fifty cents per acre for the land taken, in addition to the fee and commissions on double minimum land provided by law; that under the act of August 15, 1894, each applicant to enter land in the Yankton reservation must pay for the land entered at the time of making his original entry fifty cents per acre, and at the time of making proof the further sum of three dollars and twenty-five cents per acre, in addition to the fees required by law. You called the attention of the agent for the State to the fact that homestead entries on the ceded portions of the great Sioux reservation are commuted under a proviso in section 6 of the act of March 3, 1891 (26 Stat., 1095), while homestead entries on the ceded portions of the Sisseton and Yankton reservations are commuted under the general law. You also invited his attention to the fact that under section 22 of the act of March 2, 1889 (25 Stat., 898), all payments made under said act for lands embraced in the ceded portion of the great Sioux reservation are covered into the Treasury as a special fund for the benefit of the Indians, while all moneys paid for lands on the ceded portions of the Sisseton and Yankton reservations. are covered into the Treasury as receipts from public lands.

You also informed said agent that the two dollars and fifty cents per acre for Sisseton and Wahpeton lands, whether paid on a commuted or final homestead entry, and the fifty cents per acre paid at the time of original homestead entry for Yankton lands, and the three dollars and twenty-five cents per acre required to be paid on such lands at the time of making proof, either final homestead or commuted, "are included in the same general fund upon which the five per cent of net proceeds due the State of South Dakota is computed."

The State filed an appeal.

The material contentions of the State are, that in commuted entries of public lands in the Sisseton and Yankton reservations the lands. have been disposed of for less than should have been charged for them; that in all cases where the land has been paid for before the expiration of five years, the entrymen should have been charged one dollar and twenty-five cents per acre, in addition to the two dollars and fifty cents per acre charged in the Sisseson and three dollars and seventy-five cents per acre in the Yankton reservations.

Under section 13 of the act of February 22, 1889 (25 Stat., 680), the State of South Dakota is entitled to five per cent of the proceeds of the sales of public lands lying within said State which may be sold by the United States since the admission of said State into the Union, after deducting all the expenses incident to the sale.

It clearly appears from your letter to the agent of the State that said State has received five per cent of the proceeds of all sales of public lands, made up to the present time, in the Sisseton and Yankton reservations, and that under the present practice it will continue to receive the same on sales hereafter made.

It appears that the practice of your office respecting the amounts to

be charged for public lands in the ceded portions of these reservations has been and is in strict conformity with the instructions approved by the Department governing the disposition of lands in said reservations to entrymen under the respective acts of Congress relating thereto.

A careful examination of said acts and departmental instructions fails to disclose any error on the part of the Department in the construction placed upon said acts at the time the instructions were approved, and therefore there is no reason for any change or modification of said instructions.

The action of your office in the premises, is therefore approved.

RAILROAD RIGHT OF WAY-VESTED RIGHT-INDIAN RESERVATION. SPOKANE AND PALOUSE RY. Co.

The grant of a railroad right of way across an Indian reservation, that has vested by reason of compliance with the conditions precedent, is not lost through failure to construct the road within the period specified (a condition subsequent), where no advantage of such failure has been taken by the government.

Assistant Attorney-General Van Devanter to the Secretary of the Interior, (F. W. C.)

February 21, 1898.

I am in receipt, through your reference of the 8th instant, of a letter from the Commissioner of Indian Affairs, dated January 6, 1898, enclosing letter dated December 21, 1897, from the United States Indian Agent at the Nez Perces agency, relative to the rights of the Spokane and Palouse Railway Company to, at this time, continue the construction of its railroad across the lands within the Nez Perces Indian reservation.

