In the case of the Northern Pacific Railroad Company, considered by this Department November 13, 1895 (21 L. D., 412), it was held that (syllabus):

The right of said company to form a connection with Lake Superior as its eastern terminus could be exercised either through actual construction of its own road, or through a-sociation or consolidation with some other company, and by the latter course said company, through an apparent consolidation with the Lake Superior and Mississippi railroad, from Thomson's Junction, in Minnesota, to Duluth in the same State, secured such terminus, and thereby exhausted its right to fix the eastern terminal point of its road, by construction of its own line, if such consolidation was not in fact effected. But if such consolidation was not such an association or confederation as contemplated by the granting act, then the eastern terminus of the grant is at Superior City, Wisconsin, the first point at which said company, by its own road, reached Lake Superior.

It appearing that lands east of Superior City have been made the basis of indemnity selections in North Dakota, and that the action of the Department hitherto has given color to such claim, it is hereby directed that the company be allowed sixty days from notice hereof within which to specify a new basis for any selections avoided by this decision.

Acting hereunder the company assigned new bases November 26, 1895, the sufficiency of which is not attacked.

It is further urged that the losses as originally assigned were not proper bases for the reason that, if the lands were granted to the Omaha company under a prior grant, the Northern Pacific Railroad Company would not be entitled to indemnity therefor.

In the case of Bardon v. Northern Pacific Railroad Company, 145 U. S., 538, it is stated, in referring to the grant for the Northern Pacific Railroad Company, that

the statute also says that whenever, prior to the definite location of the route of the road, and of course prior to the grant made, any of the lands which would otherwise fall within have been granted, sold, reserved, occupied by homestead settlers, or pre-empted or otherwise disposed of, other lands are to be selected in lieu thereof, etc. This fully answers the last contention of counsel in the petition and, as before stated, the same is denied.

In this connection I must add that I cannot approve of the action taken in these cases, holding for cancellation, without first affording the entryman an opportunity to show cause, any entry allowed by the local officers, and in future you will apprise the entryman of any objec tions that may appear to the recognition of his entry and first afford him an opportunity to show cause, before action is taken looking to the cancellation of his entry.

RAILROAD GRANT-SETTLEMENT RIGHT-SELECTION.

NORTHERN PACIFIC R. R. Co. v. LYNCH.

When settlement and occupancy alone, at the time rights under a railroad grant attach, are relied upon to except the land from such grant, it must affirmatively appear that the party in possession had the right, at that time, to assert a claim to the land in question under the settlement laws.

Secretary Smith to the Commissioner of the General Land Office, May (W. A. L.) 23, 1896. (C. W. P.)

With your office letter of August 6, 1895, you transmitted the case of the Northern Pacific Railroad Company . Alexander H. Lynch, involving the NE. of section 35, township 16 N., range 44 E., Walla Walla land district, Washington.

Said tract is within the indemnity limits of said road, and was selected on account of the grant December 17, 1883.

Lynch applied to make homestead entry of the land on October 27, 1887, alleging settlement about August 6, 1884.

The company filed a protest against said application.

A hearing was had. The local officers decided in favor of Lynch. The company appealed. Your office affirmed the decision of the local officers.

The company appeals to the Department.

The testimony shows that one William H. Evett went upon the land in the spring of 1881, and erected a foundation for a house; that in June, 1881, he let his brother, James F. Evett, have his interest in the tract, who did some fencing and planted out a garden and some shrub. bery; that he built a house, a barn sixteen by thirty feet, with one shed twelve feet long and one sixteen feet long, and he moved upon the land in the fall of 1881, and resided thereon continuously until 1884, when he sold his claim, his possessory right thereto, to Alexander H. Lynch; that Lynch established his actual residence on the land in the fall of 1884, and the same has been continuous; that he built an addition to the house twelve by fourteen feet wide and eighteen feet long, broke eighty-five acres, planted out an orchard of one hundred trees, and placed the whole tract under fence, and that his improvements are worth about $1,200.00.

The decisions of the Department hold that, within the indemnity limits, the Northern Pacific Railroad Company has not such claim as will bar the acquirement of a settlement right, until it has made selection in the manner prescribed. The company cannot, therefore, be held to have had such a claim as would bar the settlement right of James F. Evett, if he was duly qualified to enter the tract under the settlement laws.

When settlement and occupancy alone, at the time the rights under a railroad grant attach, are relied upon to except the land from such 10332-VOL 22- -39

grant, it must affirmatively appear that the party in possession had the right at that time to assert a claim to the land in question, under the settlement laws (Northern Pacific R. R. Co. v. Stark, 15 L. D., 53; Irvine v. Northern Pacific R. R. Co., 14 L. D., 362). The testimony does not show that James F. Evett was qualified to make an entry under any of the settlement laws.

The present claimant (Alexander H. Lynch) should be notified that he will be allowed to submit supplemental proof as to whether said Evett had at the date of the company's selection the qualification to enter the land under the settlement laws, after due notice and service upon the company (Northern Pacific R. R. Co. v. McCrimmon, 12 L. D., 554).

Your office decision is modified accordingly.

RAILROAD GRANT-INDEMNITY SELECTIONS-DESIGNATION OF LOSS.

ST. PAUL, MINNEAPOLIS AND MANITOBA RY. Co. v. ROWAN ET AL. A list of indemnity selections resting on a designation of losses in bulk will not be regarded as a bar to the disposition of the lands so selected; nor will a subsequent specific designation of losses validate such list if the company is not entitled to make said selections on the losses so assigned.

Secretary Smith to the Commissioner of the General Land Office, May (F. W. C.)

23, 1896.

