to lands under the pre-emption or homestead laws already initiated, and specifically provides that parties who have existing pre-emption rights may transmute them to homestead entries and perfect title to the lands under the homestead laws, although they may have heretofore had the benefit thereof. Therefore you will not hereafter reject a homestead application on the grounds that the applicant can not make the prescribed oath that he has not previously made such an entry, but he will be required to show by affidavit, designating the entry formerly made by description of the land, number and date of entry, or other sufficient data, that it was made prior to the date of said act, and also that he has not since perfected a pre-emption or homestead title initiated prior to that date. Here was warrant for Henermond to do just what he did in this case. In the case in 12 L. D., 268, decided March 21, 1891, Thomas Fitzpatrick made original or first homestead entry June 14, 1888, afterwards claiming that the tract entered was not the tract he intended to enter, and averring that the tract he intended to enter had been appropriated by another entryman, he applied to amend to another and a newly selected tract. The decision held that under such circumstances he could not amend, but he could, under the act of March 2, 1889, relinquish his original entry and make entry of the tract desired, thus directly recognizing the right to relinquish an entry made prior to March 2, 1889, and not then or thereafter perfected, and make a new, or a second, entry. In fact, that this was the only relief to which he was entitled. In Miller v. Craig (15 L. D., 154) it was held that a failure on the part of Miller to secure title under a homestead entry made prior to March 2, 1889, said entry being thereafter canceled for failure to comply with the law, did not defeat his right to a second entry under the act of March 2, 1889. In Dowman v. Moss (19 L. D., 526) a different view was expressed. It was said that the intent of the second section of the act of March 2, 1889, was to afford relief to those entrymen who for some reason had lost their land, and under the law were precluded from making a second entry. It was not intended to allow those who made entry before the approval of the act, to relinquish it and make a new entry. This was not necessary to the decision in that case. It was obiter dictum, and will not be followed. After full and careful consideration of the law in question, I have no hesitation in concluding that it provides for the allowance of second homestead entry in any case in which the applicant, prior to the enactment of the statute, made entry under the homestead law but has not perfected title thereunder, either before or since that time. The conclusion in this case therefore is that Henermond's homestead entry, made December 9, 1892, was properly allowed, and that your office decision dismissing the contest of Hertzke was and is correct. Said decision is accordingly affirmed. RAILROAD GRANT-INDEMNITY WITHDRAWAL. LARSON v. ST. PAUL, MINNEAPOLIS AND MANITOBA RY. Co. Lands embraced within the indemnity withdrawal for the benefit of the main line of the St. Paul, Minneapolis, and Manitoba road, under the grant of March 3, 1857, are not by such reservation excluded from the operation of the subsequent grant of 1871 for the St. Vincent extension of said road. The case of the St. Paul, Minneapolis and Manitoba Ry. Co. v. Hagen, 20 L. D., 249, overruled. Acting Secretary Ryan to the Commissioner of the General Land Office, (W. V. D.) August 2, 1897. (F. W. C.) With your office letter of March 31, 1896, was forwarded a motion, filed on behalf of the St. Paul, Minneapolis and Manitoba Railway Company, for review of departmental decision of February 10, 1896 (not reported), in which your office decision of July 31, 1894, holding that the E. of the NE. of Sec. 21, T. 131 N., R. 43 W., St. Cloud land district, Minnesota, was excepted from the grant to said company on account of the St. Vincent Extension, was affirmed. Said motion was entertained and returned for service February 24, 1897. It has been again filed, bearing evidence of service, and was transmitted with your office letter of April 15, 1897. The tract involved is within the indemnity limits of the grant to said company under the act of March 3, 1857 (11 Stat., 195), as adjusted to the line of location of what is known as the main line of said road. Upon the adjustment of the limits under the grant made by the act of March 3, 1871 (16 Stat., 588), for the St. Vincent Extension of said road, it was found that this tract fell within the primary or granted limits of the said grant. The present controversy arose upon the tender of a homestead application by Christian M. Larson on September 4, 1887. The company lays no claim to the land on account of the grant under the act of 1857, for its main line, but urges that it passed under the grant of 1871, upon the definite location of the St. Vincent Extension on December 19, 1871. The record discloses no adverse claim to the land on December 19, 1871, nor is any alleged by Larson. The decision under review held, following the decision in the case of said company v. Hagen (20 L. D., 249), that the withdrawal for indemnity purposes upon the main line, existing at the date of definite location of the