mitted to file before settlement "a declaratory statement as in preemption cases," and required within six months thereafter to begin his settlement and improvement.

An entry under the pre-emption law must be made "by legal subdivisions." (Section 2259, R. S.) The declaratory statement upon which said entry is based must describe in like manner the land so entered. This is conclusively shown by section 2266 R. S., whereby the pre-emption settler on unsurveyed land is required to file such statement within three months after the receipt of the township plat at the local office.

The soldiers declaratory statement under section 2309, supra being the same "as in pre-emption cases" must therefore describe in accordance with the public surveys the land which he purposes to enter under section 2304 R. S., whereby his entry is also required to be made "according to legal subdivisions."

The appellant has made no settlement on the land and (as I am advised by your office), although a contract for the survey of the strip between the said reservation and the public surveys has been awarded, the land involved is still unsurveyed.

The application in question must therefore be denied.
The decision appealed from is affirmed.

RAILROAD GRANT-SETTLEMENT-ALIEN.

CENTRAL PACIFIC R. R. Co. v. BOOTH ET AL.

The settlement and residence of an alien upon lands within the limits of a railroad grant does not except the lands covered thereby from the operation of the grant. Secretary Noble to the Commissioner of the General Land Office, July 24, 1890.

I have considered the case of the Central Pacific Railroad company v. Henry Booth and James P. Robson, as presented by the appeal of the former from the decision of your office, dated April 5, 1886, rejecting its. claim to the E. of SE. of Sec. 33, T. 7 N., R. 2 W., Salt Lake City land office Utah Territory, and allowing said Robson to make homestead entry of said tracts.

The record shows that said tracts are within the limits of the grant to said company by acts of Congress approved July 1, 1862, and July 2, 1864 (12 Stat., 489, and 13 Stat., 356), the right of which is held to have attached to the granted lands on October 20, 1868 (5 L. D., 661).

On March 15, 1869, and October 5, 1877, the township plat of survey was filed in the local land office. On May 14, 1869, one Henry Booth filed his pre-emption declaratory statement, No. 425, for said tract alleging settlement thereon April 15, 1858. On May 14, 1869, Booth also filed his declaration to become a citizen of the United States.

The company, on December 26, 1884, made application to have said land patented under said grant, and said Booth was duly notified to appear and show cause why said application should not be allowed.

On February 18, 1885, said Robson made application to enter said tract under the homestead law, and the same was rejected by the local office. The hearing was duly had on February 19, 1885, both parties being present. Upon the evidence submitted the local land officers awarded said land to the company, for the reason that at the date when the right of said company attached to its granted lands, said Booth was an alien and he could acquire no right under the settlement laws of the United States.

On appeal, your office reversed the action of the local land officers, holding that the settlement and residence of said Booth at the date when the right of the company attached served to except the land covered thereby from said grant; that the claim of the company must be rejected, and Robson allowed to enter said land.

The evidence submitted shows, that Booth was residing on said land, with his family, on October 20, 1868, and continued to reside thereon until 1870, when he sold his improvements, consisting of a dwelling house and other improvements, all valued at $700 or $800. It also appears that Robson is the present occupant of the land and has resided thereon since the spring of 1874, and that his improvements are worth from $1000 to $1500.

The sole question presented in the record is, will the settlement and residence of an alien upon lands within the limits of said grant at the date of the definite location of its road except the same from the grant? This question must be answered in the negative.

Section three of said act of July 1, 1862, grants to said company "every alternate section of public land designated by odd numbers, to the amount of five alternate sections per mile on each side of said road, not sold, reserved, or otherwise disposed of by the United States, and to which a pre-emption or homestead claim may not have attached at the time the line of said road is definitely fixed."

Section four of said act of July 2, 1864, enlarged the grant, by strik ing out the word "five" in section three of the act of July 1, 1862, and inserting in lieu thereof the word "ten," and provided (inter alia), that "any lands granted by this act, or the act to which this is an amendment, shall not defeat or impair any pre-emption, homestead, swamp land, or other lawful claim."

It will be observed that the enlarging act expressly provides that the claims which shall not be impaired are, "pre-emption, homestead, swamp land or other lawful claim." The occupancy of land by an alien can not be considered a "lawful claim," for he knows that an alien can not acquire title to land from the United States under the settlement 'laws.

It was expressly ruled by this Department, in the case of Southern

Pacific R. R. Co. v. Saunders (6 L. D., 98), that an alien can acquire no right to public land before filing declaration of his intention to become a citizen. See also Titamore v. Southern Pacific R. R. (10 LD, 463). It follows, therefore, that the decision of your office was erroneous, and the same is therefore reversed.

RAILROAD GRANT-FINAL PROOF PROCEEDINGS.

FLORIDA RY. AND NAVIGATION CO. v. Dodd.

The failure of a railroad company to appear in response to a published notice of intention to submit final proof precludes its denial of the correctness of the case as made by the record, but forfeits no right to which it is entitled under the law as shown by the record.

No rights can be acquired by entry or settlement upon lands that were free at date of definite location, and passed thereby under the operation of the grant.

Secretary Noble to the Commissioner of the General Land Office, July 24, 1890.

I have before me the appeal of the Florida Railway and Navigation Company from your office decision of May 7, 1887, holding for confirmation William C. Dodd's pre-emption cash entry, made October 28, 1884, for the NE. NE. Sec. 23; S. SW. Sec. 13, and SE. SE. 1, Sec. 14, T. 18 S., R. 22 E., Gainesville district, Florida.

