decision of Secretary Teller, because such declaration is a matter of record, and the law contemplates that it must be made before an officer charged with the duty of recording it and having charge of the records of a court, but it does not follow that clerks of the district courts of counties in which no courts are held can not perform other acts and duties by virtue of their appointment, and especially to administer oaths, because the first section, chapter 20, of the Revised Code, declaring what officers are authorized to administer oaths, embraces "Clerks of the supreme and district courts and their deputies, within their respective counties."

I therefore concur in the opinion of my predecessor that final proof in homestead cases may be made before clerks appointed under section 1, chapter XIV code of Dakota.

It appears, however, that this chapter was repealed March 7, 1883, and in lieu of it the law provides that—

"There shall be elected at the same time as provided in this act for the election of district attorneys for each organized county, in this territory, a clerk of the district court, who shall be a resident of the county for which he is elected and a qualified voter thereof, and shall possess the necessary qualifications for holding office, as provided in section 47, chapter XXVII, of the Political Code."

Section 2 then provides

"Said clerks of the district court shall qualify within ten days after receiving their certificate of election, and immediately after qualifying shall enter upon the discharge of the duties of their offices."

The only change made by the act of March 7, 1883, seems to be in providing for the election instead of appointment of said clerks by the judge of the district court.

I am therefore of the opinion that said clerks are officers before whom final proof may be made, as provided by acts of Congress of March 3' 1877, and the act of June 9, 1880.

RAILROAD GRANT-TERMINAL LIMIT.

NORTHERN PAC. R. R. Co.*

By the terms of this grant the road was divided for the purposes of boundary and patent into sections of twenty-five miles.

The line fixing the terminal limit of the grant should be run at right angles to the general course of the last section.

Assistant Secretary Jenks to the Secretary of the Interior, August 13, 1885.

In conformity to your request that I should investigate the legal principles involved in the matter of the terminal limit of the Northern Pacific Railroad at Wallula, I have the honor to submit the following: This is an appeal by the Northern Pacific Railroad, by its attorney, from an order of Commissioner Sparks of the Land Office, dated the

* Omitted from Vol. IV.

11th day of April, 1885 (3 L. D. 478)* by which an order made by Acting Commissioner Harrison, of the 20th day of March, 1885, changing the terminal limit of the land grant to the railroad on the east side of the line of the road, was revoked. The change would include in the grant about ninety-seven thousand acres of land south of the present and former limit.

The principal error assigned on the appeal is:

"The Commissioner erred in not directing that the terminal limits should be in a line at right angles to the general course and direction of the road, or the general course and direction of the road between Wallula Junction and Spokane Falls in Washington Territory, the latter being the nearest point at which terminal limits have been previously adjusted."

This is an appeal, not from an order fixing the terminal limit, but from an order revoking an unexecuted order, by which a former order fixing the limit was changed, and a new limit fixed. If the new limit be wrong, then the order of revocation should be sustained.

Considered first only in the light of the Congressional grant, the question to be decided would be: Where is the terminal limit of the grant of the United States to the Northern Pacific Railroad, at the Southwestern terminus as now established by the railroad company at Wallula, in Washington Territory.

If it be conceded that the railroad may lawfully stop at that pointwhich will neither be discussed, nor decided-then, one point in the terminal line is fixed at the terminus of the road.

The inquiry then becomes a question of boundary, with one point in that boundary fixed. As the two side lines, or lateral limits are fixed by the grant and the middle point of the end line fixed, the only remaining point to be determined is: What is or should be the course of the end or terminal line. If the course of the end line has been already established, the investigation is then narrowed to the solution of the question as to where the line has been fixed.

If it has not been already fixed by the action of the government by its authorized officers, and the railroad company, by the action or assent of its authorized agents, it would then devolve upon the government to decide where it should be established by the terms of the grant.

The material parts of the grant are the following provisions of the third section act of the 2d day of July, 1864 (13 Stat., 367).

"There is granted to the Northern Pacific Railroad Company. every alternate section of public land, not mineral, designated by odd numbers to the amount of twenty alternate sections per mile, on each side of said railroad line, as said company may adopt, through the territories of the United States . . . . . whenever on the line thereof the United States have full title, not reserved, sold, granted or other wise appropriated, and free from pre-emption or other claim or rights

* See 3 L. D. 450.

at the time the line of said road is definitely fixed and a plat thereot filed in the office of the Commissioner of the General Land Office."

By the fourth section of the grant it is enacted:

"That whenever said Northern Pacific Railroad Company shall have twenty-five consecutive miles of any portion of said railroad and telegraph line ready for the service contemplated, the President of the United States shall appoint three commissioners to examine the same, and if it shall appear that twenty-five consecutive miles of said road and telegraph line have been completed, in a good, substantial and workmanlike manner, as in all other respects required by this act, the Commissioners shall so report to the President of the United States; and patents of land as aforesaid shall be issued to said company, confirming to said company the right and title to said lands, situated opposite and coterminous with said completed, section of said road.... And so, from time to time, whenever twenty-five additional consecutive miles shall have been constructed."

From these provisions, as the railroad company completed each consecutive twenty-five miles of road, upon report of the commissioners, the grant must be confirmed by patents for the land on each side of the road corresponding with the section of the road completed. If it is to be confirmed by patent, as each twenty-five miles is constructed, a determination of boundary must precede the patent, the presumption would arise that either at or before the time the inspection was made, the law contemplated that the terminal limit of the twenty-five miles inspected was to be fixed. By the provisions of the grant, such inspection would fix the terminal limit of land to be patented and thus, for purposes of patenting, the road as constructed, would be divided in patenting sections of twenty-five miles each, the boundary of each of such sections fixed at or before the time of inspection.