It appears that the right of way across said reservation was granted said railway company by act of Congress approved May 8, 1890 (26) Stat., 104). The third section of said act provides:

That it shall be the duty of the Secretary of the Interior to fix the amount of compensation to be paid the Indians for such right of way, and provide the time and manner for the payment thereof, and also to ascertain and fix the amount of compensation to be made individual members of the tribe for damages sustained by them by reason of the construction of said road; but no right of any kind shall vest in said railway company in or to any part of the right of way herein provided for until plats thereof, made upon actual survey for the definite location of such railroad, and including the points for station buildings, depots, machine-shops, side-tracks, turnouts, and water-stations, shall be filed with and approved by the Secretary of the Interior, which approval shall be made in writing and be open for the inspection of any party interested therein, and until the compensation aforesaid has been fixed and paid; and the surveys, construction, and operation of such railroad, including charges of transportation, shall be conducted with due regard for the rights of the Indians and in accordance with such rules and regulations as the Secretary of the Interior may make to carry out this provision: Provided, That the consent of the Indians to said right of way and compensation shall be obtained by said railroad company in such manner as the Secretary of the Interior shall prescribe before any right under this act shall accrue to said company.

From the letters referred to it appears that the route was surveyed and permanently established by the company during the year 1891; that the company

acquired the right of way over the route named by actual purchase on May 2, 1891, paying to the individual allottees along the said route, proportionately, the damages sustained by them, amounting to $3876.06, to the government for damages to the agency property the sum of $195.00, and the sum of $1414.00 to the Nez Perce tribe for passing through their tribal lands. It was also observed that the company agreed to move off the said right of way the building standing thereon now occupied as the agency office, replace with sufficient iron pipe the old mill flume to carry water for mill purposes-the old flume no longer belongs to the government as it was sold at public auction to a private individual-and agreed to give free and open access to this tribe to the tract of land reserved as a "boom" for the benefit of the Indians.

The road has not, to this date, been constructed across the reservation, but the agent reports that the company

contemplates the early extension of their road from the present terminus at Juliaetta, Idaho, to Lewiston, Idaho, a distance of about twenty-five miles. This extension should it be constructed as contemplated, will pass through twenty-four allotments, will pass about mid-way through the tract of land reserved for agency purposes, and through certain tracts formerly known as the tribal lands of the Nez Perce tribe.

This is the route established in 1891.

The fourth section of the act of May 8, 1890 (supra), provides:

That said company shall not assign or transfer or mortgage this right of way for any purpose whatever until said road shall be completed: Provided, That the company may mortgage said franchise, together with the rolling stock, for money to construct and complete said road: And provided further, That the right granted herein shall be lost and forfeited by said company unless the road is constructed and in running order across said reservation within two years from the passage of this act. The Indian agent states in his letter of December 21, 1897:

By reference to office letter, dated April 24, 1895, Land 17043-1895, I find that John Lane, Esq., special agent in charge of this agency, on that date, was advised that the Spokane and Palouse Railway Company, had forfeited and lost the right of way over this reservation granted it by the act of Congress of May 8, 1890, since it had failed to complete the road within the two years time specified in the act, and that since no renewal of the grant had been made by Congress, no recognition should, on that account, be given the company of the lost and forfeited right.

The matter is therefore referred to me for "opinion as to the right of the within named railway company to construct its line through the Nez Perce reservation."

From the above recitation, taken from the letters referred, it would appear that the conditions named in section three of the act of May 8, 1890 (supra), have been complied with and that consequently the grant of the right of way has vested.

The provision in section four relative to the construction of the road is clearly a condition subsequent, to be taken advantage of only by the grantor. In what manner this reserved right of the grantor must be asserted, depends upon the character of the grant.

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If it be a private grant, that right must be asserted by entry, or its equivalent; if the grant be a public one, it must be asserted by judicial proceedings, authorized by law, the equivalent of an inquest of office at common law, or there must be some legislative assertion of ownership of the property on account of a breach of the condition. Schulenberg r. Harriman (21 Wall., 63), and cases cited.

No action has been taken in the manner prescribed to enforce the forfeiture, and in my opinion the right to construct under the graut made by the act of May 8, 1890, continues. Approved, February 21, 1898,

C. N. BLISS, Secretary.

RAILROAD GRANT-FORFEITURE-SETTLEMENT RIGHT.

