That decision was adhered to upon motion for review August 8, 1895 (21 L. D., 90), but it was overruled in Brady v. Williams, December 23, 1896 (23 L. D., 533; 25 id., 55).

There were quite a number of cases involving the identical question raised in Cagle r. Mendenhall and Brady r. Williams, and the others have been disposed of according to the decision in the latter case. Of those who made the run from the Otoe and Missouria Indian reservation side and effected a prior settlement, Cagle is the only one who has not been awarded the benefits thereof where the claim was otherwise free from objection.

The finding of your office and of the local office was that Cagle was the prior settler. The testimony taken at the hearing has been re-examined and it is found that it amply sustains these concurring decisions.

Cagle admitted having made the run from the Otoe and Missouria side, and the ruling of the Department in his case was that this was unlawful. That ruling was not based upon any controverted question of fact, but solely upon what was subsequently and is now held to have been a misinterpretation of the law and of the President's proclamation opening the lands to settlement.

The parties to the present controversy and the subject matter are the same as at the time of the original decision. The land has not been patented and the legal title is still in the government.

This case was advanced upon the docket both in your office and in the Department, in order that an early decision might be had upon a question of law, which at that time was new and affected many cases pending in the land department. The case was advanced, not upon the request of Cagle, but because it was deemed advisable by your office and the Department that some one of the many cases presenting that question should be selected as a test case, advanced to an early decision, and made a precedent by which to determine the other cases. As before stated, Brady v. Williams and the other cases involv ing that question were not disposed of according to the ruling in Cagle v. Mendenhall but were disposed of according to a decision expressly overruling that case. If Cagle r. Mendenhall had not been thus advanced, but had been permitted to keep its regular place upon the docket, in all probability the ruling therein would have been exactly the reverse of that which was actually made. That decision was not acquiesced in by those interested in the question there discussed, but remained a subject of contention in proceedings in the land department. Although Cagle's motion for review was denied, he did not accept the ruling of the Department but, it appears, has continued to reside upon the land, and has, in the local courts and otherwise, attempted to continue the assertion of this claim thereto. Mendenhall has also resided upon the land, has been in possession of the greater portion thereof, and has always resisted the claim of Cagle, but whatever has been done by either

Cagle or Mendenhall has been done with full knowledge of the continued assertion of the claim of the other.

The question which is now presented is whether the law which has been applied to all others similarly situated shall be also applied to Cagle and Mendenhall, or whether as to them the original decision in their case shall control the disposition of the land in controversy notwithstanding that decision involves a manifest misapplication of the law and the President's proclamation. As an incident to this is the further question whether, the title to the land still remaining in the government, the ruling of one Secretary can be reviewed and reversed by a succeeding Secretary. The latter question was carefully considered and discussed at length in Parcher v. Gillen (26 L. D., 34), where, in conclusion, it was said:

The true rule drawn from an examination of all of the authorities is that the jurisdiction of the land department ceases where the jurisdiction of the courts commence, viz: when the legal title passes, and that there is no hiatus between the termination of the one and the beginning of the other. Under this rule the land will always be within a jurisdiction which can administer the law and protect both public and private rights.

The office of the Secretary of the Interior is a continuing one. Its incumbents come and go but the office remains. The powers and duties of the office are impersonal, and operate uniformly at all times and upon all controversies without reference to who may be exercising those powers or performing those duties. A change in the person holding the office does not authorize, and should not invite, a review or reversal of prior rulings or decisions; and neither does such change prevent or defeat a review or reversal in any instance where the Secretary making the ruling or rendering the decision, if still in office, would be in duty bound to review and reverse his own act. Administrative reasons as well as the principles of common justice require that a secretary should not disturb or reverse prior rulings or decisions, except where it is affirmatively shown that manifest injustice has been done or the law clearly misapplied; but this is equally true of his own rulings and decisions, and is not limited to those of his predecessor.

So long as the legal title remains in the government the Secretary of the Interior, whoever he may be, is charged with the duty of seeing that the land is disposed of only according to law. The issuance of a patent is the final act and decision in that disposition and with it and not before does the supervisory power and duty of the Secretary cease.

In Williams v. United States (138 U. S., 514-524), the court said:

It is obvious, it is common knowledge, that in the administration of such large and varied interests as are intrusted to the Land Department, matters not foreseen, equities not anticipated, and which are therefore not provided for by express statute, may sometimes arise, and, therefore, that the Secretary of the Interior is given that superintending and supervising power which will enable him, in the face of these unexpected contingencies, to do justice.

In Osborn et al. v. Knight (23 L. D., 216), it was held (syllabus):

The doctrine of res judicata will not prevent departmental action where such course is the only one by which substantial justice can be secured, and the subject matter remains within the jurisdiction of the Department.

In the same connection, see Gage v. Atwater (21 L. D., 211); Moores v. Sommer (23 L. D., 514); Mullen v. Porter (25 L. D., 444) and Seixas v. Glazier (26 L. D., 49).

In common with others, among whom was Mendenhall, Cagle lawfully participated in the race for homestead claims on the day of the opening and by reason of his prior settlement obtained the first and better right to the land in question. Without fault upon his part the Department, by its original and erroneous ruling herein, has unjustly deprived him of that right. The original parties are before the Department and the subject-matter is still within its jurisdiction. Cagle is entitled to have the same law applied to him which has been and is being applied to others similarly situated. He has not acquiesced in the erroneous ruling but has been vigilant in the assertion of his claim. The facts of the case call for the exercise of the supervisory authority of the Secretary and the restitution of the right which was wrongfully taken from Cagle by the decision complained of.

The entry of Mendenhall will be canceled, and Cagle will be permitted to make homestead entry of the land in dispute.

