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of designated route filed in your office March 12, 1872, the withdrawal on which was ordered by your office letter of April 22, 1872, received at the local office May 7, 1872.

Gordon claims that the land covered by his homestead application was formerly within the exterior boundaries of the Azusa rancho and was thereby excepted from the operation of the railroad grant.

Of course, the railroad company makes no claim to that portion of the land covered by Gordon's homestead application, which falls in the even numbered section.

Lot 6 of Sec. 22 is therefore not in controversy in this case.

As to the residue of the land applied for by Gordon, it appears that the Southern Pacific Company, on the 25th of February, 1883, selected lot 2 of Sec. 27 and the S. of SW. of Sec. 23, and it claims the right under its grant to all the land described in said Sec. 23.

Your decision finds from an examination of the maps and diagrams on file in your office that lot 2 of Sec. 27 and the greater portion of the W. of SW. of Sec. 23 fell within the claimed limits of the Azusa rancho, as surveyed by George H. Thompson in 1868, but were excluded there. from by the Hancock survey, which was approved and patented May 29, 1876. You therefore hold that said tracts were sub judice at the date when the grant to the Southern Pacific Railroad Company became effective by the filing of its map of designated route in April, 1871, and also at the date of the indemnity withdrawal for the benefit of the Atlantic and Pacific Railroad Company, the order for which reached the local office May 7, 1872. So holding, your conclusion is that said lot 2 in Sec. 27, and the W. of SW. of Sec. 23 were excepted from the grant to the Southern Pacific Company, and from the withdrawal for the Atlantic and Pacific Company, and were subject to disposal as public lands.

After a careful examination of the maps and diagrams, I find that all of lot 2 in Sec. 27 and the major portion of the W. of SW. of Sec. 23 fall within the Thompson survey of the Azusa rancho, and I concur in your conclusion that said tracts were within the claimed limits of said rancho, and did not pass to the Southern Pacific Company under its grant, nor were they withdrawn for the benefit of the Atlantic and Pacific Company. In the case of Sansom v. Southern Pacific Railroad Company (4 L. D., 357), it was held by this Department that the claim to the Azusa rancho was sub judice until May 29, 1876, when patent issued thereon, and that lands within the claimed limits thereof were in reservation until that date.

As to the remaining portion of the land claimed by Gordon, to wit, the SE. of SW. of Sec. 23, you decide that the Southern Pacific Company can have no rightful claim for the reason that said tract is within the indemnity limits of the grant to the Atlantic and Pacific Company by act of 1866. You base your decision on this point on the

proviso contained in Sec. 23 of the act of March 3, 1871 (16 Stat., 579), making the grant to the Southern Pacific Company

"That this section shall in no way affect or impair the right, present or prospective, of the Atlantic and Pacific Company, or any other railroad company."

In the case of Sansom v. the Southern Pacific Railroad Company (supra), it was found by the Department that the Azusa rancho, "as originally claimed and granted, embraced all land having for its boundaries the Sierra, or mountain on the north, the western lines of San Jose, and San Jose addition on the east, the road of San Jose (which seems to be platted as San Bernardino road) on the south, and the Azusa, or San Gabriel river, and the boundary of Andres Duarte on the west."

I am inclined to think from an inspection of the maps before me that a critical examination of the maps, diagrams and diseño in the Azusa rancho record would show this tract to be south of the "Sierra, or mountain on the north," and consequently within the Azusa rancho as claimed, and for that reason excepted, like the other tracts described, from the grant to the one railroad, or the withdrawal for the other.

But, if this be not true, and the tract be, as your decision treats it as being, outside of the reservation on account of the Azusa rancho, your conclusion, based on section 23 of the granting act of March 3, 1871, is, in my judgment, correct, and the company appellant got no right to the tract under its grant.

In the case of the Texas Pacific Railroad Company and Southern Pacific (Branch Line) Railroad Company (4 L. D., 215), this Department had occasion to consider the effect of the proviso above quoted from Section 23 of the act of 1871.

