and plat of the latter. The affidavit of Marron in Spanish, and a translation thereof, is also transmitted; and his character as a man of intel ligence and veracity is vouched for by the deputy.

Wheeler acted upon the statements of Marron and located his survey in accordance therewith, so far as they went, and says in his report that he found the corners without difficulty, and the whole survey in his opinion corresponds with the juridical possession as actually delivered. The area embraced in his survey is 4,269.60 acres, or nearly an entire square league.

If the location of the grant was to be determined alone by parole testimony, that of Marron would be of great value, if not contradicted or impeached. But in this survey we are not authorized to go outside of the decree of confirmation and act of juridical possession, except where there may be an ambiguity, or it is necessary to identify in the field the boundaries described in those instruments.

Neither the original petition of Felipe, nor the grant to him describes the land by boundaries. It is spoken of as "half a league," "occupied with his stock since 1836," "covered by his muralles (enclosures)..... garden and house," but no further description is given until the completion of the act of juridical possession, wherein the boundaries are for the first time stated. The board of land.commissioners and the United States district court confirmed the grant by described boundaries. So that upon confirmation, if not so before, the grant became one of the land contained within certain specified boundaries, containing by esti mation "half a square league"; and it must be surveyed by boundaries and not quantity alone.

The act of juridical possession seemingly describes these boundaries with much precision and definiteness; but, like nearly all kindred proceedings of the Mexican authorities, on a careful examination, it is discovered that there is an absolute want of precision where it is most needed. In fact, the boundaries as located in the act of juridical possession have no definite beginning nor ending. It says, "6 as we stood at one of the boundaries of the garden of the Indian Felipe, the line was drawn east," etc. From this statement it is impossible to learn which one of the boundaries of the garden was the place of beginning, from which the line was run east to the land of Lorenzo Soto. So that, if this was all the record information, it would present such a case of ambi guity as to make it necessary to go into parole proof to find the initial point; and the testimony of Marron ought to throw light on the subject. But where the act of juridical possession is ambiguous, in this respect, the decree of confirmation is clear and unambiguous; for it confirms the grant as follows: "Commencing at the northwest corner of the garden of the Indian Felipe and running east," etc. Thus, then, we have the place of beginning established by the decree as at the northwest corner of the garden and any survey which does not adopt that point as the place of beginning must be rejected. There does not seem

to be any difficulty in finding the garden, as it is located at about the same place in all of the plats of surveys heretofore made. But should there be difficulty in so exactly locating its lines as to determine with reasonable accuracy the north west corner thereof, parole testimony on this point could be taken.

The act of juridical possession is also defective in not showing that the line of measurement or survey was closed and ended at the place of beginning. In describing the fourth or last line, it says, "the line was drawn, course north, there were measured and counted two thousand five hundred varas, which ended upon a hill where stands a large rock." Thus, the place of beginning is described as "at one of the boundaries of the garden," and the place of ending as "upon a hill where stands a large rock." As the place of ending in such a survey should be at the place of beginning, the presumption would be that the "hill where stands a large rock" was the point "at one of the boundaries of the garden" at which the survey begun; but the language is not clear or free from ambiguity upon this point. In fact, Marron says, in his affidavit, that the juridical survey was commenced at a rock, which he showed Wheeler, at the head of the garden, and that the line was then run west instead of east "to a large rock on a hill," and that in reality no line was ever run to the east from the head of the garden, nor was any eastern line, north and south, ever run or the survey closed.

But we are not left in doubt on the point of the continuity of the lines, for the decree of confirmation again comes to our relief and describes the fourth and last line as "running north two thousand five hundred varas to the place of beginning, on a hill where there is a rock." About this language there can be no mistake.

Thus all ambiguity as to the place of the beginning and ending of the lines or boundaries is removed, and parole testimony is not admissible in this respect. The place of beginning is established by the decree with almost mathematical certainty at the northwest corner of the garden, and there the survey must begin and end. As a matter of course unless the place of beginning is established no survey can be made; and about the place in this case I do not think there can be any difficulty. In all of the surveys it is stated that the lines of the old garden are plainly discernible, and its location cannot therefore be difficult of ascertainment. In fact, there seems to be no dispute about it.

In following calls, those mandatory, specific and most important must be gratified, even to the neglect or exclusion of the less peremptory, specific or important. In this case the important and mandatory call in the fourth and last course is "to the place of beginning"; which is judicially determined to be at the northwest corner of the garden, and to that place of beginning the last line must go, even to the neglect, if necessary, of the subordinate, less important and specific call "for a hill where there is a rock." But even this may not be necessary, for Marron says the juridical survey was "commenced at a rock at the head of the garden."

In the survey under consideration the place of beginning was not at the northwest corner of the garden, but a long distance west thereof, as located on Wheeler's plat. In doing this Wheeler follows the statements of Marron and adopts as the place of beginning what the latter pointed out as the northwest corner of the juridical survey and which Wheeler also adopts as his northwest corner. In this there was manifest error. For, as I have shown, there is no ambiguity in the language of the decree of confirmation, as to the place of beginning, to justify the admission of testimony to explain it; and besides the testimony of Marron does not explain, but flatly contradicts, the official "translation" of the act of juridical possession, and also the decree of confirmation, by seeking to establish another place of beginning and ending, one mile at least westward from the place plainly described in the decree. This fatal defect in Wheeler's survey is sufficient to require its rejec tion, and therefore I affirm your judgment in rejecting the same and in ordering a new survey of the grant.

