articles of incorporation and maps of definite location of the Union River Logging Railroad Company.

It will be seen from the papers herewith submitted, that this company was incorporated, as before stated, in 1883, and that five miles of road was constructed, along which the timber trespass alleged was committed; that no effort was made by the company from 1883, to 1889, to secure the right of way, and that the sole object of the road as originally incorporated was for the purpose of building, equipping, running, maintaining and operating a railroad for the transportation of saw logs, piles and other timber, and wood and lumber, and it was not then contemplated that it should be used for the purpose of common carriers; that the company did not apply for the benefits of the act of March 3, 1875, after filing with the Secretary of the Territory the supplemental articles of incorporation, until January 1889, when they filed said articles in the Department for the purpose of securing the benefit of said act of March 3, 1875, said company having then changed hands, and was then, and is now, owned by the Puget Mill Company, the pres ent officers being, William Walker, president, E. G. Ames, secretary, and D. B. Jackson, superintendent.

From the application of said parties, and the papers filed therewith there was nothing to indicate that the company was not entitled to the benefits of said act, but in the affidavit of Edwin C. Bemis, filed with the report of the special agent, he states:

I am satisfied that said road, from the route and contemplated terminus of the same, and the character of the country through which it passes and is intended to pass, is only being constructed for the purpose of personal and private gain, viz: The transportation of logs, timber and wood, and that it will never be used for transportation of passengers and general freight, and that said road as soon as the timber in that locality is cut and removed to the mills or tide water said road will be abandoned, as the scarcely settled country and small settlement through which it passes and small village which it will reach will not justify the maintenance or operation of any kind of a railroad. I do not believe that said road is being constructed with a view of operating it as a common carrier, or for the benefit of the general public, but simply for private gain, and as a means of transporting the timber in that locality (which is mostly owned by the company that is constructing said road) to the mills or tide water.

This is corroborated by other witnesses, whose affidavits are herewith submitted.

In view of this allegation, I respectfully request an opinion as to whether the Department still retains jurisdiction for the purpose of making investigation as to the purpose and object of said incorporation, and of canceling and revoking its order, if it should appear that said approval was improperly granted, and if you should be of the opinion that this Department has no longer jurisdiction in the premises, I then request that suit be brought for the purpose of revoking and canceling said approval, upon the ground that the purpose and object of this road is not such as is contemplated by the act of March 3, 1875, granting the right of way over the public lands to railroads, if in your judgment such suit can be maintained.

RAILROAD GRANT-ACT OF FEBRUARY 8, 1887.

VICTORINE v. NEW ORLEANS AND PAC. R. R. Co.

By the terms of section 2, act of February 8, 1887, lands occupied by actual settlers at the date of the definite location of this road, and still remaining in their possession, are held to be excepted from the grant.

The fact that the land covered by such occupancy was at the date of settlement included within a grant for another company, will not operate to deprive the settler of the benefit of said act, where such grant was subsequently forfeited.

Secretary Noble to Commissioner Stockslager, March 30, 1889.

I have considered the case of John B. Victorine v. the New Orleans Pacific Railroad Company, on appeal by the latter from your office decisions of January 23, and February 28, 1888, holding for cancellation the claim of said railroad company for the SE. 1 of Sec. 7, T. 4 S., R. 1 E., La. M., New Orleans land district.

The tract is within the twenty mile granted limits of the grant by act of March 3, 1871, to the New Orleans, Baton Rouge and Vicksburg, now New Orleans Pacific Railroad Company, and was withdrawn November 29, 1871, and October 15, 1883. It was contained in a list of the company filed December 28, 1883.

Victorine alleged in his application to make homestead entry, that he had settled upon said land in January, 1863, and had remained thereon continuously ever since.

Your office, by letter "F" of March 19, 1887, ordered a hearing to determine whether Victorine had made settlement upon the tract as alleged, and whether he was still in possession of the same March 19, 1883, the date of the definite location of the railroad, and, if it is still in his possession.

