RESTORATION OF FORFEITED RAILROAD LANDS.

ATLANTIC & PAC. R. R. Co.

The lands within the Territory of New Mexico, formerly granted to this company, but declared forfeited and restored to the public domain by the act of July 6, 1886, are opened to entry and settlement, and the price of such lands as well as the even numbered sections is fixed at $2.50 per acre.

The price of the alternate ungranted sections, having been increased by statute, cannot be reduced on the forfeiture of the grant, in the absence of express authority. The odd numbered sections forfeited by said act within the conflicting limits of this road and the Southern Pacific, are withheld from entry pending an equitable settlement of the rights of the latter company.

Secretary Lamar to Commissioner Sparks, December 10, 1886.

Your letter of November 12, 1886, in relation to the restoration to the public domain and fixing the price of the forfeited lands heretofore granted to the Atlantic and Pacific Railroad Company, has been received, and the suggestions and recommendations therein made duly considered.

The act of July 6, 1886, (Chap. 637, pamphlet copy, p. 123) provides that all the lands, with certain exceptions named, theretofore granted to the Atlantic and Pacific Railroad Company, "which are adjacent to and coterminous with the uncompleted portions of the main line of said road . . . . . be and the same are hereby declared forfeited and restored to the public domain."

You state that "the portions of said road, which remain uncompleted, in any land grant State or Territory, are situated in the Territory of New Mexico-between Isleta and the eastern boundary of said territory-and in the State of California, between the Colorado River and San Buenaventura on the Pacific."

You also state that in your "opinion said act, not only forfeited the lands in question, but rendered them subject to settlement immediately upon its passage." In this view I concur. You call attention to the fact that the act of forfeiture fixes no price at which the restored lands are to be held, and you say, "The even numbered sections have heretofore been rated at double minimum price of $2.50 per acre, but as the road has not been completed, and the grant has been forfeited, the reason for such enhanced rating has ceased to exist." You thereupon recommend that, as to the forfeited lands in New Mexico, you be au thorized to instruct the local officers of the different districts in which the same are situated," to give notice by publication for at least thirty days that said lands have been restored, and that the books of their respective offices are open for entry of the same at the rate of $1.25 per acre, under the pre-emption and homestead laws and other laws relating to unoffered lands, and that the even numbered sections are reduced in price to $1.25 per acre.

I approve of said recommendations, except in so far as they relate to the price to be fixed for said lands, whether in the odd or even sections.

The act of July 27, 1866 (14 Stat., 292), making the grant of land to aid in the construction of the Atlantic and Pacific Railroad, contained no provision raising the price of the even numbered or ungranted sec tions within the limits of said grant, but said sections were raised to the price of $2.50 by virtue of the act of March 3, 1853 (10 Stat., 244), now to be found in section 2357 of the Revised Statutes. The odd numbered sections being granted to the railroad, of course there was no legislation affecting their price.

The price of the even numbered sections being thus raised by act of Congress, must remain as fixed thereby, unless some like authority be shown requiring and empowering their reduction. This reduction or authority to reduce is not to be found in the forfeiting act of July 6, 1886, either by expression or implication, its provisions being shortly stated in one paragraph and simply declaring the forfeiture, and that said lands be "restored to the public domain," as before quoted. If that act, instead of forfeiting only the lands coterminous with the uncompleted portions of the Atlantic and Pacific road, had repealed the granting act entirely, it could have been contended, with plausibility at least, that all the lands, along the line of said proposed road, were thenceforth to be treated as though the grant had never been made, and therefore were to be disposed of at $1.25 per acre-the price at which they would have been disposed of, if the grant had never been made. But that is not the present case.

The original act is yet in force, with the provisions of the act of March 3, 1853, appreciating the price of the even numbered sections, attaching to them whenever they became identified by the definite location of said road, as fully as though part of the granting act. The effect of the forfeiting act being only to restore to the United States the full title to the odd numbered sections along certain portions of said line; but in no wise to affect the even numbered sections. This being so, I can find nothing in the repealing act to authorize the reduction recommended.

