entry, in which latter event, his relinquishment should be allowed without prejudice to his making a new filing for other tracts. With this modification, your said decision is affirmed.

RAILROAD GRANT-INDEMNITY SELECTION-EXPIRED FILING.

CHICAGO, MILWAUKEE & ST. PAUL RY. Co. v. AMUNDSON.

An expired pre-emption filing of record at the date of application to select indemnity, does not bar selection of the land covered thereby, unless it be shown that the pre-emptor had not in fact abandoned his claim.

In such a case a hearing is necessary in order to determine the status of the land at date of selection.

Secretary Vilas to Commissioner Stockslager, February 25, 1889.

I have considered the case of the Chicago, Milwaukee and St. Paul Railway Co. v. Jeff. Amundson, as presented by the appeal of the company from the decision of your office, holding for cancellation its selection of N. of the S. E. and the S. of the N. W. of section 29, T. 102 N. R. 26 West of the fifth principal meridian, Worthington land district Minnesota. The record shows that said tracts are within the limits of the indemnity withdrawal ordered by your office letter dated August 23, 1866, and received at the local land office on September 10, 1866; that on September 7, 1864, one Daniel F. Rogers filed pre-emp tion declaratory statement No. 12,817 for said tract (unoffered) alleg ing settlement thereon August 15, 1864, which filing is still of record; that on June 22, 1876, said company was allowed to select said land (per list No. 16) and a duplicate selection of said land was made by the company in November, 1877; that said Amundson applied to enter said land under the timber culture law, on July 11, 1882, and his appli cation was rejected by the register and receiver because of conflict with said selections by said company. On September 29, 1883, your office ordered a hearing for the purpose of ascertaining whether said "land was actually occupied by a qualified entryman at date of withdrawal or dates of selection by the company. Subsequently Amundson finding it impossible to prove the occupancy of said land at said dates, on account of the lapse of time, applied to your office, through his attorney, to know if a hearing was "necessary under existing rules and regulations," on November 18, 1887, your office decided that the filing of Rogers was subsisting on the official records at the date of the receipt of the withdrawal order, and the dates of selection of the land on account of the railway grant, and served to except the tracts from any effect which said order might have had, and was a bar to the selection of the same for railroad purposes, and that said selections must be held for cancellation. It is unquestionably true that a valid settlement existing at the date of withdrawal excepts the land covered thereby from the effect

of said withdrawal. But it by no means follows that an expired filing (as Roger's was) bars the right of selection of said company. In the case of Bright v. Northern Pacific R. R. Co., (6 L. D., 613) the Department held that an expired pre-emption filing at the date of the company's application to select land as indemnity, does not bar the selec tion unless it be shown that the pre-emptor had not in fact abandoned his claim, and that a hearing should be ordered to determine the status of the tract at the date of selection. The decision of your office is accordingly modified and you will direct the local officers to order a hearing in accordance with the rules of practice to determine the status of said tract at the date of said selections, and whether it was occupied by a qualified pre-emptor. Upon receipt of the testimony taken at said hearing, together with the opinion of the local officers thereon, your office will re-adjudicate the case.

RAILROAD GRANT-WITHDRAWAL-PRE-EMPTION FILING.

SIOUX CITY AND PAC. R. R. Co. v. LEWIS ET AL.

A prima facie valid pre-emption filing, existing of record, is sufficient to except the land covered thereby from the operation of a withdrawal on general route, authorized by section 7, act of July 1, 1862.

Secretary Vilas to Commissioner Stockslager, February 25, 1889.

I have considered the case of the Sioux City and Pacific Railroad Company e. Lewis and Elliott as presented by the appeal of the company from the decision of your office, dated July 8, 1884, rejecting its claim to the SW. of Sec. 15, T. 20 N., R. 11 E., Neligh land district, in the State of Nebraska, and allowing the applications of R. C. Lewis and of Timry Elliott to enter the south half and the north half of said quarter section, respectively.

