predecessor, Commissioner Drummond, who, on July 21, 1873, ordered that the declaratory statement be canceled as to the W. of SW. 1 of section 9-holding that Elwell, having failed to file his claim within the time required by law, three months after settlement, the adverse interest of the railroad company attached under the withdrawal of December 8, 1870. There being no appeal from this decision, the case was closed and the declaratory statement canceled September 4, 1884, as to the odd numbered section.

On July 17, 1875, Elwell transmuted his filing on the S. of SE- of section 8 into homestead entry No. 334, made final proof and entry thereon November 2, 1881, for which patent was duly issued to and accepted by him April 10, 1882.

The withdrawal of December 8, 1870, for the benefit of the Northern Pacific Railroad, which was held to have precluded Elwell from holding the land under his filing of January 19, 1871, was made on map of general route and withdrew the land for forty miles on each side of the road, or only within the granted limits. On February 21, 1872, the company filed another map, containing "a preliminary line" of said road, or general route, which entered Washington Territory on the east at a point over one hundred miles further north than the former, but converging so that at the Columbia river the lines of both routes became substantially the same. At the request of the company, withdrawal was made under this second map on March 30, 1872; and the land in controversy was within the lines of both withdrawals. Afterwards, on October 4, 1880, the line of said road was definitely located, when another withdrawal, in conformity with the map of definite location, was made, when the land in controversy was found to be outside of the granted but within the indemnity limits, for which withdrawal was made November 30, 1880.

On January 5, 1884, the company included the said tract in its list of indemnity selections. Against this selection, on January 31, 1884, Elwell filed protest in your office, alleging that he has continued in possession of said SW. 4 of section 9 ever since he first made settlement thereon in July, 1870; that up to January 1, 1876, together with his family, his actual residence was upon the same; that it has always been under one inclosure with the S. of SE. 1 of section 8, and with the latter worked as one farm; that he has buildings and improvements of large value on said W. of SW. of section 9, and seventy acres thereof under cultivation. He insists that error was committed in refusing to permit him to make final proof and entry of the tracts in both sections, and he prays that he may now be allowed to surrender his patent for the S. of SE. 1 of section 8, amend his homestead entry by including therein the W. of SW. of section 9, and that a new patent may be issued to him covering both of said tracts. Your predecessor approved of this application of Elwell and directed that the same be

granted. From this action the railroad company has appealed; and on its appeal the case is now before me.

I do not regard the present case as coming within the rule of res adjudicata, for the application of Elwell, now under consideration, is that he be allowed to enter and patent the land under the homestead laws, thus seeking to obtain it under a new and different right from that under which his former application was made, and he is entitled to have his present application considered as fully and fairly as though none other had ever been made by him for that tract, and acted upon by the land officers. See St. Paul, M. & M. Ry. Co. v. Paulsen (4 L. D., 232) ; Hastings & Dakota Ry. Co. v. Whitnall (ib., 249); Olson v. Larson (ib., 403); Holmes v. N. P. R. R. Co. (5 L. D., 333).

The settlement of Elwell, July 1, 1870, excepted the land from the first withdrawal of December 8, 1870, and also from the second one of March 30, 1872, when his filing was actually of record, and the land was not within the granted limits of the third withdrawal, made on the definite location of the road. So that though the land within the limits of the withdrawal of December 8, 1870, has not been restored to the public domain, and the tract in question is within those limits, the company acquired no right to it by virtue of either that withdrawal or the one of March 30, 1872, because it was not then free from the pre-emption claim of Elwell. And, because of the continuing occupation of Elwell, it was not subject to the selection of the company as indemnity land, on January 5, 1884.

In the consideration of the present application the former judgment. should neither estop nor prejudice the claims of Elwell, but should rather advance them, because explaining the delay in their presentation. The continuous occupation and inclosure of the land, since the first settlement, has been a daily, persistent and aggressive assertion of right thereto, and, since the former decision, a constant protest against its correctness. These are facts which may be properly considered in dealing with a case of this sort.

The evidence of Elwell's settlement, occupation, inclosure and culti vation of said land not being traversed, may be treated as being conceded by the attorney for the company; and inasmuch as the showing in relation thereto is satisfactory to your office, further hearing is not ordered, but I approve of the proposed action in canceling the selection of the company, accepting the surrender of Elwell's patent and allowing the proper amendments, so as to include the land in controversy in a new patent to be issued to him.

The judgment of your office is therefore affirmed.

FEES OF LOCAL OFFICERS-ACCOUNTS.

CIRCULAR.

Acting Commissioner Stockslager to registers and receivers, August 18, 1886.

Your attention is called to the following extract from the act making appropriations for sundry civil expenses of the government for the fiscal year ending June 30, 1887, approved August 4, 1886:

"All fees collected by registers and receivers, from any source whatever, which would increase their salaries beyond three thousand dollars each year, shall be covered into the Treasury, except only so much as may be necessary to pay actual cost of clerical services employed exclusively in contested cases, and they shall make report quarterly, under oath, of all expenditures for such clerical services, with vouchers therefor."

In accordance with the act of Congress, as quoted, receivers will, from and after August 1, 1886, deposit to the credit of the Treasurer of the U. S. all moneys received for reducing testimony to writing, and all other fees which, by the act of March 3, 1883, were authorized to be retained by registers and receivers (except the amount payable for clerk hire, in accordance with the terms of the law), as other public moneys of the United States received from fees and commissions are deposited. All such fees will be reported in detail on the receivers' monthly detailed account-current thereof (Form 4-146), and accounted for in their monthly and quarterly accounts.

The fee of one dollar, authorized to be retained by the register for giving notice of the cancellation of an entry, as provided by the act of May 14, 1880, will be paid to the receiver, who will deposit it with the

other fees.

