moiety of said lands, or patent to the State for the whole for the joint benefit of said company and the United States, it became necessary to reject the former lists, presented by the company, and to require it to specify particular tracts, which in the aggregate would amount to one half of the lands within its granted limits so that patents conveying full title to the same might be issued therefor.

The adjustment has been made on these principles; lists have been prepared and approved for patent, and the adjustment is practically closed. It is not perceived there is anything improper in the mode adopted, or that any wrong has been done to the petitioners for which the government is in any way responsible. If they have thought proper to purchase lands to which they supposed the company was entitled, and now find themselves mistaken, the United States is not to blame. It has administered and adjusted said land grant in accordance with the law and contract under which it was made, and can not undertake now to open the same to gratify the views or protect the rights of persons who may see therein a remote or resulting injury to themselves. However much it might be desired that all parties should be protected and exact justice done, those charged with the adjustment of the grant are officers of the law, who can not deviate from its rule because obedience thereto may seemingly inflict individual hardships.

Had the Department been aware of the truth of the matters stated in the petition before the adjustment of the grant, it is hardly probable that it would have required the Omaha company to list and take patents for the described land, in order to force it to comply with the spirit of its contract with the Central company. For the officers of the government thus to go outside of their legitimate duties to settle disputes and enforce contracts between parties to which the United States is in no way privy, would be entering upon an undertaking of more vast proportions than the business of the government itself. The questions and complications of law and facts incident to such an inquiry would be endless, and, as probably the railroad company has sold, or contracted to sell, other lands, more perhaps than it will receive patents for, if the door is thrown open un ler the present application doubtless other petitioners would set up like claims with equal or even greater equities, and the executive department, organized for the administration of the public laws, would be converted into a tribunal for passing upon, determining and enforcing private rights.

It may be that these parties are amply protected in their purchases by the provisions of the acts of January 13, 1881 (21 Stat., 315), or of March 3, 1887 (24 Stat., 556), if they choose to take the necessary steps to that end.

But, without expressing an opinion on that subject, which I am not now called upon to do, I am clear in my convictions that the prayer of the petitioners should be rejected, which is accordingly done, and of which you will notify them, and file the petition which is sent to you for that purpose.

RAILROAD GRANT-INDEMNITY-WITHDRAWAL-SUSPENSION OF PROCEEDINGS.

WISCONSIN CENTRAL R. R. Co. (ON REVIEW).

The lands reserved by executive order for indemnity purposes under the grant of June 3, 1856, are excluded by express terms from the grant made by section 3, of the act of May 5, 1864; and the lands so withdrawn and reserved, but not required as indemnity, do not become subject to the latter grant on the final adjustment of the former.

Application for suspension of action under the departmental decision of January 24, 1890, pending judicial proceedings denied.

Secretary Noble to the Commissioner of the General Land Office, December 19, 1890.

On October 15, 1888, your office held for cancellation certain lists of land presented by the Wisconsin Central Railroad Company and claimed as part of its granted lands under the act of May 5, 1864 (13 Stat., 66). From said cancellation the company appealed; and, on January 24, 1890, the action of your office was approved by this Department (10 L. D., 63). On May 17, 1890, the said company filed here a petition setting. forth that the lands listed as above are valuable for the timber thereon, are adjacent to, and one tract within the limits of the city of Ashland, in the State of Wisconsin; that petitioner, relying upon its supposed title thereto, has sold and conveyed divers portions of said lands; that petitioner has instituted cases in the United States circuit court for the western division of Wisconsin against William O. Forsythe and others, for the purpose of obtaining a judicial determination of its rights to the lands in question; that a decision is expected at the June term, 1890, of said court, when it is expected that Mr. Justice Harlan, of the United States supreme court, will be present and preside. Wherefore, in view of the complications which may arise, if the lands in question are thrown open to the public before title to the same shall be settled and adjudicated in the court, the great embarrassment, confusion and ultimate loss which will occur to parties settling thereon under the land laws, should the right and title thereto be determined to be in the company under its graut, it is asked that no action be taken by the Department looking to the restoration of said lands to the public domain, and making them subject to settlement and entry, until said cases or some of them may be determined, and rights definitely ascertained in respect to the same.

