Upon the foregoing state of facts it is contended on the part of the appellant that the tract of land in controversy passed to it under its grant by the acts of Congress before mentioned, while on the part of the appellee and your office it is contended with equal energy that the tract came within the exceptions contained in the language of the grant. The grant by the said act of 1866 as made applicable by the said act of 1871 was in the words following, to wit: "That there be, and hereby is, granted to the Southern Pacific Railroad Company of California . . . . for the purpose of aiding in the construction of said railroad. . . . . every alternate section of public land, not mineral, designated by odd numbers, to the amount of... ten al ternate sections of land per mile on each side of said railroad whenever it passes through any State, and whenever, on the line thereof, the United States have full title, not reserved, sold, granted, or otherwise appropriated, and free from pre-emption or other claims or rights, at the time the line of said road is designated by a plat thereof, filed in the office of the Commissioner of the General Land Office." As already stated, the rights of the road vested April 3, 1871; and unless the tract in controversy is within one of the exceptions found in the act, the company's title to it is paramount. The decisions of this Department upon the general question herein involved have not been uniform. Shortly after the rejection of the Hansen survey by the Secretary of the Interior in 1872, on the grounds heretofore specified, the Department acting upon the doctrine announced in that decision held that the Tajauta grant ceased to be sub judice when the Hancock survey became final in 1860; and that lands lying without that survey, though included within the petition for confirmation, and still claimed by the confirmees as being within said rancho, were, nevertheless, "public lands", and passed to the railroad company under its grant, unless they were within some other exception contained in the granting acts. Patent was thereupon issued to the company for a part of said section 17, adjacent to the tract in controversy, and which lands occupied the same status as this, and were in controversy in the case of Southern Pacific Railroad Company v. Garcia (supra) more particularly referred to hereafter. Subsequently this rule was changed and in the cases first referred to in this decision, as well as in some others, the "Tajauta Rancho" was considered as being sub judice up until the final rejection of the Hansen survey in 1872. Following this later rule, another tract adjacent to this tract in controversy and similarly situated was patented in 1880 to H. J. Dull, who had settled there in 1872, in the face of the protest of the railroad company, and which land was involved in the case of Southern Pacific Railroad Company v. said Dull (supra), hereafter re ferred to. In the "Garcia” case (supra) the supreme court of California had under consideration the identical question, involving the "Tajauta Rancho," that is now before me. In that case Garcia had settled on the land in question in 1873 and set up claim to it under the pre-emption law. The company brought ejectment in the State courts, and were defeated in the court below. But the supreme court of the State reversed that judgment, and held, citing 12 Opin. of Atty. Gen'l., 250, that "The publication and approval of the Hancock survey, in the absence of an application to have it returned to the district court, had the same effect and validity in law as if a patent for the land so surveyed had had been issued by the United States.' After that the grant was in no sense sub judice. It was the duty of the surveyor-general to transmit said survey to the General Land Office; and of that office, to forthwith issue a patent for the land in accordance with said survey. The grant became segregated from lands lying outside of said survey." This same question afterwards arose in the "Dull" case (supra). In that case Dull had settled upon the land therein in controversy in 1872, laid claim to it under the pre-emption law, and finally received a patent from the United States in 1880. He then sold and transferred the land to one Scheffelin, an alleged bona fide purchaser for value without notice. The company afterward filed its bill in equity to control the legal title vested in the defendants and sought a decree that defendants hold the title in trust for its benefit. The court in deciding the case says: "If the Tajauta grant had been finally located before that date (the date of definite location of the road), then it was no longer sub judice, and the lands being outside the limits of the final survey were public lands, and subject to grant, and the Congressional grant attached, unless the land was within some other exception." Citing Ryan v. Central Pacific R. R. Co. (99 U. S., 382). And again, speaking in reference to the