tions per mile on each side of said road; but in case it shall appear that the United States have, when the lines or route of said roads are definitely located, sold any section or part thereof granted as aforesaid, or that the right of pre-emption or homestead settlement has attached to the same, or that the same has been reserved by the United States for any purpose whatever, then it shall be the duty of the Secretary of the Interior to cause to be selected" indemnity lands. The grant was accepted by the legislature of said State, and the lands in question. granted to the Southern Minnesta Railroad Company. By the proviso in section four of the granting act, said road was required to be completed within ten years from the acceptance of the grant; and in case of default, "the said lands hereby granted and not patented shall revert to the United States." Said company having failed to complete the road within the time prescribed by the granting act, the legislature of said State, by act approved March 6, 1878, granted to the Southern Minnesota Railway Extension Company all the lands, rights, powers, and privileges granted and conferred upon said State by said act of July 4, 1866, appertaining to the incompleted line of the Southern Minnesota Railroad Company, under certain conditions therein expressed.

It appears that at the date of the granting act, the lands applied for were covered by homestead entries, which were canceled for abandonment subsequently to the time when, as held by your office and this Department, the right of said company attached.

In the case of L., L. & G. R. R. Co. v. United States (92 U. S., 733), construing a grant substantially the same as the grant in question, it was held that said grant "creates an immediate interest and does not indicate a purpose to give in future. There be and is hereby granted' are words of absolute donation and import a grant in presenti ;" that "it covered all the odd sections which should appear on the location of the road to have been within the grant when it was made. The right to them did not, however, depend on such location, but attached at once on the making of the grant. It is true, they could not be identified until the line of the road was marked out on the ground, but as soon as this was done it was easy to find them."

The Supreme Court in Newhall v. Sanger (Idem, 761) cites the above case with approval, and says: "As the premises in controversy were not public lands, either at the date of the grant, or of their withdrawal, it follows that they did not pass to the railroad company."

The decisions of this Department seem to be in harmony with the above cases. In Dalton v. So. Minn. R. R. Co. (3 C. L. O., 179) Mr. Secretary Chandler held that a homestead entry of record at the date of the granting act, for the benefit of said company, excepted the tract therefrom.

To the same effect is the departmental decision in the case of White v. H. & D. R. R. Co. (6 C. L. O., 54), wherein it is also decided that the claim of the company that the case was res adjudicata, because the tract

in question had been applied for by another person whose claim was rejected and the land awarded to the company, can not be sustained. Said decision also states that "it matters not what the condition of the tract may have been at the time the grant to the company took effect (by definite location), so far as the tract in question is concerned no grant of the same has ever been made."

As none of the tracts applied for have been certified to the State, the title thereto still remains in the United States; (So. Minn. Railway Ext. Co. v. Kufner, 2 L. D., 492).

The precise question, so far as relates to the claim of the company, was decided by this Department in the case of Graham v. H. & D. R. R. Co. (1 L. D., 380), in which it was held, that an entry of record, which on its face is valid, reserves the land covered thereby from the operation of any subsequent law, grant, or sale, until a forfeiture is declared and the land is restored to the public domain in the manner prescribed by law.

Your decision of March 10, 1883, is accordingly affirmed.

ALABAMA MINERAL LANDS.

NANCY ANN CASTE.*

The general instructions of April 22, 1880, revoking mineral withdrawals, and shifting the burden of proof from agricultural to mineral claimants, applied to the public lands in Alabama as well as to those in other States.

The act of March 3, 1883, providing for the sale of mineral lands in Alabama, had reference solely to such of those lands as had not been previously disposed of; entriesor applications, with satisfactory proof and tender of purchase money-previously made were valid appropriations of the lands which they covered, unless impeached for fraud in the usual manner, upon which the act had no retroactive effect. Where at the date of filing or entry no mineral was known to exist, the fact that mineral is subsequently discovered will not operate to deprive a settler of the right to perfect his claim, in case he complies with all legal requirements in regard to residence, cultivation, and improvement of the land.