The only other provision of law that I am aware of having any relation whatever to the matter, or, which is claimed to have any bearing upon it, is section 2364 of the Revised Statutes, a revision of the act of July 2, 1864 (13 Stat., 374). This section provides that "whenever any reservation of public lands is brought into market, the Commissioner of the General Land Office shall fix a minimum price, not less than $1.25 per acre, below which such lands shall not be disposed of."

The word "reservation," as here or elsewhere used in relation to the public lands, applies to such lands as, for any reason or purpose, have been excepted or reserved from settlement, entry, or other disposal, under the provisions of the general land laws. The even numbered

sections within railroad grants are not thus reserved, though spoken of in some granting acts as "reserved" to the United States from said grant; but on the contrary are universally held, and sometimes, as by the sixth section of the granting act in this case, expressly declared to be subject to settlement, etc., under the general laws; differing only from other public lauds as to the price to be paid for them. The even numbered sections in the present case never having been in " reservation," but always open to disposal to the public, I am clear the above section of the Revised Statutes is not applicable to them.

In the previous legislation of Congress, when it has forfeited grants to other roads, no fixed rule has been followed, or well could be, because of the varying circumstance connected with the forfeited grant or the restored lands. Of the statutes, declaring such forfeiture, examined by me, I find that in most of them there has been no special provision in relation to the price at which either odd or even sections were thereafter to be sold, nothing being said on the subject. In other of the acts the restored lands were "to be disposed of hereafter as other public lands," or "dis posed of under the general land laws." In the act of January 31, 1885 (23 Stat., 296), forfeiting the grant to the Oregon Central, the price of the lands was fixed at $1.25 per acre, for both odd and even sections. By the act of February 28, 1885, forfeiting the grant to the Texas and Pacific, the price of the restored lands was fixed at $2.50 per acre. Nor has the practice of the Land Department been uniform in the cases examined-the only ones I am aware of.

In the case of the New Orleans, Opelousas and Great Western Railroad, forfeited by act of July 14, 1870 (16 Stat., 277), the price of the odd sections was fixed at $1.25, and no action was taken in relation to the even sections, the act providing only for the disposal as in the case of other public lands. In the forfeited grant of the Placerville and Sacramento Valley Railroad, April 15, 1874 (18 Stat., 29), both odd and even sections were placed at $1.25 per acre, though no reduction of price was made by the forfeiting act, but only a direction to dispose of the lands as public land. In the case of the Stockton and Copperopolis Railroad grant, forfeited June 15, 1874 (18 Stat., 72), the same action was taken, in the absence of authority conferred by the forfeiting act In the case of the St. Louis and Iron Mountain Railroad, lands for feited by act of June 28, 1884 (23 Stat., 61), the odd sections were re stored at $2.50 per acre, and no change made in the price in the even sections, in the absence of any provision, other than that the lands were "to be disposed of under the general laws." And in the cases of the Oregon Central and the Texas and Pacific the special provisions of the forfeiting acts were followed.

Finding no legislative enactment, nor uniform line of departmental rulings, which might have weight as establishing a rule, I must decline to assent to the reduction of the price of the even numbered sections, below the sum of $2.50, at which they were fixed by act of Congress.

With regard to the odd-numbered or granted sections, the case is different. The price of these was in no way affected by the grant to the railroad company. They were reserved by the act making that grant from disposition under the general land laws, for the purpose of aiding in the construction of the road. By the act of forfeiture they are now taken out of that "reservation" and restored to the public domain, and I think under existing law, as now found in section 2364 of the Revised Statutes, before quoted, authority is given to fix the price of such lands, provided it be not less than $1.25 per acre.

Inasmuch as there is, in my opinion, no authority to reduce the price of the even numbered sections below $2.50, it would obviously be very unwise to fix the price of the odd numbered sections, side by side with the former, below the same price. You will, therefore, instruct the local officers in New Mexico that the even and odd numbered sections within the forfeited limits will be disposed of at $2.50 per acre, in accordance with the views herein expressed.