The tracts in the odd-numbered sections are within the six mile primary limits of the grant claimed by the Florida Railway and Navigation Company (successors to the Atlantic, Gulf and West India Transit Company), between Waldo and Tampa.

The records show that one Daniel F. Perry made homestead entry for the land in question May 24, 1877, which was canceled June 30, 1880, also, that William C. Dodd (the appellant here) filed declaratory statement on said land, November 24, alleging settlement November 19, 1883. No other entry or filing appears to have been made therefor, except the entry now under consideration.

No appearance was made in behalf of the railroad company to contest the claim of Dodd, in response to the published and posted notice of his intention to make final proof. Your office held that "by such failure to appear, said company waived whatever claim it might otherwise have asserted in the premises, and is barred from objecting to subsequent action on the entry in this (your) office."

There is no doubt that by its "failure to appear," when it had its "day in court," the company, like any other defaulting party, is barred both from denying the correctness of the case made by the record, and from objecting to the consequences which the law attaches to that case. But, except in this sense, and to this extent, such a default waives no “claim” at all, and the absent party forfeits no right which even the

case made in its absence by its adversary shows that it has in law. See case of Randolph v. Northern Pacific Railroad Company (9 L. D., 416). The case made by the record here, admitting the literal correctness of every allegation made by Dodd and his witnesses, shows the legaltitle to the 'land in dispute to be in the company. It is the ruling of this Department (5 L. D., 107), that the definite location of this portion of the company's road occurred in December, 1860, and according to the record the land in dispute was at that time vacant public land. Neither Perry's homestead entry, of May, 1877, nor Dodd's pre-emption settlement, of November, 1883, could in any way effect the company's right, which had thus become vested some twenty years before. The facts proved by Dodd go simply to his own residence and improvement long after the tract had ceased to be public land; their being in proof, accordingly, in no way justifies the awarding of the company's land to Dodd.

Said decision is accordingly reversed.

RAILROAD GRANT-WITHDRAWAL ON GENERAL ROUTE.

MCARTHUR v. NORTHERN PACIFIC R. R. Co.

Land included within the limits of withdrawal on general route is held in reservation until definite location of the road, and the status of such land, under said withdrawal, is not affected by the fact that said land also fell within the limits of a subsequent order which purported to withdraw it for indemnity purposes. Secretary Noble to the Commissioner of the General Land Office, July 24, 1890.

This is an appeal by J. Amos McArthur from your office decision of January 13, 1888, affirming the local office and rejecting his application of November 26, 1887, to make homestead entry for the N. † NW.‡ and SE. NW. and NW. of NE. Sec. 13, T. 5 N., R. 3 E., Vancouver, Washington Territory.

On August 13, 1870, the Northern Pacific Railroad Company filed in your office a map showing the general route of its road from a point at the mouth of the Walla Walla river, in said Territory, along the course of the Columbia, to about the first range line west of the Willamette principal meridian, and thence north to the point where the international boundary first touches the tide waters of the Pacific Ocean.

Upon the filing of this map, the laud within the limits of the grant to said company upon each side of the route, as so indicated, was withdrawn from settlement by operation of law. Buttz v. Northern Pacific R. R. Co., 119 U. S., 55.

By joint resolution of May 31, 1870, (16 Stat. 378) the designations of certain lines of the company's road were changed: that which by the granting act was known as the branch line (via the valley of the

Columbia river to a point at or near Portland in the State of Oregon) was changed to "main road" or "main line ", and that which had been designated as main line (across the Cascade mountains to Puget Sound) was changed to branch line. By the same resolution there was conferred upon the company, a grant of lands for the line of its road from Portland to Puget Sound. Northern Pacific R. R. Co., v. McRae (6 L. D. 400).

The land involved is within the limits of the said statutory withdrawal on the map showing that part of the general route of the Northern Pacific Railroad between Ainsworth and Portland, filed August 13, 1870. It also fell outside of the granted and within the indemnity limits of the grant as designated by the map showing the definite location of the company's road between Portland and Kalama, filed September 22, 1882.

The appellant insists that said withdrawal of August 13, 1870, was by virtue of the said joint resolution of May 31, 1870, and not by the original grant of July 2, 1864; that the limits of the grant by said resolution having been definitely fixed, the land not having been selected as indemnity by the company, and the order which purported to withdraw it for indemnity purposes having been revoked by the Department, on August 15, 1887 (6 L. D. 133), it was subject to the appellant's application.

I cannot agree with this contention. The land being within the limits of the withdrawal on the general route of the road between Ainsworth and Portland, the said withdrawal is in full force and effect, until the road is definitely located, and its grant thereby defined between the points named and opposite the tract involved. This has not been done. The land was, therefore, at the date of appellant's application to enter subject to such withdrawal.

The fact that the land had been within the limits of the order which purported to withdraw it for indemnity purposes, could not affect its prior withdrawal by operation of law.

Your decision is affirmed.

SURVEY-SPECIAL AGENT'S REPORT.

EDWARD G. MCCLELLAN ET AL.

A survey should not be approved if the corners are not marked as indicated therein, and as required by the rules and regulations.

Secretary Noble to the Commissioner of the General Land Office, July 25, 1890.

With your letter of April 4, 1890, you transmit the papers in the matter of the appeal of Edward G. McClellan and Thomas K. Stewart from your decision rejecting the surveys of the exterior boundaries of