RAILROAD GRANT-PRE-EMPTION FILING-INDEMNITY SELECTION.

NORTHERN PACIFIC R. R. Co. ET AL. v. JOHN O. MILLER.

A prima facie valid pre-emption filing of record at the date when a railroad grant takes effect excludes the land covered thereby from the operation of the grant. The right to select a particular tract as indemnity can not be recognized if the loss for which indemnity is claimed is not specifically designated.

Secretary Noble to the Commissioner of the General Land Office, July 1, 1890.

The SE. of NE. and the NE. of SE. of section 19, T. 131 N., R. 40 W., Fergus Falls, Minnesota, are within the granted limits of the St. Paul, Minneapolis and Manitoba Railway company and also within the indemnity limits of the Northern Pacific Railroad company.

The rights of the former company (as stated by your office) attached December 19, 1871, and a withdrawal for the benefit of the latter was ordered by your office letter of December 26, 1871, received at the local office January 6, 1872.

On November 24, 1871, Jens Anderson filed pre-emption declaratory statement alleging settlement the same day upon the land described.

On January 30, 1884, the Northern Pacific Railroad applied to select the said land. Its application was rejected at the local office and the said company appealed.

On April 8, 1884, John O. Miller, alleging that the filing of Andersou had excepted the land from the grant to St. Paul, Minneapolis and Manitoba Ry., made homestead application for the same.

Thereupon a hearing, at which the applicant and the company last named were represented by counsel, was had at the local office on May 15, 1884.

On the same day the local officers found from the testimony that Anderson had made settlement, built a house, and resided upon the land

2497-VOL 11—1

1

and that his claim being "capable of being perfected at the time the railroad grant took effect" excepted the land therefrom.

From this ruling an appeal was taken by the attorney for the company.

On September 16, 1885, your office held that Anderson's filing excepted the land from the grant to the St. Paul, Minneapolis and Manitoba Co., and also that the same "is not subject to selection as indemnity by the Northern Pacific Company because one company cannot go into the granted limits of another for indemnity lands."

From the foregoing both of the said companies have appealed.

At the date when as stated, the rights of the St. Paul, Minneapolis and Manitoba company attached, Anderson's filing was of record and prima facie valid. It, therefore, operated to except the tract from the grant to that company. Malone v. Union Pacific Railway Company (7 L. D., 13); Northern Pacific Railroad company v. Stovenour, decided June 7, 1890, (10 L. D., 645).

The claim of the Northern Pacific Railroad company to a right to select the tract involved is based upon the third section of its granting act (July 2, 1864, 13 Stats., 365), which provides that whenever prior to the definite location of its line of road

any of said (granted) sections or parts of sections shall have been granted, sold, reserved, occupied by homestead settlers or pre-empted or otherwise disposed of, other lands shall be selected in lieu thereof under the direction of the Secretary of the Interior in alternate sections and designated by odd numbers not more than ten miles beyond the limits of said (granted) alternate sections.

The loss to its grant in the manner prescribed of a tract or tracts of land corresponding to those which it claims as indemnity is, under the stated provisions of its grant, an essential to the right of the company to so select.

That such losses should first be shown to the satisfaction of the land department, is obvious, for otherwise the indemnity claimed therefor could not properly be selected under the "direction of the Secretary of the Interior" or in other words, in accordance with the act of 1864, supra.

By circular approved August 4, 1885, (4 L. D., 90), the various local officers were instructed as follows:

Before admitting railroad indemnity selections in any case you will require preliminary lists to be filed specifying the particular deficiencies for which indemnity is claimed and in cases where indemnity selections have heretofore been made without specification of losses you will require the companies to designate the deficiencies for which such indemnity is to be applied before further selections are allowed.

The particular loss in lieu of which the Northern Pacific Railroad company seeks to select the land in question is not shown by the record before me and I am advised by your office that it has failed to designate the same.

The said application of the Northern Pacific Railroad is accordingly denied.

The homestead application of Miller, if in other respects regular, will therefore be allowed.

The action of your office in rejecting the respective claims of the said companies to the land described, is for the reasons stated hereby affirmed.

FINAL PROOF PROCEEDINGS-TRANSFEREE.

JOHN HILDEN ET AL.

Where no cause is shown for failure to submit final proof on the day fixed therefor, but such proof is accepted by the local office, the defect may be cured by reference to the board of equitable adjudication.

A transferee in good faith may be accorded an opportunity to show the qualification of the pre-emptor.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, July 1, 1890.

I have considered the appeal of Daniel F. Law, transferee, from your office decision of October 9, 1888, holding the pre-emption entry of John Hilden for cancellation.

The record shows that on the 5th day of August, 1881, John Hilden filed his declaratory statement for the E. SE. 4, of Sec. 12, T. 8 S., R. E., B. M., in the local land

41 E., and lots 3 and 4, Sec. 7, T. 8 S., 42 office at Oxford, Idaho, alleging settlement on the 26th day of July, 1881. July 21, 1882, notice was given that claimant would make his final proof before the deputy clerk of the United States court at Soda Springs, on the 25th day of August, 1882. Said proof bears date August 28, 1882, and shows the claimant to be a single man twenty-nine years of age and naturalized; that settlement was made on the lan 1 July 26, 1881, and that he built a house and corral thereon. Value of the improvements $200. It also shows that actual residence was established on the land in August, 1881, and was continuous thereafter to date of proof. No description of the house is given.

As to the quantity of land broken and cultivated, he answered "seventy-five acres," and says it was used for cutting hay. His witnesses say that the land was used for "pasturage and for cutting hay."

His proof was approved by the local office and the usual certificate of purchase given.

On the 8th of March, 1884, your office suspended the entry and required him to submit supplementary proof of "record evidence" show. ing him to be a naturalized citizen, or to have declared his intention to become such.

June 11, 1884, the local office reported to your office that he had been notified that he was required to furnish the record evidence required and notice returned "Hilden left the country," that his attorney was