Lands covered by bona-fide perfected or inchoate settlement claims cannot be offered at public sale under said act.

Secretary Teller to Commissioner McFarland, April 3, 1884.

I have considered the case of Nancy Ann Caste, on appeal from your decision of October 1, 1883, rejecting her pre-emption proof made June 3, 1882, on the ground that the land, being vacant and having been reported as containing "valuable coal," must be offered at public sale under the act of March 3, 1883 (22 Stat., 487).

It appears that she filed declaratory statement, No. 581, October 14, 1881, for the N.W. of S.W. of Sec. 6, T. 17, R. 1, Montgomery, Alabama, alleging settlement October 3, 1881.

*This case was unintentionally omitted from the last volume.

The record before me shows that a number of tracts of land in that district, including the one under consideration, were reported by a special agent February 1, 1879, as "valuable coal." In consequence of that report, instructions were issued by this Department on August 2, 1879, as follows: "So far as the lands are mineral, they should be withheld from sale and disposal-no matter what their value at present may appear to be until further legislation is had upon the subject. The lands not mineral in said district should be offered for sale and disposal in accordance with existing law."

On April 22, 1880, this Department directed (7 C. L. O., 36) that all general withdrawals of mineral lands should be revoked; that the then existing policy of throwing the burden of proof on agricultural applicants be reversed, and that a non-mineral affidavit fiied by the applicant should be deemed sufficient; that when a person alleged the land to be mineral, he should be required to affirmatively prove the allegation. This revocation was held by your office to apply to the withdrawal of mineral lands in Alabama, directed by the instructions of August 2, 1879. On May 2, 1881, instructions were issued to the register and receiver at Montgomery, as follows: "Hereafter, whenever applications to enter lands which, prior to April 27, 1880, were withdrawn as mineral, are filed in your office, you will proceed as follows; if application be for entry under the homestead or pre-emption laws, you will allow the same, and, at the date of final proof, you will require the applicant to file his own non mineral affidavit, which will be considered sufficient unless the land is specifically alleged to be mineral. If the entry be under any other act, you will require the applicant to file his non-mineral affidavit, without publication or posting of notice, unless the land has been returned as mineral by the surveyor general, and allow the entry upon proper compliance with the law."

These instructions do not appear to have ever been revoked in form, although inquiry by special agents was instituted into alleged fraudu lent appropriation of mineral lands in that State; and by letters of your office dated June 3, 1882, the district officers in Alabama were instructed that lands containing valuable deposits of coal could only be disposed of under the Coal Land Act of March 3, 1873.

This was the very day on which the claim of Miss Caste was proved up before the clerk of the court, and of course the instructions could not have reached the local office. Accompanying the final proof is a non-mineral affidavit executed by the claimant on the same day. Her witnesses also both testify to the absence of any indications of coal or mineral in the land, and swear that the same is more valuable for agricultural than mineral purposes. These papers appear to have been executed before the clerk of a court of competent jurisdiction, but there is nothing to show when they were filed in the district office, or that the requisite purchase money was deposited with the local land officers at any time in payment for the land. An application to purchase the

land was filed with those papers, which is certified by the register. On this paper is endorsed a memorandum as follows: "Deposited by P. J. S. $50.00,❞ apparently made by the receiver, the initials being those of that officer; other memoranda indicate that it passed through his hands.

The pre-emption proof shows the approval of the register, by his signature; but when it was approved does not appear. The certification of posting of notice in his office for thirty days is dated July 5, 1882, and is attached to the affidavit of the publisher of the newspaper in which the notice was published, the affidavit being dated June 30, 1882. All these matters indicate that on this date, July 5, 1882, the proof was complete in the local land office; but why the entry was not completed and reported to your office is not explained. Some explanatory affidavits respecting the claim were subsequently filed in behalf of the applicant; the last bearing date December 12, 1882; all having been made before the same clerk of court who took the original proof. There is no correspondence to show why they were filed.