Said tract is within the limits of the grant to said company, under the act of Congress, approved July 1, 1862 (12 Stat., 489), and the amenda tory act of July 2, 1864 (13 Stat. 356).

On June 27, 1875, within the time required by law, the company filed in your office its map of general route.

By the seventh section of said act of 1862, it is provided:

That within two years after the passage of this act, said company shall designate the general route of said road, as near as may be, and shall file a map of the same in the Department of the Interior; whereupon the Secretary of the Interior shall cause the lands within fifteen miles of said designated route or routes, to be withdrawn from pre-emption, private entry, and sale.

The road was definitely located on January 4, 1868. No withdrawal was made under the provisions of said section seven, but the lands within the limits thereof were held open to settlement and entry under the general land laws of the United States, up to the date of the definite location of the road.

Your office decision states that:

The records show that on May 27, 1867, William E. Ross made homestead entry No. 1353 of said tract, and that said entry remained of record until May 15, 1875, when it was canceled for failure to make proof of compliance with the law within the statutory period,

and your office held that

Under the rulings of this office and the Department, said entry, subsisting at the date when the right of the railroad company attached, excepted the land from the grant, and upon cancellation thereof said land became subject to entry by the first legal applicant.

The company insists that said entry of Ross was illegal, because made after the filing of its map of general route in your office, and that its rights can not be affected by the failure of the Department to withdraw said land, as required by said section. It will be observed, however, that the language of said seventh section is, "The Secretary of the Interior shall cause the lands within fifteen miles of said designated route or routes to be withdrawn from pre-emption, private entry and sale," etc.

In the case of the Kansas Pacific Railway Company . Dunmeyer (120 U. S., 629), the supreme court considered said acts, and also the act of July, 3, 1866 (14 Stat., 356), which provided that upon the filing of the map of general route of the road (the Kansas Pacific)," the lands along the entire line thereof, so far as the same may be designated, shall be reserved from sale by order of the Secretary of the Interior." The court said (Op., p. 638):

It will be observed that by the act of 1872, upon the filing of the company's map of designation of its general route, the Secretary was required to withdraw the lands within fifteen miles of said designated route from "pre-emption, private entry and sale." In the terminology of the laws concerning the disposition of the public lands of the United States, each of those words has a distinct and well known meaning in regard to the mode of acquiring rights in these lands. This is plainly to be seen in the statutes we are construing. In the third section or granting clause there are excepted from the graut, all lands which at the time the definite location of the road is fixed had been sold, reserved or otherwise disposed of, and to which a pre-emption or homestead claim had attached. Here sale, pre-emption, and homestead claims are mentioned as three different modes of acquiring an interest in the public lands, which is to be respected when the road becomes located, and the words are clearly used because they were thought to be necessary.

Whether a withdrawal, which, if it had been ordered, the court, in the Dunmeyer case (supra), said the Secretary was "authorized” (Op., p. 636) or "required" (Op., p. 638) to make, under said section, would have operated to reserve the lands in question from the homestead entry of said Ross, is not necessary to be decided in the case at bar. For an inspection of the records of your office shows that one Lawrence Lansing filed his pre-emption declaratory statement, No. 739, for said land on March 7, 1865, alleging settlement thereon same day. Said pre-emption filing being prima facie valid and of record at the date of the filing of the map of designated general route served to except said

land from the operation of a withdrawal, if one had been made, as authorized by said seventh section of said act. Malone v. Union Pacific Railway Company (7 L. D., 13); Millican v. Northern Pacific R. R. Co. (id., 85); Northern Pacific R. R. Co. v. Wiley (id., 354); Same v. Johnson (id., 357).

It follows, therefore, that the conclusion of your office, rejecting the claim of said company, was correct, and it is accordingly affirmed.

TIMBER CULTURE CONTEST-PRACTICE-REVIEW-HEARING.
POLLARD v. RETHKE ET AL.

A charge of sale, relinquishment, and abandonment, is a sufficient basis for a timber culture contest.

