lost school sections, and as the act of March 3, 1853, and the act of July 23, 1866, granting sections sixteen and thirty-six to the State of California, provide that indemnity for lost sections shall be made in accordance with the act of May 20, 1826, it would seem to apply as well to the - State of California, so far as to declare that indemnity lands selected under the act of May 20, 1826, should be lands subject to sale or location at $1.25 per acre.

The tract selected lies within the limits of the Southern Pacific Railroad Company, and is embraced in the sections referred to in the act of March 6, 1868 (15 Stat., 39), restoring lands to market along the line of the Pacific railroads and branches, which provides that the even numbered sections along the route of the several roads shall be rated at $2.50 per acre and subject only to entry under the pre emption and homestead laws.

Mr. Secretary Cox, by decision of July 5, 1870 (12 L. & R., 223), on application of the State of Nebraska, under the internal improvement grant of September 4, 1841 (5 Stat., 453), refused to allow the State to select even numbered sections within the limits of the Burlington & Missouri River Railroad, upon the ground that under the act of March 6, 1868, such sections were rated at $2.50 per acre, and by that act, which was in force when most of the lauds were selected, said sections were subject to entry only under the homestead and pre-emption laws, and that the grant to the State of September 4, 1841, was made before there were any double minimum lands, and hence could not include such lands.

While lands within the limits of a railroad grant reserved from the operation of the grant to the road are not strictly speaking lands held in reservation, or appropriated public lands, they are in a certain sense lands reserved to the United States for disposition under the general settlement laws, and this applies to all such lands whether so reserved by the act of March 6, 1868, or by the various grants to railroads, in which such reservations are made.

Acting Commissioner Curtis, in his decision of August 24, 1875, (2 C. L. O., 86,) allowed the State of California "to select outside the limits of the roads named in the act of March 6, 1868, as indemnity for lost sections sixteen and thirty-six, other lands equivalent in price and quantity, and when lands are selected, the minimum price of which is $2.50 per acre, each acre so selected shall be taken by the State in satisfaction of two acres the minimum price of which is $1.25 per acre."

This conclusion seems to have been arrived at upon the theory that this portion of the public domain is not made exceptional in character, "save in the purpose of compelling it to make double return in money, if sold, or stand for double quantity when demanded in satisfaction of grants of $1.25, public or private."

This is the only decision I have been able to find in favor of the right of the State to select double minimum for single minimum lands, and while it restricted the State to lands outside the limits of the roads named in the act of March 6, 1868, the reasoning would extend the right to all such lands. Referring to the opinion of Secretary Cox, above quoted, he says:

I feel constrained to hold that the even sections within the limits of the railroads enumerated in said act of March 6, 1868, are subject ouly to be taken under the pre-emption and homestead laws, unless where otherwise specially provided.

I fail however to see wherein he shows that other provision has been made in favor of State selections, except by the act of June 8, 1868 (15 Stat., 67), amended by act of March 3, 1871 (16 Stat., 581). In this he says:

The disposition of Congress to depart from the theory deduced from said act of March 6, 1368, in California, is indicated by the 4th section of the act of June 8, 1868, entitled "An act to further provide for giving effect to the various grants of public lands to the State of Nevada," whereby each acre so selected was to be taken in satisfaction of two acres of minimum land specified in the agricultural college act of July 2, 1862. This act of June 8, 1868, was amended by act of March 3, 1871, whereby the State of California was allowed to locate her agricultural college grant on double minimum land, but was required to pay $1.25 per acre in addition, on patent.

While it is clear that by the above act, Congress extended to the States of Nevada and California the right to select under the agricultural grant one acre of double minimum land for two acres of single minimum, yet the fact that Congress found it necessary to provide in that act for the selection of double minimum lands, is to my mind conclusive that in the absence of express provision therefor, it was not intended that such lands should be selected in lieu of lost school sections.

In the matter of school sections, made by the State of Florida, Secretary Teller held, "such selections can not be made of double minimum lands within railroad grants, where the lands lost were minimum price." (10 C. L. O., 110).

Considering the object and character of the grant and of the various enactments, I am of the opinion that the term "lands of like quantity," refers to the character and quantity of the lands lost, and that the State is not entitled to select double minimum lands in lieu of single minimum lands lost in place.

Your decision is affirmed.

RAILROAD GRANT—ACT OF FORFEITURE.

OREGON CENTRAL R. R. Co.

The grant made by the act of May 4, 1870, for the construction of a railroad from Portland to Astoria, and from a point of junction near Forest Grove to McMinnville in the State of Oregon, was in effect a grant for the construction of two roads. The words of limitation in the act of forfeiture, approved January 31, 1885, save to the grant the full complement of lands granted for every mile of road actually constructed.

Said act of forfeiture will be properly executed by adjusting the limits of the road between Portland and Forest Grove separately, and then of the road between the latter point and McMinnville.

Under such adjustment the lands lying within the quadrant formed by the limit lines northwest of Forest Grove must be restored to the public domain.

Secretary Lamar to Commissioner Sparks, April 5, 1887.

An act of Congress approved May 4, 1870, provides as follows: That for the purpose of aiding in the construction of a railroad and telegraph line from Portland to Astoria, and from a suitable point of junction near Forest Grove to the Yamhill river, near McMinnville, in the State of Oregon, there is hereby granted to the Oregon Central Railroad Company, now engaged in constructing the said road, and to their successors and assigns each alternate section of the public lands, not mineral, excepting coal or iron lands, designated by odd numbers nearest to said road, to the amount of ten such alternate sections per mile, on each side thereof, not otherwise disposed of or reserved or held by valid pre-emption or homestead right at the time of the passage of this act. And in case the quantity of ten full sections per mile cannot be found on each side of said road, within the said limits of twenty miles, other lands designated as aforesaid shall be selected under the direction of the Secretary of the Interior on either side of any part of said road nearest to, and not more than twenty-five miles from the track of said road to make up such deficiency.