I have considered the appeal by the St. Paul, Minneapolis and Manitoba Railway Company from your office decision of November 20, 1895, holding for cancellation its list of indemnity selections covering certain tracts selected along its main line embraced in the application of Luke L. Rowan and seventeen others. Said lands are within the St. Cloud land district, Minnesota.

It appears from your office decision that these lands are within the twenty mile or indemnity limits along the main line of said road and were included in list of selections filed April 22, 1885 (list No. 10), for which indemnity was designated in bulk. The indemnity withdrawal made on account of the main line was revoked by departmental order of May 22, 1891 (12 L. D., 549).

Your office decision held the company's selection for cancellation because there had been no specific designation of the losses tract for tract as required under the order issued by your office in obedience to the direction contained in departmental decision in the case of La Bar v. Northern Pacific R. R. Co. (17 L. D., 406).

In its appeal the company urged that the matter was one of fact and that your office erred in holding that the company had failed to file a

specific designation of its lost lands, tract for tract, on account of said selection list No. 10. This matter is made the subject of a special report by your office letter of May 12, 1896, in which it is stated as follows:

The company in its appeal alleges that on August 15, 1891, it transmitted to this office a copy of said list accompanied with a specific designation tract for tract of the lands within its place limits in lieu of which said lands were selected and claimed; such selection being in strict accordance with the regulations of the Department. And you direct that a careful examination of the matter be made by this office of the facts as to whether such list was received here on August 15, 1891, or at any other time, and report to your office.

In answer thereto, I have the honor to report that, after diligent search, rearranged list No. 10, with others, claimed by the company to have been transmitted with letter of August 15, 1891, was discovered in this office.

This list was received at this office August 19, 1891, and contains a designation of lost lands tract for tract as a basis for the selection of April 22, 1885. This latter basis is for lands along the St. Vincent Extension, whereas the selected lands are along the main line of the St. Paul, Minneapolis and Manitoba road.

The designated basis of April 22, 1885, which in bulk equaled the selected lands, was for losses along the main line. It will thus be seen that the company substituted an entirely new basis in its rearranged list No. 10.

In the case of St. Paul, Minneapolis and Manitoba Railway Company v. Hastings and Dakota Railway Company (13 L. D., 440), it was held that the specification of losses on the line of the St. Vincent Extension can not be accepted as a basis for selections on the main line of St. Paul, Minneapolis, and Manitoba Railway Company, and in the case of La Bar v. Northern Pacific Railroad Company (supra), you were directed to

call upon all railroad companies having pending indemnity selections to revise their lists within six months from the date of your order, so that a proper basis will be shown for each and all lands now claimed as indemnity, the same to be arranged tract for tract in accordance with departmental requirements, and that all tracts formerly claimed for which a particular basis has not been assigned in the mauner prescribed, at the expiration of said six months, be disposed of under the terms of the orders restoring indemnity lands without regard to such previous claim.

The designation made by the company August 15, 1891, on account of the selections along the main line being of lands lost to the grant along the St. Vincent Extension of said road, can avail the company nothing, and while in your report it is admitted that your office decision was in error in holding that the company had never filed a list of losses rearranged tract for tract on account of said selection list No. 10, yet the action taken in your office decision must be affirmed, for the reason that the designation as made was not a proper one, and the land covered by the applications of Luke L. Rowan and others will, in accordance with the direction given in the La Bar case, be disposed of without regard to the selection list of April 22, 1885.

APPLICATION-VACANCY IN LOCAL OFFICE-SETTLEMENT.

HILLEBRAND v. SMITH.

Applications to enter received during a vacancy in the office of the register must be treated as simultaneous, on the resumption of business in the local office.

In the case of simultaneous applications to enter, where one of the applicants has settled upon and improved the land, and the other has not, the priority of right should be accorded to the actual settler.

Secretary Smith to the Commissioner of the General Land Office, May 23, 1896. (F. W. C.)

I have considered the appeal by C. S. Hillebrand from your office decision of February 14, 1895, rejecting his several applications to make homestead entry of the NW. of Sec. 10, T. 15 N., R. 3 W., Guthrie land district, Oklahoma, for conflict with the prior application by R. V. Smith.

This tract was formerly covered by the homestead entry of Chas. W. Coombs made April 26, 1889, commuted to cash entry August 22, 1893. Coombs's entry was contested and the case regularly prosecuted to this Department resulting in departmental decision of April 5, 1894, by which Coombs's entry was canceled for illegality, it being found that he had entered the territory of Oklahoma during the prohibited period. While the case was pending before this Department the contestants withdrew.

Prior to departmental decision of April 5, 1894, canceling Coombs's entry, to wit, on February 26, 1894, W. D. Lindsey, the former register at the office in Guthrie, died and his successor did not enter upon the discharge of his official duties until June 1, 1894. After the cancellation of Coombs's entry and prior to June 1, 1894, numerous applications were received at the local office to enter the tract formerly covered by Coombs's entry. Those material to the present controversy are as follows: Ralph V. Smith, April 7, 1894;

Chas. G. Hillebrand, April 13, 1894, and

Ralph V. Smith (2d application), May 21, 1894.

These several applications were not acted upon on account of the vacancy of the office of register, and on June 1, Smith renewed his application to make homestead entry accompanying the same with a new homestead affidavit. On the same date Hillebrand filed another application to make homestead entry of this land, which application, together with the petition by Smith, was suspended because of the several previous applications which were undisposed of.

On June 3, 1894, the local officers recommended that Smith's application received May 21, 1894, be accepted, holding that it was the first received after the cancellation of Coombs's entry and that the other applications should be rejected for conflict therewith. From this action Hillebrand appealed and Smith also appealed, urging that his rights should be held to be prior under his first application presented April 7, 1894.