Where a new question, or one not previously presented, is relied upon for setting a decision aside, the better practice is to bring such matter before the tribunal rendering the decision, by a motion for review, instead of raising the question on appeal.

The integrity of the record is not impeached by an unverified statement; nor will such a statement warrant a hearing to determine a question of priority alleged in the face of an adverse record.

Secretary Vilas to Commissioner Stockslager, March 1, 1889.

Frederick Kruger appeals from the decision of your office of September 12, 1887, in the case of George D. Pollard v. John Rethke, awarding to said Pollard the preference right of entry on Lot 3, Sec. 2, T. 120 N., R. 49 W., Watertown district, Dakota Territory.

Rethke made homestead entry, No. 15,213, of said tract, November 28, 1885, and on May 13, 1887, Pollard filed an affidavit of contest against said entry, accompanied by an application to enter the land under the timber-culture law, alleging as ground of contest that "Rethke has wholly abandoned said trust; that he has relinquished and sold his right, title, and interest thereto and has removed from the Territory of Dakota, and that said transaction was for speculative purposes."

The local officers refused to entertain the contest on the ground that said allegations were "no cause of contest." The next day "the relinquishment of Rethke was filed" and his entry canceled on the records of the local office. May 17, 1887, Frederick Kruger made timber culture entry of the land and on the 24th of said month Pollard appealed to your office from the ruling of the local officers rejecting his application to contest, and, on said appeal, your office reversed said ruling, holding that the allegations of the affidavit of contest were sufficient and awarding to Pollard the preference right of entry.

The affidavit of contest was undoubtedly sufficient as held by your office, and the appellant, Frederick Kruger, does not dispute the correctness of your office decision on that point, but alleges that your office erred:

"1. In holding that the application of George D. Pollard to contest the entry of John Rethke was made prior to the application of Frederick

Kruger to make timber-culture entry without first ordering a hearing to determine the priority of right as between them, and giving said Kruger an opportunity to show that in fact his application was made previous to that of said Pollard."

On the face of the record, Pollard's application to contest and make entry were prior to the timber-culture application of Kruger, the former being marked filed May 13, 1887, and the latter four days thereafter, on the 17th of said month. Your office decision simply awards Pollard the preference right of entry and no allusion is made therein to Kruger's application to enter or claim of priority, and he does not allege and the record does not show, that said claim of priority was in any way brought to the attention of your office, or ever asserted except on the present appeal. There being no claim of priority on the part of Kruger before your office, there was no occasion to order a hearing in reference thereto, and no error in awarding Pollard the preference right of entry.

The appellant, in specifying the grounds upon which he bases his claim of priority, alleges further:

"2. That his timber-culture entry should have been made previous to May 13, 1887 (the date of Pollard's contest) as he forwarded a proper application to enter to the land office at Watertown before that time, but the same was returned to him for an immaterial correction, which being made, the entry was allowed by the local officers without any notice to him of the intervening claim of Pollard-by reason of which he lost the opportunity to appeal from the rejection of his first application to enter."

"3. That there is an error in the date of filing the application of Pollard to contest said tract; that in fact said contest was not filed until after the entry of Kruger had been allowed to the tract."

The appellant prays in conclusion that the decision of your office be reversed and a hearing ordered to determine the question of priority as between himself and the contestant.

The above paragraphs numbered 2 and 3 set up matters which do not appear to have been considered by your office, or in any way brought to its attention on the rendition of said decision.

There was no error in said decision on the facts before your office as disclosed by the record. In such a case, where new matter or matter not previously presented is relied upon for setting a decision aside, as a general rule the proper and better practice would seem to be (in consonauce with that obtaining in courts of law), to bring such matter in the first instance before the tribunal rendering the decision by a motion for review or reconsideration. Rule 76 of Practice provides for the allowance of such motions "in accordance with legal principles applica ble to new trials at law," and the present case falls within the purview of that rule. Of course, if the matter relied on has arisen or been discovered after the case has been removed from your office and while it is pending on appeal before this Department, it must then of necessity