In the opinion of the Assistant Attorney General in that case, which opinion was adopted by the Department, the following language was used relative to said proviso:

It is difficult to see how it would have been possible more clearly to except said lands from the operation of said grant to the Southern Pacific than by providing that the latter grant should not "affect or impair the right, present or prospective, of the Atlantic and Pacific Company, or any other railroad company.

What was there said is fully applicable to the branch of this case now under consideration and to the tract in question. The SE. of SW. of Sec. 23, if not within the exterior boundaries of the Azusa rancho, was embraced within the indemnity withdrawal for the Atlantic and Pacific Company, and gave to that company a prospective right which excepted the tract from the Southern Pacific grant.

This disposes of all the subdivisions embraced in Gordon's homestead application.

Your decision holding in effect that the Southern Pacific Railroad Company has no title or valid claim to any of the tracts herein described is confirmed.

DESERT LAND ENTRY-CONTEST-APPLICATION.

JEFFERSON v. WINTER.

A preference right of entry is accorded to one who by the initiation of contest secures the cancellation of a desert land entry.

Application to make desert land entry accompanied by the purchase money constitutes a segregation of the land.

Acting Secretary Muldrow to Commissioner Sparks, June 7, 1887.

I have considered the case of Ira A. Jefferson v. Timothy J. Winter, as presented by the appeal of the former from the decision of your of fice, dated October 2, 1885, holding for cancellation his desert land entry No. 927 of the NW. 4, the W. of the NE. † of Sec. 27, the SW. of the SE. 1, the SW. of the NW. 4, and the SW. of Sec. 22, the E. of the NE. and the E. of SE. of Sec. 21, T. 1 N., R. 2 W., made June 2, 1884, at the Salt Lake City land office, in the Territory of Utah.

. The record shows that on June 3, 1884, said Winter offered his application to enter said tracts under the act of Congress approved March 3, 1877 (19 Stat., 377), and said application was rejected by the local land officers, for the reason that the land had been appropriated by the prior entry of said Jefferson. Thereupon, Winter asked the register and receiver to reconsider their said action, which they refused to do. From the action of the local land officers rejecting his said application to enter said tracts, Winter duly appealed to your office, alleging that the prior entry of Jefferson was illegal, because received by the register after the close of the local land office on June 2; that the appellant's application was the first legal application for said land, and that it should have been allowed.

On July 24, 1885, your office directed the local land officers to report all of the circumstances attending the making of said entry by Jefferson. In compliance with said order, the register on September 9th following reported that on June 20, 1877, one Levi P. Luckey made desert land entry No. 125 of said tracts; that on June 11, 1883, said Jefferson filed his affidavit of contest against said entry, alleging abandonment and non-compliance with the requirements of said act; that said contest affidavit was transmitted to your office and on October 3, same year, said entry was held for cancellation; that no appeal having been taken, after due notice to the claimant, said entry was canceled by your office letter, dated May 22, and upon the receipt of said letter of cancellation by the local land office, said Jefferson was permitted to make his said entry on June 2, 1884. The register further reported that both Jefferson and Winter employed attorneys in the city of Washington, D. C., who notified them by telegraph when said letter of cancellation was mailed; that said letter was delayed several days, on account of breaks in the railroad, and reached the local land office on the evening of June

2d, about eight P. M.; that after the distribution of the mail the regis ter was accosted on the street and asked to go to the office, and swear the claimant and his witnesses to his entry papers; that he consented to do so, as he had never refused to accommodate claimants by allow. ing them to execute their papers out of office hours; that said papers were left in the local land office on the night of June 2d, and not act ually recorded and the certificate issued until the morning of June 3d, when they were recorded as of the date when they were received and sworn to; that the application of Jefferson was received in accordance with the practice of said local land office, established by the predecessor of the then register, and followed by him until the instructions of your office to Inspector Hobbs, on September 4, 1884 (11 C. L. O., 178), prohibited such practice.

