sented by the appeal, viz: whether the question as to the right of the company to the tracts in dispute is res adjudicata, and, therefore, beyond the jurisdiction of the Department.

With regard to this question, I am decidedly of the opinion that the case is not res adjudicata. The ruling of your office of July 31, 1880, relied upon by the company to sustain its case, was clearly an erroneous exposition of the law in relation to such matters. That decision gave the railroad company no greater rights as against the United States than it theretofore possessed. The land did not pass to the company under its grant, and therefore it never took title to it. The question is now one solely between Griffin and the government. True, so far as the preemption claim of Hendrix is concerned, it is forever at an end. It is res adjudicata. But that has nothing to do with the claim of the United States government. Whitnall v. Hastings and Dakota Railway Company (4 L. D., 249).

Now, from the grant to this company, under the acts of Congress be fore referred to, were excepted all lands to which a pre-emption or homestead claim had attached at the time the grant took effect. As before stated, both at the date of the grant and also at the date of the withdrawal, the lands in question were occupied and improved by a bona fide pre-emption claimant, who some years afterwards abandoned his claim. They were therefore excepted from the grant to the company by the terms of the granting acts, and do not, and cannot, be held to belong to the company. See "Perkins" case (supra), and many later departmental decisions. The lands not having passed to the company under its grant, it cannot be heard to object to any disposition the United States may choose to make of them.

I therefore affirm your office decision rejecting the claim of the company to the land involved. Some question having arisen between Mr. Griffin and another party claiming to have purchased the improvements of Hodnett, as to priority of right, and that question not having been passed upon by your office, I return herewith all papers in the case for such further action as may be necessary in the premises.

SCHOOL LAND-PRE-EMPTION.

JOHN JACK.

A filing on a school section being held for cancellation on special agent's report charg ing want of settlement, the pre-emptor is allowed to furnish final proof in view of alleged settlement before survey and continuous residence thereafter, though the filing was not placed of record within the statutory period.

Secretary Lamar to Commissioner Sparks, July 21, 1886.

By letter of September 16, 1881, your office held for cancellation the pre-emption declaratory statement of John Jack, for the N. of SE. and S. of NE. of Sec. 36, T. 9 S., R. 12, Helena, Montana Territory.

This action was based upon the report of a special agent to the effect that the claimant had never made an actual, bona fide settlement upon the tract in question. The appeal of Jack is now before me for consideration.

The township plat was filed in the local office November 6, 1872. The declaratory statement was filed February 18, 1884, alleging settlement in May, 1882. In his appeal to this Department Jack furnishes affidavits to the effect that his actual settlement was made upon the land in 1871, before the filing of the township plat, and that his residence thereon has been continuous up to date.

In view of the statements made in these affidavits, I deem it advisable that the claimant be allowed an opportunity to prove their truth. He will accordingly be given sixty days from receipt of notice of this letter to make final proof for the land claimed by him, at which time a special agent of your office should be present in the interest of the gov ernment. If claimant shall fail or refuse or comply with the above directions his filing should then be canceled.

The decision of your office is modified accordingly.

PRE-EMPTION-SECOND FILING.

BYWATER v. HILL ET AL.

A pre-emption claim based on the settlement and filing of one who had previously exhausted his pre-emptive right is illegal, and the transmutation thereof to a homestead entry will not exclude an intervening adverse claim.

Secretary Lamar to Commissioner Sparks, July 22, 1886.

I have considered the case of Charles M. Bywater v. W. C. Hill and J. Vance Lewis, involving Lots 7, 8, 11 and 12, Sec. 4, T. 24 N., R. 4 E., Olympia, W. T., on appeal by By water from your predecessor's decision of August 29, 1883, holding his homestead entry thereon for cancellatior.

It appears from the record that Bywater applied to file a declaratory statement for said tracts on May 8, 1879, alleging settlement October 7 1877. Hill and Lewis applied to locate Porterfield scrip on said tracts on January 8, 1880. At said dates the land was covered by a claim of the Townsite of Seattle, which however was held by the Secretary of the Interior on October 26, 1881 (1 L. D., 501), to be invalid, and Bywater was allowed to file as of date his said offer was made. This he did November 26, 1881, by declaratory statement No. 5313; and on December 19 following he transmuted his filing to homestead entry No. 4113. By his aforesaid decision and by that of July 22, 1882, the Secretary also allowed Hill and Lewis to locate their scrip, as of date of their said offer, subject however to Bywater's right as a pre-emptor; and this they did August 28, 1882.

A contest between the parties was thus brought about, and hearing was had in December 1882, at which the scrip locators attempted to show, first, that Bywater had exhausted his pre-emption right by certain prior filings in Minnesota, and, second, that he had failed to settle on and inhabit the land as required by the pre-emption law. For a reason not stated, the local officers ignored the question of the effect of the prior pre-emption filings, but found that Bywater had complied with the law in respect of residence, and awarded him the land. When the case came before your office on appeal, the question of the prior filings was again ignored, but it was held that Bywater had failed to comply with the law in the matter of residence, and his entry was held for can. cellation. I do not find it necessary to enter into a discussion of the evidence upon the question of Bywater's settlement and residence, but will dispose of the case on that relating to the alleged prior filings.