The second section provided:

And whenever and as often as the said company shall file with the Secretary of the Interior maps of the survey and location of twenty or more miles of said road, the said Secretary shall cause the said granted lands adjacent to and coterminous with said located sections of road to be segregated from the public lands;

Section three provides:

That whenever and as often as the said company shall complete and equip twenty or more consecutive miles of the said railroad and tele. graph, the Secretary of the Interior shall cause the same to be examined, at the expense of the company, by three commissioners appointed by him; and if they shall report that such completed section is a firstclass railroad and telegraph, properly equipped and ready for use, he shall cause patents to be issued to the company for so much of the said granted lands as shall be adjacent to and coterminous with the said completed sections. (16 Stat., 94.)

Said railroad was constructed from Portland, west to Forest Grove, and thence south to McMinnville, and maps of the constructed portion

were accepted by the Secretary of the Interior. Maps of definite location of the line from Forest Grove northwesterly to Astoria were also filed, and withdrawals made there on, but the road was not constructed between these points.

By act of Congress approved January 31, 1885, (23 Stat., 296), it was provided:

"That so much of the lands granted by an act of Congress entitled 'An act granting land to aid in the construction of a railroad and telegraph line from Portland to Astoria and McMinnville, in the State of Oregon,' approved May 4, 1870, as are adjacent to and coterminous with the uncompleted portions of said road, and not embraced within the limits of said grant for the completed portions of said road, be, and the same are hereby, declared to be forfeited to the United States and restored to the public domain, and made subject to disposal under the general land laws of the United States as though said grant had never been made."

On July 8, 1885, instructions were issued to the local officers at Oregon City, for their guidance under said forfeiting act (4 L. D., 15), and therewith was enclosed a diagram showing the limits of the forfeited lands, and of that part of the grant not affected by the forfeiture act. Said instructions in as far as they relate to the diagram are as follows: "Construing the whole act, it appears to me that Congress intended to reserve from forfeiture the lands within granted limits along the whole of the constructed portion of the road. For the present, therefore, the restoration of lands under the act of January 31, 1885, will be limited to the lines shown on the diagram, which is prepared in accordance with the foregoing view."

The diagram shows that the line of the road extends from Portland west to Forest Grove, and at that point turns almost at a right angle, and runs south to McMinnville. From the town of Forest Grove, as located on the plat of public surveys, two lines are drawn, one due north, the other due west, both terminating at the twenty mile limits. The granted lands lying within the quadrant formed by these lines and the twenty mile limits are designated on the diagram as "forfeited." The diagram also shows the forfeited lands on the line from Forest Grove to Astoria.

Said instructions further call the attention of the local officers "to the provisions of the act protecting the rights of actual settlers, and allowing such as are not entitled to make entry under existing laws to purchase, within one year, not to exceed one hundred and sixty acres at one dollar and twenty-five cents per acre." "The persons who, under the provisions of the second section of the foregoing act have a preference right of entry of restored lands are those who, on January 31, 1885, were actual settlers in good faith on the lands claimed by them, and are qualified to make the entry applied for. The preference right may be exercised within six months from date of promulgation of instruc tions."

On December 19, 1885, there was filed in this Department a petition of R. Koehler, receiver of the Oregon and California Railway Company, assignee of said Oregon Central Railroad Company, praying that said instructions, in as far as they applied to granted lands in said quadrant, be revoked. Said petition was referred to your office for exami nation and report.

By letter of May 3, 1886, your office submitted its report, recommending "that the restoration remain in force as per instructions of July 3, 1885," and transmitted a second diagram marked "B," "showing the accurate limits of the grant," to be substituted for the first diagram, marked "A."

Your letter says:

The diagram (copy enclosed, marked "A") was prepared, generally, in accordance with the system of measurement recently adopted by this office in establishing the limits of railroad grants, but the lateral limits were not measured for each subdivision in detail. An accurate measurement is given in diagram marked 'B.' It will be observed by reference to the diagram that the direct course of the road between Portland and the intermediate point mentioned in the act near Forest Grove, is due east and west, or nearly so, that at the latter point the road makes an abrupt turn, and between it and the terminus near McMinnville the direct course is practically north and south. The limits of the grant are determined by measurement from the actual line of the road, but at right angles to the direct line or course between the termini, or from a terminus to some intermediate point named in the granting act, in the present case the point near Forest Grove. Proceeding upon this system, which is believed by this office to be the only true means of accurately determining the limits of the grant, it was found that the quadrant north-west of Forest Grove is not opposite and coterminous to any portion of the road as constructed, but is entirely outside of the grant as it now stands, and the restoration was made .accordingly.

It thus appears that the adjustment of the limits by which the lands in said quadrant were eliminated from the grant was made in accordance with a system "recently adopted" by your office. That system was fully set forth by your office letter of April 30, 1886, in the case of Scott v. Kansas Pacific Railway Company. It was there prescribed as a basis for adjustment under such system that a line be drawn connecting the termini of the road. In the present case that requirement is departed from, and the line is drawn from one terminus to an intermediate point (near Forest Grove), and thence to the other terminus. The system of adjustment proposed in said Scott case was rejected by this Department on March 10, 1887, and the old system adhered to (5 L. D., 468). Said diagrams in as far as they are based on said proposed system are accordingly rejected.

The forfeiting act, however, presents the necessity of re-adjusting the limits of said grant in order to determine the lines separating the forfeited lands from those not affected by the forfeiture. It will be noticed that while the act declares that so much of the grant as is "ad