The lands here referred to are those within the overlapping limits of the Omaha Railway grant and that of the said Wisconsin Central Company.

On June 2, 1890, the attorney for the Wisconsin Central filed here a supplemental petition, setting forth reasons why in its judgment the lands in question should be awarded to it, and why no action should be taken under the departmental decision, until the courts shall have passed upon the issues involved.

Inasmuch as this last paper sets forth reasons why the lands in question should be awarded to the Central Company, after the Department. had decided in 10th L. D., that said lands should not be awarded to that company, the application, to that extent, is a motion for review; and not having been filed within the time required by the rules might be properly disregarded.

One of the reasons urged in favor of the review is, that it having been announced in 10' L. D., 147, that the Omaha grant had been finally adjusted and fully satisfied, and that surplus lands were left after said adjustment and satisfaction, the grant of 1864 in favor of the Central Company is now clearly operative upon said surplus lands, and in fact has been all the time, to the extent that they might not be required to satisfy the claims of the Omaha Company.

The case of the Wisconsin Central Railroad Company . Forsythe, before referred to, was tried at the June term of the United States circuit court for the western district of Wisconsin, but has not yet been reported. On September 15, 1890, Mr. Justice Harlan delivered the opinion in that case, which was, in effect, an appeal to the court from the previous decisions of this Department in respect to the Omaha grants and the grant to this company and their relations to each other. In an exhaustive opinion, the whole subject, in all its aspects, was dis cussed, the departmental decisions quoted, and the views therein expressed were concurred in. The point here presented, as to the right of the Central Company to the surplus lands, after the satisfaction of the Omaha grant, was pressed in that case and was fully answered by Justice Harlan, in his opinion, a copy of which is now before me, as follows:

Another contention upon the part of the plaintiff is that, even conceding that the lands in dispute were reserved by virtue of their being withdrawn prior to 1864 for indemnity purposes, yet as the object for which the withdrawal was made, namely, to supply deficiencies in the place limits of the Bayfield road, were fully satisfied (before the defendant made his entry), by the final adjustment of the land grant for the Omaha road, the lands, so withdrawn, would be affected by the granting clause in the third section of the act, and so become and be the property of the Central Company under that section. This view is in opposition to many adjudged cases. Whatever force it might have in the case of two contemporaneous grants to different companies, covering the same land, in neither of which an exception was made of lands "reserved to the United States," it can have no application where, as in the present case, the statute expressly reserves and excludes from its operation any and all lands so reserved. If these lands were reserved when the act of 1864 was passed, they certainly were not granted by the third section of that act to the Central road and could not get into the grant to, and become the property of the Central Company, by reason simply of their not being required for the adjustment of a different grant made for another road. This view is illustrated by several cases.

And the cases of Kansas Pacific Railroad v. Dunmeyer 113 U. S., 629, Bullard v. Des Moines R. R., 122 U. S., 167-176, and Hastings, and Dakota Ry. v. Whitney, 132 U. S., 357, were quoted in support.

After discussing another question, the opinion continues:

It was stated at the bar that the decision of this case and two other cases in ejectment, tried at the same time and depending upon the same facts, would indirectly affect the title to large tracts of land, in the same situation as the particular lands here in dispute, and which have been heretofore sold in good faith, by the Central Company, to bona fide purchasers in the belief that they were embraced in the grant in the third section of the act of May 5, 1864, and not excluded from the operation of that act by the sixth section relating to lands reserved to the United States; and that a decision in favor of the defendant in the present case would produce great confusion and trouble among such purchasers. In view of this statement the court has felt it to be its duty to embody in this opinion all the material facts shown in evidence, and to state fully the grounds upon which its conclusion rests. That conclusion is:

That the lands in dispute were not granted by the United States for the benefit of the road mentioned in the third section of the act of May 5, 1864, and that the grant for the benefit of the railroad beginuing at a point on the line from the St. Croix River or Lake to the west end of Lake Superior, and extending to Bayfield, described in the first section of that act, having been fully adjusted by the United States with the only company that was entitled to the benefit of such last named grant, the lands in dispute became part of the public domain, in virtue of the orders subsequently made by the Secretary of the Interior, and were thereafter opened to entry under the homestead and pre-emption laws of the United States.