Attention is called to the fact that when Haskins relinquished his entry of the tract in question there were then pending against that entry two contests, each based upon alleged prior settlement; one by Mendenhall, and the other by Cagle. Upon the filing of Haskins' relinquishment the local officers permitted Mendenhall to make entry at once. This was contrary to established rulings. Before an entry by either of the contestants was allowed a hearing should have been had to determine which had the prior and better right. A hearing was actually had after the entry by Mendenhall and this hearing resulted in Cagle's favor, so that the error of the local office in permitting an entry by one of the contestants before it was determined which was entitled to such entry, may have been without prejudicial effect.

Mendenhall has filed a motion for rehearing on the ground of newly discovered evidence, and presents in support thereof several affidavits. In opposition thereto Cagle presents the affidavits of eight persons and also a certified copy of the testimony given in another case by some of the witnesses whose affidavits are presented by Mendenhall. In this other case these witnesses testified about the same subject-matter and what was then said by them does not sustain their present affidavits. An examination of all that is presented in that connection demonstrates that the showing made does not warrant an order for a rehearing and the motion therefor is denied.

RIGHT OF WAY-STATION GROUND-ADVERSE CLAIM.

ST. PAUL, MINNEAPOLIS AND MANITOBA RY. Co.

An intervening entry should not defeat the approval of a station plat, if the land was open to appropriation under the right of way act at the date of filing said plat.

Secretary Bliss to the Commissioner of the General Land Office, February (W. V. D.) 9, 1898.

(F. W. C.)

With your office letter "F" of April 22, 1897, was transmitted an appeal by the St. Paul, Minneapolis and Manitoba Railway Company from the action taken in your office letter of October 5, 1896, rejecting its application, made under the provisions of the act of March 3, 1875 (18 Stat., 482), for right of way for station grounds at Camden, in sections 3 and 4, T. 29 N., R. 44 E., Spokane land district, Washington. The company's plat was filed in the local office June 29, 1896. On July 9th following, Matthew B. Lyons made homestead entry for lot 1, the S. of the NE. and the NW. of the SE. of Sec. 4, T. 29 N., R. 44 E., and it was on account of said entry that the company's plat was rejected, it being held in your office letter that

none of the tracts embraced in the application for station grounds are vacant public lands, and that said application is not subject to approval by the Department.

As originally presented, the company claimed a right of way across section 3. Said section is within the primary limits of the grant for the Northern Pacific Railroad Company, and for that reason the application was rejected as to said section 3.

The company has amended its plat waiving any claim to the portion in section 3, so that the only question submitted or raised by the appeal is as to the approval of the plat for the portion shown in section 4.

As before stated, the tract in section 4 was vacant at the time the company's plat was filed, and the question arises: Can it be deprived of its right to have the same approved, if satisfactory, by the subsequent entry of the land covered by the plat before said plat is approved by the Secretary of the Interior and noted upon the records in the land office?

The fourth section of the act of March 3, 1875 (supra), under which the present application is filed, provides:

That any railroad company desiring to secure the benefits of this act, shall, within twelve months after the location of any section of twenty miles of its road, if the same be upon surveyed lands, and, if upon unsurveyed lands, within twelve months after the survey thereof by the United States, file with the register of the land office for the district where such land is located a profile of its road; and upon approval thereof by the Secretary of the Interior the same shall be noted upon the plats in said office; and thereafter all such lands over which such right of way shall pass shall be disposed of subject to such right of way: Provided, That if any section of said road shall not be completed within five years after the location of said section, the rights herein granted shall be forfeited as to any such uncompleted section of said road.

In its appeal the company alleges that "the station grounds in question have been in the occupation and possession of the company since their selection for that purpose."

Where a company has complied with the law by filing its articles of incorporation and due proofs of organization, it is clearly entitled to a grant of the right of way over the public lands under the act of March 3, 1875 (supra). To secure this right, however, it must file maps of the location of its road and plats of necessary station grounds.

It is true, the law makes the maps and plats filed by the companies subject to approval by the Secretary of the Interior, and it would seem that, until approved, no right is vested in the company thereunder.

After filing the maps and plats as required by the statute, the company has done every act necessary to be performed on its part.

Much time must necessarily elapse before these maps can go through the regular course of examination and be presented to the Secretary of the Interior for his approval.

Is the company's right in jeopardy, although it may be in the actual use of the land, during this period, and can its right be made to depend upon the action of others, as would be the result of your office decision?

It is not believed that such was the intention of Congress, but rather that in determining whether a map should be approved the condition existing at the time of its filing must control.

As no other objection appears to the approval of this plat than the fact that an entry has been permitted to be made of the land covered by the claimed right of way since the filing of the map, for the reasons herein given the plat is approved, subject to any valid adverse right, and is herewith returned, with accompanying papers, for proper action.

SWAMP LANDS—ADJUSTMENT OF GRANT CONFIRMATION.

STATE OF MICHIGAN v. LISIZON ET AL.

Where the field notes of the survey of a township have been made the basis of a final adjustment of the swamp grant, and the State has accepted a patent thereunder, it is estopped, while holding the lands so conveyed, from claiming additional tracts under a resurvey which also shows that a portion of the lands patented were not of the character granted.

The act of March 3, 1857, did not confirm swamp lands to the State where the grant had been adjusted as to any particular township, or townships, and such adjustment had become final and conclusive by the acceptance, on the part of the State, of a patent for the lands covered by such adjustment.

Secretary Bliss to the Commissioner of the General Land Office, February (W. V. D.) 11, 1898.

(E. F. B.)

This appeal is taken by the State of Michigan from the decision of your office of March 25, 1887, rejecting its claim to certain lands in township 34 N., R. 5 E., and 35 N., R. 4 E., Detroit, Michigan, under