Your office, on October 2, 1885, considered the appeal of Winter and held that Winter had the prior right, because the application of Jefferson was made after office hours, and it was therefore illegal.

From the foregoing, it is apparent that Jefferson had the preference right of entry of said land. He had filed his affidavit of contest against the former entry, and it was upon his information that the same was canceled. This fact under the decision of this Department in the case of Fraser v. Ringgold (3 L. D., 69), gave him a preference right of entry of said tract. When said application of Jefferson was received by the register the land was vacant public land, subject to entry, and, irrespective of the preference right of entry secured by the act of Congress approved May 14, 1880 (21 Stat., 140), said application of Jefferson, the purchase money having been received prior to any other application, served to segregate said land and operated as a bar to the reception of another application. Sarah Renner (2 L. D., 43); Thorpe. et al. v. McWilliams (3 L. D., 341); Florey v. Moat (4 L. D., 365).

A careful examination of the whole record shows no good reason why the action of the local officers should not be affirmed.

The decision appealed from is therefore reversed.

SIOUX HALF-BREED SCRIP-RE-ISSUE IN SMALLER DENOMINATION. S. L. M. BARLOW.

At any time prior to location forty-acre scrip may be substituted in place of scrip of a larger denomination.

Acting Secretary Muldrow to Commissioner Sparks, June 10, 1887.

In the matter of the application of the Hon. S. L. M. Barlow of New York City, for the exchange of certain pieces of Sioux Half Breed scrip of one hundred and sixty acres each, for se rip of the denomination of forty acres each, which accompanied your letter of 25th May last and which was referred to the Hon. Asst. Attorney-General for

this Department for an opinion thereon, that officer under date of 9th instant communicates his views to this Department (copy herewith), to the effect that he sees "no legal objection to substituting forty acre scrip in place of scrip of a larger denomination at any time before the latter is located."

Under date of 3rd instant Mr. J. H. Parsons of this city as attorney for Mr. Barlow, filed in this Department three pieces of Sioux Half Breed scrip, viz:

No. 356, "D" for 160 acres, Louis Langie

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which letter and scrip are herewith enclosed together with his statement in the case of 7th instant.

In view of the opinion of the Hon. Assistant Attorney-General, above referred to, you are hereby instructed to cancel the said scrip, and issue new scrip of the denomination of forty acres each in lieu thereof and transmit the same to Mr. Parsons.

SCHOOL INDEMNITY-SELECTIONS IN COLORADO, IN LIEU OF MINERAL LANDS IN SECTIONS SIXTEEN AND THIRTY-SIX.

CIRCULAR.

Commissioner Sparks to registers and receivers in Colorado, March 23, 1887.

Appended are the seventh section of the act of March 3, 1875, granting lands to Colorado for schools; the fourteenth section of said act, providing for the sale of the lands to create a school fund; the fifteenth section of the same act, excepting mineral lands from the grant; and the first and second sections of the act of April 2, 1884, providing that the State shall be allowed to select lands in lieu of such of the sixteenth and thirty-sixth sections as may have been or shall be found to be mineral lands. Respecting school indemnity selections on mineral bases under the act of 1884 you will be guided by the following instructions:

1. A determination by the Secretary of the Interior, or a decision by this office or the local officers, which becomes final under the Rules of Practice, that a school section or a part thereof is mineral land, and that the title thereto is not in the State, will place the land in the class of bases that may be used in selections of land as indemnity.

2. All the lands in said sections sixteen and thirty-six returned as non-mineral must be presumed to be school lands for the purposes of this act until the presumption is overthrown in the manner hereinafter indicated. The bare return of lands as mineral by the surveyor-general will not be regarded as conclusively classifying them as mineral, the returns of deputy surveyors as to the character of the land surveyed having been found in many cases to be indefinite or erroneous.

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