As at present advised, the location by Wheeler of the northeast, southeast and southwest corners would appear to be approximately correct, inasmuch as they are reported as established at points appear. ing to answer in description those recited in the decree; but I prefer not to decide definitely as to these locations at this time. Since the case has been pending here on appeal, several protests and affidavits have been filed by parties claiming to have adverse interests, and who assert that the survey of Wheeler is grossly incorrect, was made entirely in accord with the wishes of the grant claimants, and that the affidavit of Marron was manufactured to fit the case. In fact, it is asserted that since the making of said affidavit, Marron has admitted to more than one witness that he was not present at the juridical survey, but at that made by Hays in 1858. And these protestants assert that the graut has been unduly amplified in all directions by the different surveys, and especially the last, and that the true boundaries of the grant have never been correctly located.

Inasmuch as, in view of the above assertions, there may be some doubt as to the proper location of the other corners heretofore mentioned, the description of which in the decree might be applicable to other points in that neighborhood, and therefore not within the rule asserted as to the unmistakable description of the place of beginning herein adopted, I have concluded it is best that all parties, claiming an interest in the proper location of said grant, should be notified of the time and place of the new survey, and that testimony offered, tending to elucidate the matter should be taken, and the information thus obtained acted upon in making said survey.

With the modifications and additions stated, I approve of the other instructions given by your letter of April 10, 1885, to the surveyor general.

RAILROAD GRANT-ACT OF MARCH 3, 1865.

GREENHALGH v. ST. PAUL M. & M. Ry. Co.

By definite location, and indemnity withdrawal under the additional grant of 1865, the lands covered thereby were excluded from entry and settlement.

Acting Secretary Muldrow to Commissioner Sparks, April 5, 1887.

I have considered the case of James Greenhalgh v. the St. Paul, Minneapolis and Manitoba Railway Company, on appeal by the former from your office decision of October 11, 1883, rejecting his application to make homestead entry for Lots 12, 15 and 16, in the SW. of Sec. 31, T. 150, R. 46, Crookston, Minnesota.

Said application was made on January 2, 1883, and was rejected by the local officers.

By act of Congress approved March 3, 1857, (11 Stat., 195,) a grant of land was made to Minnesota, then a Territory, to aid in the construction of certain railroads, of every alternate section designated by odd numbers for six sections in width on each side of such roads, with a right to select indemnity from odd sections in no case further than fifteen miles from the lines of said roads. By the act of Congress of March 3, 1865 (13 Stat., 526), the quantity of land granted by the act of 1857 was increased to ten sections per mile, with an enlargement of the limits within which indemnity lands might be selected from fifteen to twenty miles. One of the roads thus provided for was the Saint Paul and Pacific. By act approved March 3, 1871 (16 Stat., 588), said road was allowed to alter its branch line as located under the original act, and to locate and construct it "from St. Cloud to a point of intersection with the line of the original grant at or near Otter Tail or Rush Lake, so as to form a more direct route to St. Vincent, with the same proportional grant of lands to be taken in the same manner along said altered line, as is provided for the present line by existing laws." The line thus provided for was known as the St. Vincent Extension, now the St. Paul, Minneapolis and Manitoba Railway.

In the case of Barney v. Winona and St. Peter Railroad Company, the supreme court, in reference to said grants, held that the grant of 1857 "was one by description, that is of land in place and not one of quantity. It was of particular parcels of land designated by odd numbers for six sections on each side of the road; that is, of particular parcels of land lying within certain defined lateral limits to the road and described by numbers on the public surveys. The grant of the four additional sections by the act of 1865 was also a grant of land in place. The intention of Congress was to enlarge the first grant from six to ten sections per mile, the additional four to be taken in like manner as the original six, and subject to the same limitations, and to others that had been or might be prescribed, with a right to select indemnity lands

within twenty miles instead of fifteen. The act did not purport to change the character of the first grant, but to increase its quantity." (117 U. S., 228.)

The limits of the granted lands, and of the indemnity lands are therefore ten and twenty miles, respectively, from the road.

An inspection of the plats of your office shows that lot 15 of the land in question falls within the ten-mile or granted limits for said St. Vincent Extension-St. Paul and Pacific Railroad Company- the right of which attached on December 19, 1871, upon acceptance of its map of definite location. Said Lots 12 and 16 fall within the indemnity limits of said line, notice of the withdrawal for which was received at the local office February 15, 1872. The record fails to show that at the date of the withdrawals or prior thereto there was any claim to the land but that of the company.

The application of Greenhalgh, made long after the rights of the company had attached to the granted lands, and after notice of withdrawal in the indemnity limits, must therefore be rejected. Said decision is accordingly affirmed.

RAILROAD GRANT-RES JUDICATA.

ELWELL v. NORTHERN PAC. R. R. Co.

A final decision against a right asserted under the pre-emption law is no bar to a claim by the same person for the same land under a different law.

Land held and occupied under a settlement claim is not subject to indemnity selection.

Acting Secretary Muldrow to Commissioner Sparks, April 8, 1887.

I have considered the case of Robert Elwell v. the Northern Pacific Railroad Company, involving the W. of SW. of Sec. 9, T. 10 N., R. 39 E., Walla Walla, Washington Territory, on appeal by the company from the adverse decision of your office, dated February 20, 1884.

It appears that the land is surveyed, unoffered land, within the indemnity limits of the withdrawal for the benefit of the Northern Pacific Railroad Company.

Elwell filed declaratory statement January 19, 1871, for the S. of SE. of 8 and W. of SW. 4 of Sec. 9, T. 10, R. 39, alleging settlement July 1, 1870. In 1872 he sought to prove up on his pre-emption claim, but his application was refused, because the land in section nine was within the limits of the grant to said railroad company, and on appeal a hearing was ordered by the Commissioner. At this hearing the railroad company did not appear, and the local officers recommended that the application be granted. This action was not approved by your