of the State of Alabama, approved February 8, 1858, filed in your office its map of definite location on September 20, 1858. Having determined that said granting act provides for a grant for the benefit of the Coosa and Chattooga Railroad Company, it will be necessary to consider what effect must be given to the first and third sections of the granting act.

The first section of the act grants every alternate section of land, designated by odd numbers, for six sections in width on each side of certain railroads from points designated therein, and also the right to select indemnity for losses within the granted limits. It is further provided that:

The lands hereby granted for and on account of said roads, severally, shall be exclusively applied in the construction of that road, for and on account of which such lands are hereby granted, and shall be disposed of only as the work progresses, and the same shall be applied to no other purpose whatsoever.

The third section of the granting act provides, "that the said lands hereby granted to the said State shall be subject to the disposal of the Legislature thereof, for the purposes aforesaid, and no other."

The suggestion that the renewing act of April 10, 1869, can affect the rights of the other roads provided for in the granting act of 1856, is without force, for it did not pretend to declare any forfeiture against the other roads which had not been completed in time.

The supreme court of the United States in the case of Doe v. Larmore (116 U. S., 198), held, upon the authority of the St. Louis, Iron Mountain and Southern Railway Company v. McGee (115 U. S., 469), that said

Act of 1869 is to be treated as an extension of the time named in the original act for the completion of the road The completion of the road within the time fixed by the new act perfected the title of the company under the original grant, and this title inured, at once, to the benefit of Larmore.

Again, the claim of the appellant, that by the terms of the granting act the State of Alabama has the absolute and unrestricted power of disposal of all lands within the limits of the roads provided for in the granting act, is likewise untenable.

It was expressly provided in the joint resolution of the General Assembly of Alabama, conferring the grant for one of the roads desig nated in said act of 1856, upon the Wills Valley Railroad Company, of which the Alabama and Chattanooga Railroad Company is the suc

cessor,

That nothing in these joint resolutions contained, nor the passage and approval of the same first in point of time, shall be construed to give the road to which the land is hereby appropriated, any preference where its claims to lands come in conflict with the claims of any other road provided for in said act. See Acts of Alabama (1857 & 1858) p. 430-31.

The supreme court of Alabama in the case of Swan and Billups v. Lindsey (70 Alabama 521), upon a careful consideration of the legisla tion under the provisions of said acts, held that as soon as the line or route of the railroad was definitely fixed, the grant became one of specific

sections, the title to which passed out of the United States and into the State of Alabama; that it was not an indefeasible fee out of the United States, because the right was reserved, upon condition if broken to have the lands revert to the United States, upon proper proceedings being taken to that end; that was not an absolute conveyance or grant to the State in its own right as of fee, for the State took in trust to devote the proceeds or have them devoted in aid of the construction of the specified line of railroad" for the purposes aforesaid."

The court further held, that the act of 1856 and the renewing act of 1869 did not confer the right to sell all the lands granted as soon as the line of the railroad was definitely fixed; that one hundred and twenty sections included within a coterminous length of twenty miles might be sold without the performance of any condition precedent, and, beyond this, the State itself could not go nor could it confer on the railroad company power it did not itself possess.

It was further decided that the granting act constituted the State the administrator of its bounty, with limitations, it could not transcend, which restricted the State in the execution of the trust to the purposes expressed in the act of Congress. Those purposes, as we have seen, were to aid not one road, but several distinct and separate railroads diverging from a given point and with different termini. The State could not, by any legislative act, confer upon one railroad lands appropriated by Congress to aid in the building of another and different road. Until appropriate action shall have been taken to declare a forfeiture of the grant for the benefit of the railroads not constructed in time, the lands granted will not revert to the United States. Such was the ruling of the United States supreme court made in 1874, upon a similar grant, in the case of Schulenburg v. Harriman (21 Wall., 44), and it has from that time been uniformly followed by the courts and this Department.

Since there has been no forfeiture by Congress, or under its authority, of the lands granted by said act of 1856 to aid in the construction of the several roads designated therein, it follows, necessarily, that said granted lands are not subject to appropriation for any other purpose.