finality of the Hancock survey and commenting upon the statute of 1860 already quoted, the court say: "The survey thereby became final under the act, after which it was transmitted to the Commissioner of the General Land Office....The language is in the alternative, and puts a survey, become final by publication, upon the same footing with one made final by an 'order, or decree', of the court, and makes it in express terms, in its legal effect, the equivalent of a patent...... When this survey thus became final, under the act, it was res adjudicata, on the location, and there was no authority, or jurisdiction in the Land Department, or in any other officer of the government, to in any way interfere with it. There remained but the mere ministerial duty of issuing the patent which would be convenient evidence of title, already fully vested, under the Statutes, by the survey which had become final under the act, and been made equivalent to a patent. Upon this survey becoming final under the provisions of the act of 1860, the grant ceased to be sub judice; and all lands outside of the survey, thus made final became public lands of the United States, and subject to any other disposition under the law. Nothing can be sub judice before a tribunal, or officer, that has no authority or jurisdiction to adjudge the matter, or to in any way meddle or interfere with it. Any attempt to exercise such authority or any claim made against action already final, and beyond the reach of further jurisdiction, is simply a nullity." This same principle as regards the conclusiveness of the survey become final under the act of 1860, was announced in the cases of Bissell v. Henshaw (1 Sawyer 583), affirmed by the supreme court in Henshaw v. Bissell (18 Wall., 268); Treadway v. Semple (28 Cal., 655); and Wright v. Semple (32 id., 659). The cases all proceed upon the theory that the proceeding in relation to the final determination of the survey under the statute is in the nature of a proceeding in rem and therefore conclusive as against claimants under floating Mexican grants. In the case of Bissell v. Henshaw (supra) the court, in speaking of the proceedings in relation to the confirmation of the survey, say: "The proceeding is somewhat in the nature of a proceeding in rem under the statute, in which all parties are bound to intervene and protect their interests. If not, there could be no object in this provision of the act." And the supreme court on appeal affirmed this doctrine, and say further: "If the defendants, or those under whom they hold, failed to appear and contest the survey, they can not now be heard to question its correctness." The precise question here for consideration has not, so far as I am aware, been passed upon by the United States supreme court in any case. But the decisions before referred to-the one a unanimous decision of the supreme court of California, and the other of the United States circuit court-are of very high authority, and appear to me to rest upon sound principles of law. They will therefore be followed in this decision. For the reasons already set forth, the decision appealed from is reversed. PRACTICE-FINAL ACTION—APPEAL. WILLIAM M. O'DAY. A decision of the General Land Office rejecting final proof and holding the entry for cancellation is a final action from which an appeal will lie. The right to be further heard therein is lost by failure to appeal or apply for review within the proper period. Acting Secretary Muldrow to Commissioner Sparks, February 15, 1887. By letter "C", dated May 25, 1885, you rejected the final proof offered by William M. O'Day on his homestead entry No. 6452, November 7 1882, cash entry No. 660, September 4, 1884, embracing the NW. of Sec. 20, T. 149 N., R. 66 W., Devils Lake, Dakota Territory, and held said entries for cancellation, subject to appeal. August 12, 1885, the register reported that on June 5, 1885, claimant was duly notified of said decision, and that he had failed to take action in the matter. Thereupon, by letter "C", dated September 10, 1885, you canceled said entries, and closed the case. September 12, 1885, there was filed in the local office an application for review of your said decision dated May 25, preceding, which appli cation was by letter dated September 17, 1885, duly transmitted to your office. November 14, 1885, an appeal from your said decision, dated September 10, 1885, was filed in the local office, which appeal was transmitted to your office by register's letter, dated November 16, 1885. You took no action, either in the matter of said application for review, or the appeal, and on December 23, 1885, transmitted the whole record to the department. Your decision of May 25, 1885, was a final decision from which an appeal would lie; and the record which is not disputed shows that claimant was duly notified of said decision. He took no appeal from said decision, neither was his application for review within the time