Section 2304, et seq., of the Revised Statutes, make special provisions with regard to certain classes of soldiers and sailors, their widows and minor children. Among these is the privilege of securing the right to enter under the homestead law a particular tract by filing a declaratory statement setting forth that the declarant has located a certain tract and that he intends to enter the same.

Such statement will hold the land described therein for a period of six months for the benefit of the declarant, and his rights if he enter at any time within the six months relate back to the date of his filing. He is for that time as completely protected and the land is as completely cut off from appropriation by another as if he had already entered it. In other words, he has exercised his homestead privilege, and all other claims to the land, initiated subsequently to his filing, are for the time being subordinate to his, and will amount to nothing if he comply with the conditions subsequent which are prescribed by the law. In administering the homestead law its general purpose and design are to be kept in view. It extends to all who are by its terms qualified to make entry an equal opportunity to secure title to not exceeding one hundred and sixty acres of public land. In the exercise of the privilege thereby conferred, Congress has seen fit to grant to certain persons on account of military or naval service the special privilege of securing land and holding it for a period not exceeding six months before making actual entry, by their filing what is termed a soldier's declaratory statement for the same. This privilege Ray, the appellee in this case, it appears, exercised in Kansas in May, 1880.

He has since, to wit, March 22, 1884, been permitted by the local office, acting under section two of the act of May 14, 1880, to make homestead entry in Missouri of the tract in question, and this while Stephens, the appellant, had an entry of record, which he had made a few days previously.

Your office justified this action on the ground that the rule laid down in circular of December 15, 1882 (1 L. D., 36), relating to soldiers' homestead declaratory statements, is not retroactive and therefore Ray's entry is not subject to cancellation.

Said circular in section four thereof declares that "a soldier will be held to have exhausted his homestead right by the filing of his declaratory statement; it being manifest that the right to file is a privilege granted to soldiers in addition to the ordinary privilege only in the matter of giving them power to hold their claims for six months after selection; but it is not a license to abandon such selection with the right thereafter to make regular homestead entry independently of such filing." Said circular was approved by the Department, and must, I think, be regarded as laying down for the guidance of your office the rule by which it should be governed in all applications to enter, made after its promulgation.

Whatever practice may have prevailed before, thereafter an applica

tion to enter under the homestead law must be refused, if it appear that the applicant has at any time filed a homestead declaratory statement all claim under which he has since abandoned. If the provisions of the circular of 1882 were made to apply to entries theretofore allowed so as to destroy rights which had been accorded under a previous practice, such ruling would properly be regarded as rendering the circular retrospective in its operation, and its propriety might be questioned. But to say that every one who after its promulgation applies to enter must show himself within its provisions, does not render it retroactive. It simply applies in future cases certain tests which must be met by the applicant for the purpose of showing that he is qualified to make entry.

If that portion of the circular, herein quoted, correctly interprets the law, then its limitations must be applied to every case where applica tion to enter is thereafter presented. To rule otherwise would be to violate the law. The circular itself, referring to the language quoted, says, "This is clear from the statutory language."

As has been stated, Ray, on the 22d of March, 1884, applied and was allowed to make homestead entry of the tract in question. For the reasons above given that allowance was, under the provisions and limitations of the circular of December 15, 1882, error, Ray having exhausted his right to make homestead entry by having filed his homestead declaratory statement in May, 1880, the claim which he afterwards abandoned. Your office decision is therefore reversed, and Ray's entry will be canceled.

RAILROAD GRANT-COMMON GRANT LIMITS.

JARRETT v. MISSOURI, KANSAS & TEXAS RY. Co.

The words, "to be selected within twenty miles from the line of said road," occurring in the granting clause of the act of July 25, 1866, do not operate to make the grant a float, but serve only to define the limits of the grant.

Priority of grant determines the right to land lying within common granted limits. Acting Secretary Muldrow to Commissioner Sparks, September 8, 1886.

I have considered the case of W. D. Jarrett v. the Missouri, Kansas and Texas Railway Company, on appeal by the latter from your office decision of July 22, 1885, holding for cancellation its selection for the N. of NE. of Sec. 11, T. 35 S., R. 22 E., Independence, Kansas, and allowing Jarrett to make homestead entry for the tract.

The land in question is within the ten mile (granted) limits of the grant made by act of July 26, 1866, (14 Stat., 289,) in aid of the Union Pacific Railroad, Southern Branch (now Missouri, Kansas and Texas Railway) and also within ten miles of the route indicated by the map of definite

location filed by the Kansas and Neosho Valley Railroad Company, pursuant to the act of July 25, 1866 (14 Stat., 236).

Said last mentioned act provided:

"That for the purpose of aiding the Kansas and Neosho Valley Railroad Company . . . . . to construct and operate a railroad... there is hereby granted to the State of Kansas, for the use and benefit of said railroad company, every alternate section of land or parts thereof, designated by odd numbers, to the extent of ten sections per mile on each side of said road, to be selected within twenty miles from the line of said road; but in case it shall appear that the United States have when the line of said road is definitely located, sold any section or any part thereof granted as aforesaid, or that the right of pre-emption or homestead settlement has attached to the same, or that the same has been reserved to the United States for any purpose whatever, then it shall be the duty of the Secretary of the Interior to cause to be selected for the purposes aforesaid from the public lands of the United States nearest to the sections above specified so much land as shall be equal to the amount of such lands as the United States have sold, reserved, or otherwise appropriated. . ..... And provided further, That none of the lands hereby granted shall be selected beyond twenty miles from the said road."

