concerned, the precise question involved had become "both stare decisis and res adjudicata."

It will be observed that while your office, on January 15, 1874, submitted to this Department a report relative to the rights of the Grand Rapids and Indiana Railroad and of the Jackson, Lansing and Saginaw Railroad, in which the opinion was expressed that the right of the former company "vested on the 17th of November, 1857, to the odd sections within fifteen miles, under act of June 3, 1856, if the whole should be found necessary to satisfy the grant of six sections in width, and that the other company under the same act are entitled to the odd sections within the fifteen miles limits, outside the limits of the Grand Rapids and Indiana, the latter company having the prior location," also that, looking at the evident understanding of the government at that time that it needed no final order of the President to revoke the conditional withdrawal for Indian purposes, the odd sections of right belonged to the grant.

Instead of concurring in all the views expressed in said report, this Department declined to express any opinion as to the rights of the railroads to lands in range four. It is true that subsequently your office submitted to this Department for approval a list of lands falling within the six mile limits of the first named railroad, which was approved on April 25, 1874, as above stated, but it does not appear that any formal action has been taken upon the list at bar, certainly none by this Department. But if it be conceded that your office had no jurisdiction to hold said list for cancellation, surely it can not be contended that this Department has no authority to determine the right of said company to the lands embraced in said list, and if it shall not appear that said lands were granted to the State for the benefit of said company, it will be the duty of the Secretary to refuse to approve said list, and in so doing he will be "exercising that just supervision which the law vests in him over all proceedings instituted to acquire portions of the public lands.” Lee v. Johnson (116 U. S., 48).

It will hardly be necessary to discuss the question whether lands in a state of reservation at the date of said grant are by the terms thereof excepted from its operation, if they are free from embarrassment at the date of the definite location of the road, for in the case at bar it is evident that the lands in question were withdrawn by order of the President prior to the date of said grant, and was still in force at the date of the definite location of the road. The even sections within the granted limits were not restored until 1860.

It is no answer to say that the object for which the withdrawal had been made had been accomplished and therefore the proclamation of said treaty of its own force worked a revocation of said withdrawal. It does not do so in terms, and the rights of railroad companies under their grants can not be enlarged by intendment. It is, however, contended by the company that, if it is not entitled to select these lands "in place," then it

should be allowed to select them as indemnity. But this contention can not be maintained, for this Department in the case of the St. Paul and Duluth Railroad Company (4 L. D., 407), upon the authority of the case of L., L. & G. Ry. Company v. United States (92 U. S., 733), and the case of Winona and St. Peter R. R. Company v. Barney (113 U. S. 618), held that "if the lands are excepted out of the grant once, they were so excepted for all purposes."

For the reasons lierein stated, the conclusion of your office, holding said list for cancellation, must be affirmed.

PRACTICE-SECOND CONTEST-APPEAL.

HOODE v. SANDO ET AL.

The right to proceed with a second contest exists only on the final disposition of the prior pending contest.

Acting Secretarg Muldrow to Commissioner Sparks, February 26, 1887.

This record presents the appeal of Lars P. Hoode from the decision of your office, dated March 28, 1885, dismissing his contest against timber culture entry No. 1908 of the NW. of Sec. 28, T. 116, R. 55, made on April 7, 1879, at the Yankton land office, in the Territory of Dakota, and directing the local land officers to allow Ole L. Christiansen to proceed with his contest against said entry.

It appears that said Christiansen filed his affidavit of contest against said entry on February 19, 1883, alleging failure to comply with the requirements of the timber culture law, which application was rejected by the local land officers, because the section in which said tract was situated was not stated in said contest affidavit. The affidavit was withdrawn, and again filed on March 10, 1883, and again rejected because of Hoode's prior contest, dated February 23, 1883. On June 19, 1882, said Hoode filed his affidavit of contest against said entry, notice issued same day, hearing was had on August 8th, same year, and upon the testimony submitted the local land officers recommended that said entry be canceled. On August 14, 1883, your office dismissed Hoode's said contest, because he had failed to file an application to enter said tract in accordance with the rule in the Bundy case (1 L. D., 179). No appeal was taken from said decision. On April 10, 1883, Christiansen appealed from the rejection of both contest affidavits, which appeal was transmitted to your office on January 24, 1884. It is alleged in said appeal that the omission to insert the section in the contest affidavit was a clerical error, that the section was stated in the application to enter which accompanied said contest affidavit, that the error was not made known until March 10, 1883, when it was corrected and the paper refiled, and again rejected, as above stated.

It is also shown that, on October 24, 1883, said Hoode filed another contest affidavit against said entry, accompanied by an application to enter said tract under the timber culture law, notice issued same day, fixing December 5, 1883, for the hearing of said case. From the testimony submitted the local land officers found that the claimant in his lifetime and his legal representatives, since his death, have not complied with the requirements of said act. On October 24, 1884, the local land officers transmitted to your office the papers in Hoode's contest. On November 25, 1884, the local land officers transmitted to your office the affidavit of contest against said entry and application to enter said tract made on September 6, 1884, by John S. Sigler. Accompanying said application is the affidavit of said Sigler, alleging that the contest of said Hoode was speculative, and not made for his own interest, but for the benefit of one George Osler, his son-in-law. Sigler asked that a hearing be ordered and that Hoode should be directed to show cause why his contest should not be dismissed.