In his testimony at the hearing, Bywater admitted that he had made. a pre-emption filing in Minnesota about June 1873, and that he had relinquished it subsequently for a consideration of $900 or $1000. (I understand that at page 41 of the trial record he corrected his testimony at page 12 in regard to said relinquishment). I have caused the records of your office to be examined, and it appears therefrom that one Charles M. Bywater filed declaratory statement No. 20,254 for the NW. of Sec. 4, T. 107, R. 36, New Ulm, Minn., alleging settlement June 10, 1870; and that on June 25, 1873, Charles M. Bywater filed declaratory statement No. 22,356 at the same office for the NW. of Sec. 24, T. 107, R. 36, alleging settlement June 20, 1873. The latter filing was canceled by letter ("C") of May 13, 1878, for relinquishment; and the relinquishment, which is on file, was executed September 29, 1877, and is unmistakably in the hand-writing of C. M. By water the claimant in this case. It therefore appears from the record before me that Bywater held a tract of land in Minnesota under the pre-emption law from June 1873 to September 1877, in which last-named month (he stated in his testimony) he removed to Washington Territory. In my opinion he had thereby exhausted his pre-emption right, and his pre-emption settlement and filing on the land herein in controversy were illegal (J. B. Raymond, 2 L. D. 854). This was the status of his claim on January 8, 1880, when Hill and Lewis made their scrip location; and such a claim could not be validated by the subsequent transmutation to a homestead entry, so as to appropriate the land against them (Brooks v. Tobien, 4 L. D., 560). For these reasons your said office decision is affirmed.

I call you attention to the fact that this land appears to be a part of the Maynard donation claim, and that the record shows that a request to issue patent for it to the heirs of Lydia Maynard was on February 27, 1885, refused consideration by my predecessor, because of the pendency of a certain suit in the Supreme Court of the United States involving her title thereto. In the letter transmitting his views to your office is the following passage: "You will please take no action looking to a disposition of these lots until said suit has been decided."

PRACTICE-REVIEW; SURVEY-ACCOUNTS.

J. R. GLOVER.

The decision of the Department rejecting a survey and refusing to pay therefor will not be reviewed, where it appears that application for such action was not made within the proper time, and that prior to such application the townships covered by said survey had been re-surveyed and the work paid for under a subsequent contract.

Acting Secretary Muldrow to Commissioner Sparks, July 22, 1886.

On May 26, 1877, the United States Surveyor General for California executed a contract with Deputy Surveyor J. R. Glover for the survey of Townships 18 to 25 N., Range 10 W., Mount Diablo Meridian, California.

On April 14, 1879, Secretary Schurz made a decision relative to the approval of the accounts of Deputy Surveyor Glover for the survey of these townships, and also upon the question of the approval of said surveys, in which he held that said surveys were not in conformity with law, but in direct violation thereof, and that his accounts for said services should be rejected.

In the decision referred to Secretary Schurz said:

"Viewing the work as a whole, it will be seen that Mr. Glover executed the survey of the 4th standard line in such a manner as to throw the deficiency into the townships which he had the contract for subdividing, instead of allowing it to fall in the place where it naturally belonged. In so doing he violated the law.

"1st. By deducting the deficiency from the east, instead of the west side of the townships north of the 4th standard line; and (2) by dropping a row of sections from the east side of the 4th standard line, and by running the lines of survey in the wrong direction.

"I am of opinion that Mr. Glover is not entitled to pay for the survey of these townships, and that the survey of townships 18 to 25 north, 10 west, should be rejected."

It will be seen from the decision above referred to that Secretary Schurz decided (1), that these surveys were improperly executed, and should be rejected, which was accordingly done; and (2) that Glover was not entitled to pay for that service.

No further action was taken in the matter by Mr. Glover, until nearly six years thereafter, when he filed the present motion, "invoking renewed supervisory action and review of said decision.

upon matters arising since the date of such rejection," to wit: At date contemporaneous with the Glover surveys, Deputy Surveyor Hanson had executed other surveys in California in precisely the same manner, which though rejected were afterwards re-instated and approved; that in 1883, the Commissioner approved similar surveys of townships made 2278 DEC-2

fractional in the same manner, viz: by the junction of the Mount Diablo and Humboldt Meridian; that numerous surveys have since been approved made in precisely the same manner as the Glover survey, and that instructions have since been given for the survey of fractional townships in the same manner.

I do not think that the grounds urged in this motion for review are sufficient to take the case out of the general rule requiring that all motions for review shall be made within thirty days from date of notice of decision.

It appears from the record that the surveyor general of California approved and forwarded the surveys of Glover and Hanson about the same time, and at the same time forwarded a protest from Robert Gardner, charging fraud in the surveys of Glover and Hanson, and that the fractional townships were surveyed so as to drop the 36th section in the interest of a land ring. It is true that Hanson's surveys were rejected because the lands were not of a surveyable character, and not because section 36 was omitted in the surveys, but it does not follow that because the surveys were rejected upon a ground in itself sufficient, that the other objection to the survey was approved. Hanson waived his right of appeal from the Commissioner's decision, and also all claim for pay for his surveys, and subsequently the Commissioner directed the surveyor general to expunge the cancellation of the Hanson surveys and restore the triplicate plats to the U. S. Land Office. This action of the Land Department was induced solely from the fact that Hanson had waived all claim against the United States and had been compensated for his services by the State of California, and not from an approval of his survey.

This subsequent action in regard to the Hanson surveys, and the alleged subsequent action of the Commissioner in regard to similar surveys, will not take this case out of the general rule that all motions for review must be made within thirty days from notice of decision, except when based on newly discovered evidence.

Besides, it appears from the report of your office that since the date of the decision of Secretary Schurz above referred to, and prior to the filing of this motion for review, that the townships covered by the Glover surveys have been resurveyed under another contract, and that the accounts for such surveys have been audited and paid. This fact alone precludes the Department from taking further action in the matter, and is a sufficient ground for refusing to grant the review prayed for. The application for review is denied.