The grant then having divided the road into sections of twenty-five miles for purposes of boundary and patenting, in fixing the boundary of this last section by the provisions of the grant alone, (excluding all extraneous facts,) as the courses of the road are various, some general course must be adopted from which to fix the terminal line.

The subject of the course to be fixed was considered in a decision rendered by Secretary Thompson, on the 23d of February, 1858, reported in 1st Lester, page 527, also in the case of the Flint and Pere Marquette Railroad, by Secretary Kirkwood, on September 1, 1881 (1 L. D., 408); and also was incidentally discussed by the supreme court of the United States in the case of the United States v. the Burlington & Missouri River Railroad, (8 Otto, 334). The substance of the rulings in the several cases is: "The land is taken along such line in the sense of the statute, when taken along the general direction or course of the said road within lines perpendicular to it at each end.”

Then if this rule is to be applied (as it has been already shown, only the last twenty-five miles of the road under the terms of the present grant can be considered) the terminal line should be run at right angles to the general course of the last twenty-five miles of the road.

Thus far the question has been discussed only under the terms of the grant. But since the grant, certain action has been had, which would on this question seem to be entitled to some consideration.

On the 4th day of October, 1880, a map of definite location as fixed by the company from Spokane Falls to Wallula was approved by the Secretary and filed. On the 16th of August, 1881, Commissioner McFarland fixed the terminal limit at Wallula, by the general course of the last twenty miles, filed a map of the land to which the railroad company was entitled, with the limit fixed and marked thereon, aud with a letter of instructions forwarded a copy of the map to the land office at Walla Walla. To this map and definition of boundary no objection seems to have been made by the company till after the 11th day of April, 1885, at which time the order asked to be revoked in these proceedings was made.

On the 20th day of March, 1885, Assistant Commissioner Harrison (at the instance of persons who claimed to have acquired rights under the railroad company, south of the limit fixed by Commissioner MeFarland) ordered a change of the limit of the 16th of August, 1881, on the eastern side of the railroad line about twenty six degrees, making it a due east and west line, thereby throwing the limit further south and enlarging the area of the grant of the railroad, about ninety-seven thousand acres, and furnished a plat of such change with a letter of instructions to the land office at Walla Walla.

On the 11th day of April, 1885, Commissioner Sparks revoked the order of Commissioner Harrison and restored the line as fixed by Com. missioner McFarland. Notice of this revocation was communicated to the officers of the Walla Walla land office by letter and telegram on the 11th day of April, 1885.

It does not appear that any intervening rights accrued to any one between the act of Acting Commissioner Harrison and the revocation by Commissioner Sparks. On the 21st of July, 1885, the Northern Pacific Railroad Company, by its attorney and general counsel, appealed from the decision of Commissioner Sparks, revoking the order of Commissioner Harrison, and restoring the terminal limit as fixed by Commissioner McFarland on the 16th of August, 1881.

On the argument of this appeal, Mr. Morrison, who appeared to represent "a number of settlers and others," and who on their behalf, on the 12th of March, 1885, had filed a memorial asking for change of the terminal limit, but who took no formal appeal, urged the change as made by Acting Commissioner Harrison, on the ground that they had settled upon the land south of the limit as established on the 16th of August, 1881, and held under the grant to the railroad company, and that great injury would be done these settlers if the grant was not enlarged to include the lands then settled upon.

As the order of Commissioner Harrison, of the 20th of March, 1885,

enlarging the limit was wrong, then the order of Commissioner Sparks of the 11th of April, 1885, revoking that wrongful order, was right.

The only question then that was to be determined being, was the order of the 20th of March erroneous? It is concluded, 1st, The basis of that order was erroneous, in that, instead of taking the general course of the last section of twenty-five miles, as required by the statute, the whole length of one hundred and ninety miles from Spokane Falls is taken arbitrarily as the general course of the line to which the limit was drawn at right angles.

The order was erroneous, in that, while it left the railroad on the west side of the line of the road the full benefit of the limit, as fixed on the 16th of August, 1881, it gave it on the east side about twentyseven thousand acres, additional land.

The order was erroneous, in that it made the southern terminal limit through the terminus at Wallula a broken instead of a straight line, and included in the grant ninety-seven thousand acres more land than would have been included by a straight line.

The order was erroneous, in that the petitioners, at whose instance the change was made, not being authorized to represent the railroad, was made without sufficient parties on record to justify the action of the Commissioner.

The fact that the alleged settlers bought from the railroad company that which did not belong to the raiiroad company, but was the property of the government, would not furnish any substantial equity which the Commissioner of the Land Office should have recognized. It was not shown that the officers of the land office authorized to represent the government did any act, or neglected any duty, by which the settlers were misled.

A recognition of the doctrine, that a purchase from one who had no title, would establish an equity against the real owner, would be subversive of all principle. I think, therefore, the position of the appellant is untenable.

DECISION OF SECRETARY LAMAR.

AUGUST 15, 1885.

Upon consideration, the errors, assigned as ground for appeal, are overruled, and the order of Commissioner Sparks, of the 11th day of April, 1885, is affirmed.

On application of the proper party, the subject of readjusting the limit, according to the principle above indicated, might with propriety be considered.