the survey or general of California shall in compliance with the thirteenth section of an act entitled 'An act to ascertain and settle (the) private land claims in the State of California,' approved March 3, 1851, have caused any private land claim to be surveyed, and a plat to be made thereof, he shall give notice that the same has been done, and the survey and plat approved by him, by a publication. once a week for four weeks in two newspapers, one published in Los Angeles, and one of which the place of publication is nearest the land, if the land is situated in the southern district of California; and until the expiration of such time, the survey and plat shall be retained in his office subject to inspection."

....

It further provides that the district court of that district may, upon the application of any party interested, make an order requiring such survey to be returned into said court for examination and adjudica tion, and if in its opinion the location and survey are erroneous, it may set it aside and annul the same, or correct and modify it. But if "after publication as aforesaid, no application shall be made to the said court for the said order, or when said order has been refused, or 2278 DEC

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when an order shall have been obtained as aforesaid, and when the district court by its decrees shall have finally approved said survey and location, or shall have reformed or modified the same, and determined the true location of the claim, it shall be the duty of the surveyor general to transmit without delay the plat or survey of the said survey to the general land office, and the patent for the land as surveyed shall forthwith be issued therefor, and no appeal shall be allowed from the order or decree as aforesaid of the said district court, unless applied for within six months from the date of the decree of the said district court, but not afterwards; and the said plat and survey, so finally determined by publication, order, or decree, as the case may be, shall have the same effect and validity in law as if a patent for the land so surveyed had been issued by the United States."

The notice of this Hancock survey, and the filing of the approved plat was published in all respects as required by the provisions of the act just quoted, and the survey and plats were retained for inspection in the office of the surveyor general for the term prescribed by the act. No application was made to order it into court, in pursuance of the provisions of the act, and no such order was made. The survey thereby became final under the act in the latter part of September, 1860, after which it was transmitted by the surveyor general to the Commissioner of the General Land Office.

Some time thereafter, just prior to February, 1868, an application was made to the surveyor-general by the confirmee of the grant to have the Hancock survey, already become final, set aside, and a new one made, which application was referred to the Commissioner of the General Land Office, for his instructions. He directed the surveyor-general to make an examination of the case, and if the matter was found to be within the jurisdiction of the surveying department, to have a new survey made. Thereupon, by the directions of the surveyor-general, deputy surveyor-general George Hansen, in February, 1868, made a new survey and forwarded it to the General Land Office; but this latter survey was finally rejected by the Secretary of the Interior, February 21, 1872, as void, on the ground that the surveyor-general never had any jurisdiction to make it, because the Hancock survey of 1858 had be come final in 1860, under that section of the said act above quoted, which provides "that the said plat and survey, so finally determined by publication, order, or decree, as the case may be, shall have the same effect and validity in law, as if a patent for the land so surveyed had been issued by the United States."

The Hancock survey did not include the tract in controversy, but it was embraced within the exterior boundaries of the "Tajauta Rancho," as claimed in the petition for confirmation, and the confirmee continued to claim the land as being within the Mexican grant at least until the final rejection of the Hansen survey by the Secretary of the Interior, as aforesaid.