By act dated one day after the above quoted act, to wit, on July 26, 1866, Congress granted to the State of Kansas, for the use and benefit of the Union Pacific Railroad Company, Southern Branch, "every alternate section of land or parts thereof designated by odd numbers to the extent of five alternate sections per mile on each side of said road and not exceeding in all ten sections per mile : and provided further that said lands hereby granted shall not be selected beyond twenty miles from the line of said road."

Under this act the Missouri, Kansas and Texas road was definitely located January 8, 1868.

The Kansas and Neosho Valley road was duly constructed, and was definitely located January 5, 1869. It took patents for many tracts of land after definite location, but, its grant being repealed by act of March 3, 1877 (19 Stat., 404), subsequently reconveyed such tracts to the United States in accordance with the provisions of that act. The tract in question was never actually selected by said road, but was selected by the Missouri, Kansas and Texas Company June 25, 1883, and the selection has never been approved.

The questions herein involved turn on the construction to be given to the words of the act in aid of the Kansas and Neosho Valley road. The attorneys for appellant contend that the act gives:

"1st. A grant 'to the extent of ten sections per mile' to be selected within a larger limit of twenty miles on each side of the road.

2d. The right to select from the public lands (odd or even sections) within the same limit to compensate for any losses caused by prior sales or disposals by reservation or settlement claims."

A glance at the history of said act affords an insight as to its real

meaning. The bill originated in the Senate, and as it passed that body the granting clause read as follows:

"There is hereby granted to the State of Kansas for the use and benefit of said railroad company every alternate section of land or parts thereof, designated by odd numbers, to the extent of ten sections per mile on each side of said road." (Cong. Globe, 1st Sess., 30th Cong., 4058).

It will be conceded that this clause, as quoted, makes a grant in place, and is substantially in the ordinary words of railroad grants. When the bill was called up in the House, there was added to the above granting clause the words, "to be selected within twenty miles from the line of said road." On this amendment there was no debate. The bill was read a first and second time, and thereupon Mr. Anderson said: "On behalf of the Committee on Public Lands, I submit the following amendment: in section one, line seventeen, after 'road' insert 'to be selected within twenty miles from the line of said road."" The amendment was agreed to without division or comment. Indeed the bill was not debated in the House at all. (Ibid., 4059). It was returned to the Senate and there the amendment was concurred in without debate or division. Now the appellant urges that this grant "was a float of land to be selected, and could take effect only from date of selection." I am unable to concur in this opinion. The act has never received a construction by this Department, probably owing to its repeal in 1877. But the contemporaneous and constant construction of your office has been that the alternate odd sections not disposed of within ten miles of the road were "granted lands," and that the public lands lying between the ten and twenty mile limits were subject to selection as "indemnity lands." This is evidenced by the official maps of your office and by the fact that patents in both limits were issued in conformity with this view. The correctness of such construction is further evidenced by the fact that section two of the act raises to double minimum the reserved even sections only within ten miles of the road, just as in all other railroad grants having a ten mile granted limit. But further, an examination of the debates in Congress clearly indicates that this grant was intended by Congress to be in line with other railroad grants and not a departure therefrom; and I will be slow to declare that the simple amendment, "to be selected within twenty miles from the line of said road," adopted without division and without debate, and that after the bill had passed the Senate, operates to radically change the nature of the act from a grant in place to a mere float, unless it appears that the amendment cannot be otherwise reconciled with the act. After a full examination of the case, I am of opinion that the amendment in question has the same force and effect as the usual proviso at the end of the first section, to wit: "That said lands hereby granted shall not be selected beyond twenty miles from the line of said road." It oper ates merely to define the boundary beyond which lands cannot pass

under the grant. I am therefore convinced that the contemporaneous construction of your office was correct.

In this view a case is presented in all respects similar to the case of Missouri, Kansas and Texas Railway Company v. Kansas Pacific Railway Company (97 U. S., 491), wherein the court held, "The rights of the contesting corporations to the disputed tracts are determined by the dates of their respective grants, and not by the dates of the location of the routes of their respective roads." The Kansas and Neosho Valley Company having the prior grant, and having constructed its road, its rights took effect on definite location, and relating back, cut off all claim by the Missouri, Kansas and Texas road. Its selection is theretherefore rejected, and the decision appealed from is accordingly affirmed.

RAILROAD GRANT-INDIAN TITLE.

NORTHERN PAC. R. R. Co. v. CLARK.

The extinguishment of Indian title contemplated by the second section of the grant to this company had reference to lands lying within what was then known as the territory of the Indians, and not to such as were embraced within technical reservations.

As the Indian title to these lands was not extinguished until after the definite location of the road they were accordingly excluded from the grant.

Acting Secretary Muldrow to Commissioner Sparks, September 8, 1886.

This is a motion for review of the decision of my predecessor of September 17, 1884, involving the question of the right of the Northern Pacific Railroad Company under its grant to the lands embraced within that part of the Crow Indian reservation released under an agreement of sale accepted and ratified by Congress April 11, 1882 (22 Stat., 42). The case came before my predecessor upon an appeal from the decis ion of your office awarding to Clark the S. of the NW. and the NW. of the NW. of Sec. 29, T. 1 S., R. 11 E., Bozeman, Montana, which is embraced in the part of the reservation aforesaid.

The company claims that these lands became subject to their right, after the extinguishment of the Indian title, by virtue of the 2d section of the act of 1864 (13 Stat., 365) making the grant to this road, whereby the government agreed in terms that it would "extinguish the Indian titles to all lands falling under the operation of the act and acquired in the donation to the road named in this bill."

The question therefore arises: What lands were contemplated by this act, to which the government agreed to extinguish the Indian title?

By the act of June 30, 1834, all that part of the United States west of the Mississippi River, except the States of Missouri and Louisiana and the Territory of Arkansas, was declared to be the Indian country. The fee of this vast territory was in the United States, subject, how