In the case of Barney et al. v. Winona and St. Peter Railroad Company (117 U. S., 228), the supreme court said:

In the construction of land grant acts, in aid of railroads, there is a well estab lished distinction observed between "granted lands" and "indemnity lands." The former are those falling within the limits specially designated and the title to which attaches when the lands are located by an approved and accepted survey of the line of the road, filed in the Land Department, as of the date of the act of Congress. The latter are those lands selected in lieu of parcels lost by previous disposition or reservation for other purposes, and the title to which accrues only from the time of their selection.

The supreme court, in the case of St. Paul Railroad v. Winona Railroad (112 U. S., 720), construing the act of Congress approved March 3, 1857, (11 Stat., 195), granting land to the Territory of Minnesota and the State of Alabama to aid in the construction of railroads, decided

that when grants are made for different roads by the same statute, priority of location gives no priority of right; that where the limits of the primary grants, which are settled by the location, conflict, as by crossing or lapping, the parties building the roads under those grants take the sections, within the conflicting limits of primary location, in equal undivided moieties without regard to priority of location of the line of the road, or priority of construction; that the rule with reference to conflicting indemnity limits is, that neither priority of grant, nor priority of location, nor priority of construction, gives priority of right, but priority of selection.

This doctrine was re-affirmed in the case of Sioux City Railroad v. Chicago Railway (117 U. S., 406).

So long as the grant in aid of the railroads provided in said act shall remain unforfeited, I am satisfied, both upon principle and authority, that the appellant company cannot be allowed to select, as indemnity, lands within the granted limits of the grant in aid of the other roads. The decision of your office must be and it is hereby affirmed.

TANNEHILL v. SHANNON.

Motion for review of departmental decision of April 17, 1888 (6 L. D., 626) denied by Secretary Vilas, January 10, 1889.

TIMBER CULTURE CONTEST-PRACTICE-REHEARING.

JEARDOE v. SHANNON.

The local officers may properly in contest cases inspect the land involved, but such action should only be taken after due notice to the parties, and before argument in the case is heard.

While a decision in a contested case should not be rendered upon the report of the register, based upon a personal inspection of the land, made without notice to the parties, and after the case was closed, such report may be properly treated as the basis for a rehearing.

Secretary Vilas to Commissioner Stockslager, January 10, 1889. The record in this case presents a motion by James Shannon for review and reconsideration of departmental decision rendered May 18, 1888, in the case of S. N. Jeardoe v. said Shannon, involving the latter's timber culture entry, made September 10, 1880, for the SW. Sec. 15, T. 105 N., R. 61 W., Mitchell, Dakota. On July 29, 1882, Shannon relinquished the SE. 4 of the quarter section named, because of conflict with a prior entry, and thereupon his entry was to that extent canceled The tract now in controversy, therefore, contains only one hundred and twenty acres.

The original record shows that, on February 6, 1885, S. N. Jeardoe instituted contest against said timber culture entry, then covering but three-fourths of a quarter section of land, charging that said Shannon "has not, during the third year after entry, nor up to the present time,

planted trees, seeds or cuttings on the first five acres; nor during the fourth year, or up to the present time, planted trees, seeds, or cuttings on the second five acres; nor cultivate any trees on either five acres up to the present time."

Upon these charges a hearing was had before the local officers, on May 11, 1885, at which both parties were present and offered testimony. A large amount of evidence, mostly conflicting in character, was submitted, and upon consideration thereof, the receiver, after an elaborate and exhaustive analysis of the same, found, substantially, that the contestant had failed to sustain his charges of contest; that claimant had broken and cultivated to crop seven and a half acres of bis claim and had planted the same to seeds and cuttings, as required by law, and that he had fulfilled the requirements of the law in cultivating and caring for the same; whereupon he recommended the dismissal of the contest, and that Shannon's entry be allowed to stand.