On March 28, 1885, your office considered the rights of the respective parties and held that Hoode's contest must be dismissed because of the prior contest of Christiansen, that Sigler's application must be rejected because he is a stranger to the record, and that Christiansen should be allowed to proceed with his contest against the heirs and legal representatives of the deceased entryman. In your office letter of transmittal, it is stated that "the record of contest in the case of Christiansen v. Sando, and the appeal of John S. Sigler from a decision of the local officers adverse to him involving this entry, are also enclosed. The last named cases have not been finally passed upon by this office." It appears, however, that your office did reject Sigler's application, as above stated.

It thus appears that while appeals have been pending from the action of the local land officers, nevertheless they have allowed parties to proceed at much expense to prove the failure of the entryman and his heirs to comply with the requirements of the law as to cultivation and planting the land. This is bad practice and works an unnecessary hardship upon litigants. The first application of Christiansen should not have been allowed by the local officers without instructions from your office, on account of the pending contest of Hoode; but having been offered and having been perfected on March 10, 1883, and an appeal taken from its rejection, when your office rejected Hoode's prior contest on August 14, 1883, from which no appeal was taken, Christiansen's rights attached, and there was no error in allowing him to proceed with his contest in case the decision of your office became final, either for want of an appeal, or was affirmed by the decision of this Department. Churchill v. Seeley et al. (4 L. D., 589).

In his appeal, Hoode alleges that on February 26, 1883, he initiated a new contest, filing therewith his timber culture application for said. tract. But this statement does not appear to be confirmed by the rec

ord. It is true that upon the original contest affidavit filed by Christiansen appears this indorsement, "Rejected, because of a prior contest, Hoode v. Sando, filed Feb. 26, 1883." But the only prior contest filed by Hoode, as shown by the record, was the one filed on June 19, 1882, and his subsequent affidavit of contest was made and filed on October 24, 1883. So that Hoode's rights must be held subject to those of Christiansen. Sigler does not allege that Christiansen's contest is speculative and fraudulent, hence there was no error in refusing his application to contest. The conclusion of your office in the decision appealed from is accordingly affirmed.

REPAYMENT-DOUBLE MINIMUM EXCESS.

FREDERICK W. FRESE.

Repayment is allowed for double minimum excess paid on land subsequently found not to be within the limits of a railroad grant.

Acting Secretary Muldrow to Commissioner Sparks, February 26, 1887. By letter of the 11th instant, your office transmitted the "application of Frederick W. Frese for return of double minimum excess paid on San Francisco, California, pre-emption cash entry No. 7519, for the N. of SW. and N. 1⁄2 of SE. † of Sec. 2, T. 18 S., R. 3 E."

Said letter requests early action, "as there is a large number of cases of this class pending."

.

By act of Congress approved July 27, 1866 (14 Stat., 292), a grant of lands was made to the Atlantic and Pacific Railroad Company, "Beginning at or near the town of Springfield, in the State of Missouri, thence to the head-waters of the Colorado Chiquito, and thence along the thirty-fifth parallel of latitude, as near as may be found most suitable for a railway route, to the Colorado river, at such point as may be selected by said company for crossing; thence by the most practicable and cligible route to the Pacific." Several maps of definite location were filed, which carried the definite location of the road to San Bueneventura on the Pacific Ocean.

On March 12, 1872, said company filed in your office a map of definite location from San Francisco to San Miguel Mission, and thereupon your office, by letter of April 22, 1872, withdrew the odd sections along said. line and raised to the double minimum price the even sections. The land in question lies within the twenty mile limits therein defined, and in an even section.

It appears that Frese filed declaratory statement December 11, 1877, alleging settlement in October, 1872, and made final proof January 27, 1881, paying for the land at the rate of $2.50 per acre.

On March 23, 1886, this Department held that the acceptance of the maps of definite location between San Bueneventura and San Francisco

(one of them being that filed March 12, 1872,) was without authority and void, and that the company had no grant between these points. (4 L. D., 458.)

The act of June 16, 1880 (21 Stat., 287), provides that ". in all cases where parties have paid double-minimum price for land which has afterwards been found not to be within the limits of a railroad grant, the excess of one dollar and twenty-five cents per acre shall in like manner be repaid to the purchaser thereof, or his heirs or assigns." In the present case the applicant has paid the double minimum price for the land, and the land has afterwards been found not to be within the limits of a railroad grant.

I think this case comes clearly within the statute, and that repayment of the excess of one dollar and twenty-five cents per acre should be made.

PRACTICE-REVIEW-APPEAL.

W. F. HAWES ET AL. (ON REVIEW.)

The filing of an appeal, in any appealable case, is a waiver of any and all motions which may have been previously filed relative to the decision from which appeal is taken.

Acting Secretary Muldrow to Commissioner Sparks, February 28, 1887.

I have before me a motion, filed December 22d ultimo, in behalf of the Union Pacific Railway Company, assignee of the entrymen, for review of departmental decision of November 13, 1886 (5 L. D., 224), in the matter of the Gunnison, Colorado, coal entry No. 1, made June 6, 1883, in the names of Alfred R. King, Henry A. Tidd, Willis Mallory, and James Fisken.

September 22, 1884, counsel for the railway company, acting for said company as the purchaser of the land in question from the parties in whose names the filings and entry were made, filed in your office an application to have said coal entry No. 1 corrected, and asking that the parties to the several declaratory statements for the land be permitted to make separate entries in accordance with said declaratory statements, and also that an investigation be ordered touching the regularity and validity of said two declaratory statements and the rights of the respective declarants therein.

October 4, 1884, W. F. Hawes, acting for the railway company and also for King et al., the entrymen, filed in the local office an appeal from your office decision, holding the entry, No. 1, for cancellation, which appeal was on October 9, 1884, forwarded to your office, and was passed upon by the departmental decision sought to be reviewed. The motion for review insists that the application to have the entry amended