required by the rules. Consequently, under the rules your action of September 10, 1885, properly closed the case. Thereafter an appeal would not lie, neither could an application for review be considered. Rule 112. Said appeal is therefore dismissed. TIMBER CULTURE-RIGHT OF HEIRS TO MAKE ENTRY. SHARRAR v. TEACHMAN ET AL. The right of entry is in the heirs, where the land is found subject to such appropriation, and the legal applicant therefor dies before the status of the land is determined. An entry in the name of, and for the benefit of all the heirs may be made on the ap plication of one of the heirs, without power of attorney from the other heirs authorizing such action. Commissioner Sparks to register and receiver, Lincoln, Nebraska, May 27, 1885. I have considered the appeal of John L. Sharrar from your rejection of his application to contest timber culture entry No. 1571, made August 13, 1884, on the N. of NW. 1, Sec. 3, T. 12 N., R. 7 E., by James H. Teachman, one of the heirs of Joseph Teachman, transmitted with the receiver's letter of August 30, 1884. Said tract was returned as saline land by the surveyor-general in 1862. It is also part of an odd numbered section within the limits of the withdrawal for the benefit of the grant to the Burlington and Missouri River Railroad Company, in Nebraska, by the act of July 2, 1864 (13 Stat., 365). June 17, 1880, Joseph Teachman applied to enter said tract under the timber culture act. A hearing was had as to the character of the land, and on February 8, 1884, this office decided that the land is not saline and that Teachman's application should be admitted, as the railroad company has already received more land on that side (north) of its line than it is entitled to. The railroad company was allowed sixty days for appeal from this decision. Under date of April 18, 1884, you reported that no appeal had been taken; also that Teachman and his wife had both died, and asked instructions. By office letter of May 14, 1884, you were informed that the case was governed by the decision in the case of Railroad Co. v. Sturm (2 L. D., 546), and instructed to allow Teachman's heirs to make entry of the land, if they applied within ninety days from the receipt of notice to that effect. Pursuant to such notice, James H. Teachman made entry as aforesaid, filing with his application an affidavit reciting that he is one of said heirs, named in the will of Joseph Teachman (a copy of which, unverified, is also filed), and that he is authorized by power of attorney from the other heirs to make entry in his own name for the benefit of, and in trust for them. Sharrar filed his timber culture application for the land with his ap plication to contest said entry. You rejected his application, for the reason that the entry had been allowed under instructions from this office, and there was no ground for contest, whereupon he appealed. The grounds of appeal are that there is no law under which the right of a person to enter land descends on his death to his heirs, or under which such right can be devised; that one of the heirs of Joseph Teachman is insane, and has no guardian, and that said James H. Teachman has no authority to act for him; that the requirements of office letter of May 14, 1884, have not been complied with ; that said entry is contrary to law; and that a hearing should be had to enable contestant to show that said James H. Teachman was not authorized by power of attorney to act for said heirs. Sharrar claims to have been in possession of the land since April 5, 1884. It is contended that this case differs radically from that of Sturm; that the land in controversy there was part of the public domain, subject to entry at the date of the application, and the decision simply held that en try should have been allowed, and an application which should have been admitted is equivalent to one duly placed of record; that Sturm's application was, upon reversal of the decision of the local officers, entitled to full force and effect as an entry from the date of its tender; that at the time Joseph Teachman made his application the land in question was reserved and could not be appropriated under the timber culture act, or ordinary settlement laws, until its agricultural character had been determined; that Teachman, having died before the decision of February 3, 1884, became final, never had any right to the land; that had he lived his appli cation would only have dated from May 14, 1884, when said decision be came final; and that he never performed any act on the land in pursuance of any rights previously acquired and had no rights which could descend to his heirs. Also, that Sharrar is the only person who has ever been in possession of said land. Sturm applied to make timber culture entry of a tract of land in the limits of a railroad grant, and his application was for that reason rejected by the local officers. He appealed, claiming that the land was |