With regard to the forfeited lands along the uncompleted portions of the line of the Atlantic and Pacific Railroad in California, "between the Colorado river and San Buenaventura on the Pacific," you report, and one of the diagrams forwarded shows, that much of said lands are within the con flicting granted limits of the Southern Pacific Railroad Company.

In relation to this matter you say:

"Inasmuch as the grants to these companies were made by the same act, it follows, under the rule laid down by the Supreme Court, that the latter company is entitled to an undivided moiety of all lands in said conflicting limits. In allotting to the Southern Pacific Railroad Com. pany its share of these lands, every other alternate odd numbered section (as sections 1, 5, 9, etc.,) can be set apart for said company, and the remaining odd numbered sections (as sections 3, 7, 11, etc.,) restored."

You thereupon suggest, "that the restoration of the lands in said conflicting limits be deferred until the proper officers of said company can be communicated with, and its formal consent to this or some other equitable division, secured." You also recommend that as to the remaining lands within the conflicting limits of the withdrawal for the Southern Pacific Railroad Company you be authorized to call upon said company to show cause why such lands should not be restored, and "that pending such action, the restoration of all lands within conflicting limits be deferred."

Understanding these recommendations to relate entirely to the oddnumbered sections, within the conflicting limits of the two roads; as much as I regret the necessity for any delay in the premises, I believe the course proposed is wisest in view of the complications existing, and therefore approve said recommendations. But prompt action should be taken so that the forfeited lands be opened to the public at the earliest possible day.

PRACTICE-CONTINUANCE-GOOD FAITH.

BENEDICT v. HEBERGER.

A continuance to ascertain the whereabouts of the entryman and procure his attendance properly refused where he was represented by counsel at the hearing, and the motion therefor was not filed until after the contestant had submitted his testimony.

Good faith not consistent with evident evasions of the law.

Acting Secretary Muldrow to Commissioner Sparks, December 11, 1886.

I have considered the case of Albert V. Benedict v. William Heberger, involving the SW. 4 of Sec. 30, T. 117 N., R. 60 W., 5th P. M., Huron, Dakota, on appeal by the last named from your office decision of May 15, 1885, holding for cancellation his pre-emption cash entry of the tract described.

It appears that Heberger filed his declaratory statement October 9, 1882, with allegation of settlement August 9, 1882, and that he made final proof and payment for the land April 10, 1883. Subsequently, Benedict filed in the local office his corroborated affidavit, charging in substance that Heberger's proof was false and fraudulent and his entry illegal, in that he was at date of filing under twenty-one years of age, "and consequently not a qualified pre-emptor; also that he never established a residence upon the tract, nor did he cultivate and improve the same as required by law. Said affidavit was, on January 4, 1884, forwarded to your office, where, after an examination of the charges, direction was given that a hearing be ordered to afford Mr. Benedict an opportunity to submit evidence in support of his allegations.

Hearing was duly had, at which contestant appeared and submitted testimony to show that claimant had not built a habitable house upon the tract and that he had not resided thereon.

The entryman was not present at the hearing, nor was any testimony offered in his behalf. He was, however, represented by attorneys, who cross-examined plaintiff's witnesses at considerable length. When the examination of said witnesses was concluded, counsel for defendant moved a continuance to enable them to ascertain his whereabouts and procure his attendance. This motion was overruled by the local office and your office decision sustains the ruling. It also affirms the finding of the local office, to the effect that the allegations of plaintiff are sus tained by the testimony, and that the entry should be canceled. .

After a careful examination of the record as made in the case, I concur in the conclusion arrived at by your office. To my mind, it is manifest from the evidence that Heberger never resided upon the tract, and that his so-called settlement, residence and improvements were a mere pretence, with a view to acquiring title to the tract under color of 2278 DEC-18