ST. PAUL, MINNEAPOLIS AND MANITOBA RY. Co. v. ANDERSON. The conditions on which the extension of time was given by the act of June 22, 1874, operate as a revocation of the grant to the extent of the rights of actual settlers at the date of said act; and such revocation is operative though the lands may have been patented under the grant.

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

21,

1898.

I am in receipt of your letter of August 2, 1897, in the matter of the case of the St. Paul, Minneapolis and Manitoba Railway Company v. Thom Anderson, involving lot 5, the NE. 4 of the SW. and the NW. of the SE. of Sec. 1, T. 146 N., R. 49 W., Crookston land district, Minnesota.

This tract is within the primary limits of the grant made by the act of March 3, 1871, to aid in the construction of what is known as the St. Vincent Extension of said road, as shown by the map of definite location filed and accepted December 19, 1871.

Under the provisions of the act of March 3, 1865 (13 Stat., 526), this road was required to be completed by March 3, 1873, but by the act of March 3, 1873 (17 Stat., 631), the time was extended to December 3, 1873. The company failed to complete the road within the time allowed, and by the act of June 22, 1874 (18 Stat., 203), the time was again extended to March 3, 1876, upon the following conditions:

That all rights of actual settlers and their grantees who have heretofore in good faith entered upon and actually resided on any of said lands prior to the passage of this act, or who otherwise have legal rights in any of such lands, shall be saved and secured to such settlers or such other persons in all respects the same as if said lands had never been granted to aid in the construction of the said lines of railroad.

Following the passage of this act, to wit, on October 8, 1874, Anderson was permitted to file pre-emption declaratory statement for this land, in which he alleged settlement on May 3, 1872. Prior to this time, to wit, on November 28, 1873, the company listed this tract on account of its grant, which list was duly approved on April 30, 1874,

and was patented to the State of Minnesota for the use and benefit of said company January 14, 1875.

On March 8, 1882, Anderson submitted final proof upon his filing, against the acceptance of which the company duly protested. Upon the hearing held upon the company's protest the local officers found that Anderson was a qualified pre-emptor and that his final proof showed compliance with the pre-emption law.

By your office decision of July 20, 1883, it was held that Anderson's claim was confirmed by the provisions of section 3 of the act of April 21, 1876 (19 Stat., 35), under which decision the local officers permitted Anderson, on August 3, 1883, to make payment for the land, upon which cash certificate issued. The company appealed from said decision, however, and on June 12, 1895, this Department held that it was error on the part of your office in allowing Anderson to complete entry of this land after the certification and patent on account of the grant, and you were directed to call upon the company to show cause why it should not re-convey the title erroneously conveyed on account of said grant, as contemplated by the act of March 3, 1887 (24 Stat., 556).

Your letter now under consideration reports that the company was duly called upon, by letter of June 25, 1895, to which no response was made by the company. You call attention, however, to the fact that as Anderson was residing upon this land on June 22, 1874, the date of the act extending the time for the completion of said road, it would appear that his rights are saved and secured the same as though said lands had not been granted, and refer to the departmental decision in the case of Tronnes v. said company (18 L. D., 101).

An examination of the two cases shows that they are similar in all important particulars, and as I can see no reason to depart from the holding made in the Tronnes case, after a full consideration of the matter, I have to direct that Anderson's entry, if otherwise regular and satisfactory, be passed to patent.

RAILROAD GRANT-LAND EXCEPTED-STATE TITLE.

LOTT v. NEW ORLEANS PACIFIC RY. Co.

The sale by a State of land to which it has no title, can not be recognized as excepting the land from the operation of a railroad grant.

Secretary Bliss to the Commissioner of the General Land Office, February (W. V. D.) (J. L. McC.)

21, 1898.

James H. Lott has appealed from the decision of your office, dated May 26, 1896, rejecting his application to make homestead entry of the N of the NE and E of the NW of Sec. 11, T. 5 N., R. 1 W., New Orleans land district, Louisiana, on the ground that said land had inured to the New Orleans Pacific Railway Company.