After due notice, such hearing was had, and the local officers found in favor of said Victorine. Your office, by letter "F" of January, 1888, affirmed the conclusion of the local officers, and rejected the company's claim for said land, and on February 28, 1888, your office, by letter "F," denied a motion for review, filed by said railroad company.

The evidence shows conclusively, that residence had been established by Victorine in 1863 and continuously maintained as alleged, and, indeed, the railroad company made no effort to deny this, and their only assignment of error is, that you erred "In holding that Sec. 2, act February 8, 1887, applies to the tract in controversy."

The act of February 8, 1887 (24 Stat., 391), forfeited part of the lands granted to the New Orleans, Baton Rouge and Vicksburg Railroad Company by the act of March 3, 1871, and confirms the title of the New Orleans Pacific Railroad Company to the remainder.

In section two of said act it is provided:

That all said lands occupied by actual settlers at the date of the definite location of said road, and still remaining in their possession, or in possession of their heirs or assigns, shall be held and deemed excepted from said grant, and shall be subject to entry under the public land laws of the United States.

But in a brief filed in another case, counsel for said railroad company argues that the tract claimed by Victorine was in 1863, the date of his settlement, withdrawn for the "Opelousas " railroad.

By this is doubtless meant the railroad from New Orleans by Opelousas, to the State line of Texas, to which a grant of lands was made June 3, 1856 (11 Stat., 18); but the land in controversy is situated in the part of said grant which was forfeited by act of July 14, 1870 (16 Stat., 277), and if Victorine had established his residence thereon immediately after said forfeiture there can be no doubt but he would be of the class coming within the proviso of section two of the act of February 8, 1887, and the fact that he was already living on the tract when the forfeiture was declared would certainly not give him any less right under said act than would be given to a new settler.

As the settlement of Victorine was made in 1863, long prior to the definite location, and his possession and occupancy has ever since been continuous, it follows that your decision is correct, and the same is accordingly affirmed.

RAILROAD GRANT-CONFLICTING HOMESTEAD CLAIM.

LAITY v. NORTHERN PACIFIC R. R. Co.

The allowance of a homestead entry for land included within the existing entry of another is irregular; but on the cancellation of the prior entry, the one remaining of record is prima facie valid, and sufficient to except the land covered thereby from withdrawal on general route.

Land covered by settlement rights, at the date of definite location, is excepted from the operation of the grant made for the benefit of this company.

Secretary Noble to Commissioner Stockslager, April 1, 1889.

On November 7, 1870, Eliza J. Stocking, now Laity, made homestead entry for the E. of SW. 4, N. 1 of SE.4, Sec. 11, T. 15 N., R. 3 W., Olympia, now Vancouver, land district, Washington Territory.

This entry was canceled by your office letter of April 19, 1872, for conflict with the grant to the Northern Pacific Railroad Company. On February 13, 1886, Eliza J. Laity, nee Stocking, filed in the local office an application to have her said entry re-instated.

On November 5, 1887, your office rejected the claim of the said company to the land involved, and directed that in the absence of appeal Laity's entry should be re-instated. From this decision the company appeals here.

The tract in question is within the limits of withdrawal ordered upon the map of general route of the company's road, filed August 13, 1870, . and also within the limits of the grant as designated by the map showing the definite location of said road opposite this land, filed September 13, 1873. Said land was also embraced in homestead entry, No. 501, made by Henry M. Gooddell, on February 9, 1865, and canceled Feb

ruary 18, 1868. It was also covered by homestead entry, No. 661, made by Lewis F. Warren, on August 1, 1867, which entry was canceled October 4, 1870.

Laity's application was based upon her accompanying affidavit, wherein she averred that when she made her said entry i. e,, November 7, 1870, she was advised by the register that the land was subject thereto; that at that time she was a widow, with three children; that she had previously bought the improvements of said Warren; that she built a house on the land, in which she lived continuously from January, 1871, until the fall of 1884; that she fenced the entire tract, set out and cul. tivated an orchard, "built a hen house and root house," and during the five years immediately succeeding the date of her entry expended upon the land not less than eight hundred dollars; that in the fall or winter of 1875, she offered to make final proof, which was refused, her entry having been canceled, and that she married John Laity in the fall of 1876, i. e., six years after making her said entry.