The register, in a lengthy opinion, based not upon the testimony taken at the hearing, but upon two personal inspections of the land in question, made by him, one prior and the other subsequent to the date of the trial, found for the contestant, and declared that the entry of Shannon should be canceled.

The record, accompanied by these dissenting opinions, was thereupon transmitted to your office, and upon consideration thereof, by office decision of July 9, 1886, it was held, in substance, that the requisite amount of breaking appears to have been done by claimant; an attempt has been made to plant tree seeds and cuttings, but there has not been, at any time, what could be called cultivation of the ground; that the trees planted entirely failed to grow, and the cuttings that are alive do not appear to be in a good condition, which state of things is no doubt the result of want of proper planting and cultivation; and thereupon said entry was held for cancellation.

The departmental decision, of which a reconsideration is asked, is a formal affirmance of said decision of your office.

In the register's letter of transmittal, dated September 8, 1885, he states that:

The claimant and his attorney well know, after my visit to this claim in April, that my opinion would be against them-the land showed for itself—and they determined, if possible, to discredit my statements by a great mass of false testimony. I called this matter to the receiver's attention, as I stated in the case of Tannehill v. Shannon, and urged him to visit the claim so he could also report. This he did not do.

to the affidavit of one the record in said case

He further called the attention of your office B. F. Bynum, accompanying his letter, and to of Tannehill v. Shannon, transmitted by letter of August 10, 1885. The register, in his opinion filed in the record, after describing the condition of the land as he found it upon the occasion of his first visit of inspection, further says:

Considering the fact that I have a clear and full understanding of the condition of this tract of land, and of the kind of cultivation put on it up to May 1, 1885, the

testimony of the claimant and his witnesses, in many particulars, is simply bold and reckless effrontery. The claimant's testimony on the trial was so full and clear, especially as to the number of cuttings, and the cultivation done on claim just before the trial, and as to the condition of the land-which the testimony of the contestant was exactly opposite-that I deemed a second visit to this land but just and fair to the parties and demanded by the rights of the government. May 17th, accompanied by Mr. B. F. Bynum, the gentleman who wrote the testimony, I went to this tract and for the second time closely izspected it.

In the affidavit of Bynum, above referred to, he swears, in effect, that he wrote the testimony taken in the case at the trial; that he visited the land in company with the register and the attorneys for the parties a short time before the trial, and made a thorough examination of said claim, and found the same in a wretched condition, covered with a thick growth of weeds and grass; that he went with the register to the land the second time, on the Sunday following the date of the trial, and reexamined it; that the cultivation of the same was a miserable sham and pretense, and would not be recognized as such by any good ordinary farmer; that he examined the claim thoroughly and only found here and there scattered cuttings, and part of them dead; that he had read the opinion of the register in the case and swears that he has described the condition of the tract as accurately as it is possible to describe the same, and that the testimony of claimant and his witnesses, in its material parts, is absolutely false.

The testimony in the case is voluminous and contradictory, but when considered aside from, and independent of said affidavit of Bynum and the register's opinion, which is nothing more nor less than a report on the condition of the claim, based upon his personal examination thereof, the weight of the evidence submitted is clearly and decidedly in favor of the claimant.

It does not appear from the record that the parties were notified by the register, that an inspection would be made by him after the hearing was closed; the parties were not present, and, in fact, the inference is, that no one but the register and said Bynum knew that this second inspection was ever contemplated, until after it was made.

It will be observed from the foregoing, that this case is in all material respects similar to the case of Tannehill v. Shannon, referred to by the register in his opinion and letter of transmittal, which was decided on appeal to this Department, April 17, 1888 (6 L. D., 626). That case came up from the same local office as this, and in each case the action of the register in making personal inspection of the land in controversy is substantially the same. In the former case the Department held that:

In the trial of a contest case the local officers act judicially, and while in certain cases they would be fully authorized to view the claims, if they deemed such action necessary, and for that purpose could adjourn the hearing and give notice to the parties of the time when they would make such inspection, yet they should not, after the case is closed, of their own motion, and without notice to the parties, inspect the ground and base their judgment upon the result of such inspection.