The papers were not transmitted to your office until September 22, 1883, by the receiver, who stated as follows: "The enclosed proof appears full and complete, and pre-emptor made her proof within the twelve months as required by law, but final papers are not issued becanse under instructions contained in your letter (C) of August 2, 1883, in the case of declaratory statement filing of Richard E. M. Thompson (application to transmute his declaratory statement No. 349 to that of a homestead entry), where the land had once been classed as being valuable for mineral, you hold that the act of March 3, 1883, provides for the disposal of all the lands in the State of Alabama, theretofore reported to your office as containing coal or iron, at public sale by President's proclamation. You further hold that the mere filing of a declaratory statement is not sufficient to withdraw lands from the operation of the act. The land embraced in the enclosed proof is shown by the list furnished by your office as being valuable for coal; consequently there arises a doubt in my mind as to whether I would be justified in issuing final papers. I therefore submit the proof for your consideration and instruction."

This letter does not cover the period between the filing of the proof in the district office and the receipt of the instructions of August 21, 1883, referred to, and fails to show why the entry had not been duly reported, or rejected by the register and receiver, when final proof was made, or subsequently, prior to the act, which in the receiver's opinion bars the issue of the final certificate; and this opinion you have sustained by your decision from which this appeal is taken. Consequently I am unable to determine what facts or circumstances intervened to prevent the completion of the entry and its proper transmittal with the monthly returas of July, 1882, or at the expiration of such subsequent

period as may have elapsed pending the receipt of the additional proofs submitted by the affidavits referred to.

It is evident that the act of 1883 did not cause this suspension; for that act had not then been passed. It may have occurred through mere neglect of the district offices to report the entry. The register's endorsement of approval shows that he was satisfied with the proof. That the present receiver was also satisfied when he transmitted the same is shown by his report, stating that "the enclosed proof appears full and complete, and pre-emptor made her proof within the twelve months as required by law." What was the opinion of the former receiver is not shown; but the endorsement under his initials of the deposit of $50 would indicate that he was cognizant of the filing of the papers, and no objection to the sufficiency of the proof appears anywhere in the case. The only defect apparent is the omission to issue the proper certificate and receipts and make formal report of the entry. In any ordinary case it would be adjudged upon this showing that if the party paid or tendered the money for the land, her right vested at that date, and the failure to report the entry was a clerical error on the part of the register and receiver, and that the further failure of the receiver to account for the money would amount to official negligence, if not more serious misconduct. Her right to the land could not be affected by such failure. The correction of the error is ministerial merely, and when made relates to the date of payment, which if proved as indicated was prior to the passage of the Act of March 3, 1883. If without fraud, the entry, conforming (as it does) in all matters of proof to the instructions in force at its date, must be adjudged valid, and therefore a legal appropriation of the land.

"The Act of 1883 provides for the future disposition of public lands"; (U. S. v. Pratt Coal & Coke Co., et al., C. C. Nor. Dist. Ala., June, 1883, 18 Fed. Rep., 708.) It has nothing to do with titles previously acquired. As before stated, such titles, unless impeached for fraud, are valid appropriations. Without proof of fraud, patent could not be withheld upon an entry made prior to its passage, merely because the act requires that before disposal of the public lands as agricultural, "all lands which have heretofore been reported to the General Land Office as containing coal and iron shall first be offered at public sale." That condition and restriction relates to the lands then public, for the future disposition of which, as we have heretofore seen, the act provides. If already disposed of, they were not public lands, but had passed into private appropriation, and do not fall within the descriptive terms of the law.

The entry in question is a pre-emption. The restrictions of the preemption law are liberally construed in the interest of actual settlers. The exception as to mines is contained in Section 2258 of the Revised Statutes, and is expressed in the following words: "Lands on which are situated any known salines or mines." The suggestion that possibly mines of coal may be found to exist upon a tract of land claimed by a