St. Vincent Extension, served to except the tract from the operation of the grant under the act of 1871. The motion for review is based upon the ground that said decision of this Department, which holds that the indemnity withdrawal for the main line will defeat the operation of the subsequent grant for the St. Vincent Extension, is in conflict with the decision of the supreme court in the case of Wisconsin Central v. Forsythe (159 U. S., 46). In that case, the tract involved is within the indemnity limits of the grant made by the act of June 3, 1856 (11 Stat., 20), to the State of Wisconsin, to aid in the construction of what is known as the Bayfield branch of the Chicago, St. Paul, Minneapolis and Omaha Railroad. On account of the grant under the act of 1856, this Department withdrew the indemnity lands opposite said Bayfield branch. On May 5, 1864 (13 Stat., 66), a grant was made to the State of Wisconsin to aid in the construction of what is known as the Wisconsin Central Railroad, and the limits under this latter grant, as adjusted to the line of definite location, overlapped the indemnity limits under the act of 1856 for the Bayfield branch of the Omaha road. In the administration of these grants, this Department held that the reservation under the act of 1856 was sufficient to defeat the operation of the subsequent grant under the act of 1864. In the case referred to, however, the court held that lands within the indemnity limits under the act of 1856 were subject to the control of Congress, and from a consideration of the act of 1864 it was found that it was the intention of Congress to grant the same to aid in the construction of the Wisconsin Central Railroad. In said opinion it was stated: The land was, therefore, subject to the full control of Congress at the time of the passage of the act of 1864. What did Congress intend by that act? It had in 1856 granted to the State of Wisconsin six sections per mile to aid it in the construction of a road from Madison or Columbus, by way of Portage City, to the St. Croix River or Lake, and thence to the west end of Lake Superior, and to Bayfield, with a proviso that if the road was not completed within ten years the unsold lands should revert to the United States. Wisconsin had accepted this grant, and thus impliedly undertaken to construct the road. . . . . It was evident that the inducement of six sections per mile had not been sufficient to secure the construction of the road in the comparatively uninhabited portions in the northwestern part of the State, and so Congress determined to enlarge its grant in order to secure the accomplishment of the desired end. At the same time it perceived that the public interests required an additional road running through the central portion of the State northward to the two termini on Lake Superior, named for the road from St. Croix Lake or River. And so it passed the act of 1864. This made a grant to the same grantee, to wit, the State of Wisconsin, but expressed the terms and purposes in three separate sections. Congress evidently knew that at the time two companies had been named by the State of Wisconsin as the parties to construct the road provided for by the act of 1856. So, in the first section, it made a grant of ten sections per mile to aid in the construction of a road from St. Croix River or Lake to the west end of Lake Superior, with a branch to Bayfield; in the second, a grant in substantially like terms for a road from Tomah to the St. Croix River or Lake; and in the third, a grant also of ten sections per mile to aid in the construction of a road from Portage City, Berlin, Doty's Island, or Fond du Lac, as the State should determine, in a northwesterly direction to Bayfield, and then to Superior, on Lake Superior. In each of these three sections it named the State of Wisconsin as the grantee. Although it knew that the State had made two separate companies the beneficiaries of the act of 1856, it made no grant to those companies. It dealt in all three sections with the State, relying upon the State as the party to see that the roads were completed, and to use its own judgment as to the manner of securing such construction. The act of 1864 was, therefore, a mere enlargement of the act of 1856, was made to the same grantee, was in pari materia, and is to be construed accordingly. It is not to be treated as an independent grant to a different party, and, therefore, liable to come in conflict with the rights of the first grantee. For whose benefit was the withdrawal of the lands within the indemnity limits of the Bayfield road made? Obviously, as often declared, for the benefit of the grantee. It is as though the United States had said to the grantee: we do not know whether, along the line of road, when you finally locate it, there will be six alternate sections free from any pre-emption or other claim, and, therefore, so situated that you may take title thereto, and so we will hold from sale or disposal to any one else an additional territory of nine miles on either side that within those nine miles you may select whatever lands may be necessary to make the full quota of six sections per mile. When Congress, by a subsequent act, makes a new and absolute grant to the same grantee of lands thus held by the government for the benefit of such grantee, upon what reasoning can it be said that