Receivers will render special disbursing accounts for the sums paid out for clerical services rendered in contest cases, which must be verified under oath and supported by the proper vouchers.

The circular of this office, dated July 20, 1883,* and all subsequent instructions not in accordance with this circular are hereby modified accordingly.

You will please acknowledge the receipt of this circular.
Approved :

L. Q. C. LAMAR,
Secretary.

* See 2 L. D. €62.

PRIVATE CLAIM-SCRIP—JUNE 2, 1858.

STEPHEN SWEAYZE.

The authority of the surveyor-general to issue scrip under the third section of the act of June 2, 1858, is subject to the supervisory jurisdiction of the Commissioner of the General Land Office, acting under the direction of the Secretary of the Interior. Indemnity-scrip can issue under said act only on the existence of two conditions: (1) The claim must have been confirmed, and (2) it must, for some reason named in the act, remain unlocated and unsatisfied.

An unsatisfied claim for a specific quantity of land, founded on an order of survey made in 1795, with no specific location of the land, is a proper basis for the issuance of scrip under said act.

The uncontroverted finding of the surveyor-general that a claim has not been located, or in any manner satisfied, shall be taken as satisfactory proof of such fact. The applicant for scrip must show himself to be the legal representative of the original confirmee.

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

The several acts of Congress approved respectively March 2, 1805 (2 Stat., 324), April 21, 1806 (id., 390), and March 3, 1807 (id., 440), provided for ascertaining and adjusting the titles and claims to land within the territory of Orleans, and the district of Louisiana, and pursuant to these acts Commissioners were appointed to investigate and report upon such titles and claims. In the report of the Commissioners, thus appointed, for the western district of Louisiana, dated May 1, 1815, the private land claim of Stephen Sweayze, numbered 137, class B, among others, was recommended for confirmation. See American State Papers, Green's Edition, Vol. III, pp. 109 and 133.

This report and recommendation is in the words following, to wit:

Stephen Sweayze claims four hundred arpens of land in Attakapas, by virtue of an order of survey dated 9th December, 1795. The notice is accompanied by the petition of said Sweayze, inhabitant of Natchez, dated 20th November, 1795, for ten arpens of land on each side of the gully, called Cypremart, with the small depth that may be found, bounded on one side by land of Samuel and John Bell, and on the other by the royal domain. Subjoined to the petition is the order of survey by the Baron Carondelet, dated 9th December, 1795, for the ten arpens front solicited, with the depth that may be found, not exceeding forty arpens. A plat of survey by William Atchison, dated Attakapas, 16th December, 1796, embracing four hundred arpens in a square form, is also filed. No proof of occupancy has been offered, and the claim is reported on that account. The Commissioners, believing it to be a claim. which would have been deemed valid under the Spanish government, recommend its confirmation in conformity with the tenor of the order of survey, giving ten arpens front on said gully, with the depth of twenty arpens on each side embracing an area of four hundred arpens.

This claim was confirmed by the first section of the act of Congress, approved April 29, 1816, (3 Stat., 329), but it seems never to have been located, as will more fully appear hereafter.

On the 14th of August, 1877, the surveyor-general of Louisiana issued certificates of location on this claim under the provisions of the third section of the act of June 2, 1858 (11 Stat., 294), and on the same day transmitted them to your office for approval and authentication. These certificates, are numbered 357 A to 357 D, inclusive, certificates A, B, and C being for eighty acres each, and certificate D for 100.28 acres― in all 340.28 acres, or 400 arpens, French measure-and were issued upon the application of D. J. Wedge, who asserted title to the Sweayze claim under and by virtue of the proceedings of a succession sale of the estate of the deceased confirmee, alleged to have been had on the 29th day of August, 1872, in pursuance of a decree of the parish court in and for Lafayette parish, in the State of Louisiana.

The surveyor-general, in his letter of transmittal before mentioned, makes the following report in the matter of this claim:

I have the honor to state that upon a careful and complete examination of the maps of surveys, records, and other data in this office, I find that this claim has never been located. I also find that the attention

of Deputy-Surveyor R. C. Trimbly was called to this claim in an order of survey, dated November 10, 1835, by Surveyor General Williams, with directions to locate it, but owing, it is supposed, to the want of exact data and the fact that the land which this claim embraced had been surveyed as public land in the year 1832, it was deemed best not to locate it and cause unnecessary conflict of surveys. Again, in 1857, when a correction of some of the surveys in T. 15 S., R. 7 E., SW. D., was being made by Deputy-Surveyor Anthony Doherty, it was the desire of this office to locate this claim, but upon application to the register of the land office at Opelousas, he stated that that office contained no record or papers which could aid the deputy-surveyor to establish the boundaries of this claim on the ground.

I find upon file in this office, under date of September 2, 1872, a petition for relief under the act herein before cited, accompanied by evidence of title in the present legal representative of the said Sweayze. My attention has been more recently called to this claim, and the proof being satisfactory respecting the confirmation, transfer of title, and that the claim remains unlocated and unsatisfied, I have caused the scrip to issue.

When the scrip came up to your office, the Commissioner refused to approve and authenticate it, holding the evidence upon which it was issued was too meager and unsatisfactory. Finally, by letter to W. A. Coulter, Esq., one of the attorneys for the present alleged legal representative of the original claimant, dated December 16, 1885, your office adhered to its former order of suspension in the matter of this and certain other claims of similar character, and refused to deliver the scrip aforesaid, because of the rulings in the cases of Madam Bertrand (Land Office Report 1879, p. 215), and Joshua Garrett (2 C. L. L., 1005). Thereupon, an appeal was duly taken by Mr. Coulter, and the case has been very carefully considered by me. Counsel have been heard orally and fully as to the questions involved herein, and have also filed briefs in support of the position taken by them in the matter of this claim.