In view of this clear exposition of the law by so eminent a jurist, and my own convictions, I am not persuaded by the theory of counsel to reverse the former decisions of the Department in this case.

That portion of the application which asks that the lands in question be retained in reservation until the final adjudication, by the courts, of the claims and pretensions of the Central Company, raises a question of administrative policy; upon the full consideration whereof, I am not disposed to accede to the request made.

The matter of the rights of the Omaha and Central Companies under their respective grants, and their relations to each other, has been the subject of consideration and reconsideration by this Department for a number of years. My predecessor, Secretary, now Mr. Justice, Lamar gave them a most careful examination, as will be seen by his opinions in 6 L. D., 190, and 195. My own decision in 10 L. D., 63, was made after a careful review of the whole subject, and I have no doubt about its correctness; and it is now re-inforced by that of so eminent a jurist as Mr. Justice Harlan. Under these circumstances, I am impressed with the belief that it would be unwise, if not a grave dereliction of duty, to interfere with the regular course of administration by retaining in reservation, for an in-lefinite period, some 200,000 acres of land, which my predecessor, myself, and Mr. Justice Harlan have held to be public lands, and ought to be thrown open to settlement and entry. If such action should be taken in the present instance, it is not seen how it could well be refused, where any claim is set up to a tract of land. Any one, claiming rights as a settler or entryman, which have been passed upon adversely by this Department, would have a right to expect that the particular tract claimed by him should be held in reser

vation until he had his rights finally adjudicated by the supreme court of the United States.

The application of the Central Company is denied, of which you will inform it; and the papers relating thereto are herewith sent you.

PRACTICE-REHEARING- NEWLY DISCOVERED EVIDENCE.

MCKINNIS v. STATE OF Oregon.

An application for rehearing on the ground of newly discovered evidence should be supported by the affidavits of the persons by whom the applicant expects to prove the alleged additional facts.

A rehearing will not be granted on the ground of newly discovered evidence where due diligence is not shown in making known the alleged discovery and taking action thereon.

The failure of the applicant's attorney to properly conduct the case does not furnish ground for a rehearing..

Where the local office, the General Land Office, and the Department, concur in a finding of fact, and that fact is the only issue in the case, a very strong and clear showing is required to justify a reversal of said decisions on review.

Secretary Noble to the Commissioner of the General Land Office, December 20, 1820.

Charles McKinuis has filed a motion for review of departmental decision of March 31, 1890, in the case of said McKinais v. The State of Oregon, involving the E. of the SW. 4 of Sec. 8, and the E. of the NW. of Sec. 17, T. 41 S., R. 25 E., Willamette Meridian, Lakeview land district, Oregon.

The sole question in issue is whether the tract in question is swampland within the meaning and intent of the acts of September 28, 1850 (9 Stat., 519) and March 12, 1860 (12 Stat., 3).

McKinnis offered his declaratory statement June 23, 1885, but it was refused by the local officers because the tract therein described had previously (January 6, 1883,) been included in a list of selections of swamp lands filed by said State. McKinnis thereupon filed affidavit of contest; a hearing was had; and on the evidence adduced the local officers decided (August 13, 1886,) that the tract was swamp-land. McKinnis appealed to your office, which (January 2, 1889,) affirmed the decision of the local officers. He then appealed to the Department, which, after a careful examination of the voluminous testimony taken at the hearing, on March 31, 1890 (supra), affirmed the decision of your office.

The sole ground of review is that of newly discovered evidence. Accompanying the application are a number of affidavits embodying said evidence-sworn to by Woodson Garrard, Thomas Wheeler, David Lodge, Peter Peterson, R. C. Clark, and Filander Bonnom.

Besides those above named, the applicant refers to P. H. Dolan and Henry Coleman, as persons whose residence he has but recently dis