such grant does not operate upon those lands. * * When Congress makes a grant of a specific number of sections in aid of any work of internal improvement, it must be assumed that it intends the beneficiary to receive such amount of land, and when it prescribes that those lands shall be alternate sections along the line of the improvement, it is equally clear that the intent is that if possible the beneficiary shall receive those particular sections. So far as railroads are concerned, it is the thought not merely that the general welfare will be subserved by the construction of the road along the lines indicated, but further, that such grant shall not be attended with any pecuniary loss to the United States; for the universal rule is to double the price of even sections within the granted limits. The expectation is that the company receiving the odd sections will take pains to dispose of them to settlers, and thus by their settlement and improvement increase the value of the even sections adjoining and so justify the added price. To fully realize this expected benefit it is essential that the lands taken by the company shall be as near to the line of the road as possible; and so, while selection of remote lands is permitted, it is only when and because there is a necessity of such selection to make good the amount of the grant. Obviously, therefore, an act must be construed to realize, as far as is possible, this intent and to accomplish the desired result. The only difference between the case before the court and that now under consideration is, that in the act of 1871 Congress seems to have recognized that the State of Minnesota, the grantee under the act of 1857, had conferred the grant provided for in said latter act, for the road under consideration, upon the St. Paul and Pacific Railroad Company. And in said act it is provided: That the St. Paul and Pacific Railroad Company may so alter its branch lines that, instead of constructing a road from Crow Wing to St. Vincent, and from St. Cloud to the waters of Lake Superior, it may locate and construct, in lieu thereof, a line from Crow Wing to Brainerd, to intersect with the Northern Pacific Railroad, and from St. Cloud to a point of intersection with the line of the original grant at or near Otter Tail or Rush Lake, so as to form a more direct route to St. Vincent, with the same proportional grant of lands to be taken in the same manner along said altered lines, as is provided for the present lines by existing laws. In the administration of the grant under the act of 1871, the lands have heretofore been certified and patented to the State and by the State conveyed to the railroad company; and from a consideration of the decision of the supreme court in the Forsythe case I can see no good reason for adopting a different rule in relation to the grants under the acts of 1857 and 1871, from the rule established by the court in that case. I must therefore hold that the previous adjudication of this Department, treating the indemnity reservation under the act of 1857, for the main line of the Manitoba road, as sufficient to except the land embraced therein from the operation of the grant made by the act of 1871, was error. The decision under review is accordingly recalled and vacated; and as the tract under consideration was otherwise subject to the grant under the act of 1871, at the date of the definite location of the road, I must hold that it passed thereunder and that no rights were acquired by Larson under his application presented as aforesaid. Said application will accordingly stand rejected. The decision in the case of said company v. Hagen, supra, is overruled, and in the future administration of these grants you will be governed accordingly. REPAYMENT-ASSIGNEE-ACT OF JUNE 16, 1880. A person holding under a deed executed prior to the submission of final proof and the issuance of final receipt has no standing as an assignee under the statute providing for repayment. The departmental decision of July 13, 1896, 23 L. D., 137, recalled and vacated. (J. L. McC.) On May 2, 1893, May Campbell made timber-land entry of the N. of the SE. of Sec. 8, T. 49 N., R. 6 W., Ashland land district, Wisconsin. On January 25, 1894, your office notified the local officers that said entry was on that date held for cancellation for the reason that the land covered thereby had been "offered," and was not subject to entry under the timber-land act. Such notification was transmitted to claimant's address at Iron River (given in the entry papers as her place of residence), but it was returned unclaimed. Your office, therefore, on June 8, 1894, canceled the entry upon its records. On September 1, 1894, W. E. McCord, claiming to be the owner of the land described, through purchase from Miss Campbell, applied in due form for repayment of purchase money, fees, and commissions. This application your office, by letter of October 10, 1894, submitted to the Department, which, on November 13, 1894, returned the same approved. In order to obtain repayment it was necessary, according to the regulations of your office, to submit "properly authenticated abstracts of title, or the original deeds or instruments of assignment." Upon examination of the deed and abstract of title it became apparent that said deed had been made and executed by Miss Campbell prior to her |