It is claimed by the company that your office erred in holding that "the entry of Warren excepted the tract in dispute from the operation of the withdrawal on general route, filed August 13, 1870."

Counsel insist that said entry having been made before the cancellation of the Gooddell entry, "was prima facie illegal and void, and hence did not affect said land or the withdrawal thereof;" that the Gooddell entry having been canceled before said withdrawal, the land then passed by the grant, and the subsequent entry by the applicant was illegal.

I am not favorably impressed with this contention. Although the Warren entry (made in the presence of the existing entry of Gooddell) was irregularly allowed, still the same, after the said prior entry had been canceled, remained of record, and was at the date of said withdrawal prima facie valid. It can not, therefore, be said that the land was then free from "pre-emption or other claims or rights," the condition in which it must have been in order to have passed by the grant to the appellant. Moreover, in the case of the Northern Pacific Railroad v. Bowman (7 L. D., 238), the Department, upon the authority of Newhall v. Sanger (92 U. S., 76), and Kansas Pacific R. R. v. Dunmeyer (113 U. S., 629), held that any question as to the lawfulness or validity of such claim is immaterial.

I therefore concur in the conclusion reached by your office, that the land was excepted from the operation of the said withdrawal, and that it was subject to the applicant's entry, when the same was made.

The record shows the land to have been at the date of definite location subject to the applicant's settlement rights. Consequently, it could not at that time be affected by the grant. Northern Pacific R. R. v Evans (7 L. D., 131).

It appears that the applicant had, in the fall of 1875, when she offered to make proof, as stated, complied with the homestead law, and that she was then qualified to make entry thereunder. Her said entry was,

therefore, erroneously canceled. Her application to have the same reinstated should be allowed, and she should be permitted to submit proof showing compliance with the law at the time when she first of fered to make the same, i. e., in the fall of 1875.

Your decision is affirmed.

STATE SELECTION-ACT OF JUNE 9, 1880.

STATE OF FLORIDA.

Under the act of June 9, 1880, the right of the State to select indemnity is confined to vacant, unappropriated public lands.”

66

Secretary Noble to Commissioner Stockslager, April 1, 1889.

I have before me the appeal of the State of Florida from your decis ion of January 28, 1888, holding for cancellation list No. 9 of selections (under special indemnity certificate No. 1), filed May 26, 1886, for conflict with Helena M. Chase's pre-emption cash entry, No. 12049, made July 25, 1887, under declaratory statement filed June 1, 1886, for the E. SW. and N. 1, SE. 1, of section 2, T. 2 S., R. 27 E., Gainesville district, Florida.

The State claims under the act of June 9, 1880, (21 Stat., 171), which provided for the selection, as indemnity for certain relinquished lands, of "vacant, unappropriated public land of the United States in Florida."

The proofs show that at the date of the selection in this case the tracts in question were not "vacant, unappropriated public lands," the settlement, claim and improvements of Helena N. Chase having before that date attached or been placed upon the land-Chase's entry must unquestionably prevail.

Your said decision is accordingly affirmed.

LROA

GRANT-CONFLICTING PRE-EMPTION CLAIM.

NORTHERN PAC. R. R. Co. ET AL. v. GJUVE.

An unexpired pre-emption filing of record at date of definite location, raises a conclusive presumption as to the existence of the claim, and is sufficient to except the land covered thereby from the grant to the Northern Pacific.

Though under the grant to the St. Paul, Minneapolis, and Manitoba Company, the existence of such a 66 claim," without a "right," might not except the land covered thereby, it would however raise a presumption of right, which in the absence of proof would be conclusive.

Secretary Noble to Commissioner Stockslager, April 1, 1889.

I have before me the appeals of the Northern Pacific Railroad Company and the St. Paul, Minneapolis and Manitoba Railway Company (St. Vincent Extension) from your office decision of February 2, 1887,