Your decision is therefore affirmed.

It will be observed that the record in the case designates the land as the SW. of said section 29. After the argument had closed, it was discovered that the tract was improperly designated, and that the land involved is the NW. 4 instead of the SW. 4. Accordingly, counsel were notified of the error, and called upon to show cause why the error should not be corrected.

In response thereto, counsel for Rinehart consents to said correction and counsel for the road submit the question of correction to the Department, saying they will be content with the decision of the Department in regard to making said correction and will make no objec tion thereto. Letters of counsel to this effect have been filed with the record in the case. Being satisfied that the settlement of Rinehart is upon the NW. 4 instead of the SW., and that the declaratory statement describes the land as the NW. of said section 29, the correction 4 will be accordingly made in the record of your office.

PRACTICE-AFFIDAVIT OF CONTEST-JURISDICTION.

GOTTHELF v. SWINSON.

A contest affidavit is in the nature of an information, and when it has been accepted, notice issued, and service made thereof, jurisdiction is acquired.

If the affidavit of contest is defective, the jurisdiction is not affected thereby, and objection thereto can only be raised at the hearing.

Acting Secretary Muldrow to Commissioner Sparks, May 23, 1887.

July 14, 1881, Philip Swinson made timber culture entry No. 6423 of the SE., Sec. 15, T. 107 N., R. 57 W., Mitchell, Dakota, and September 19, 1883, Louis Gotthelf filed contest against the same on the charge of failure to comply with the law in the matter of breaking, etc. Notice was given by publication, and hearing had November 5, 1883. On the day of hearing the contestant filed an amended affidavit of contest charging the same as the former one, because the first affidavit had been sworn to before one of his attorneys in the case. The entryman defaulted. The evidence submitted showed that the entryman had failed to break or plow five acres of said land at any time subsequent to his said entry; that he failed to crop or cultivate any part of said land, and that said tract was then wholly unimproved, with the excep tion of about one and three quarters acres broken in 1881. The register and receiver thereupon recommended the cancellation of the entry. Their judgment was sustained on appeal to your office, and the entry held for cancellation June 10, 1885. From this decision appeal is brought here.

The main point relied upon in the appeal is that the register and receiver did not have jurisdiction to issue notice on the first affidavit of 2278 DEC-42

contest, because the same was sworn to before contestant's attorney. To this it is simply necessary to say that the contest affidavit is in the nature of an information: and when the register and receiver have accepted and acted upon the information tendered, by issuing notice to the defendant, when service is made, jurisdiction in the case is acquired. Houston v. Coyle (2 L. D., 58), Butler v. Mohan (3 id., 513). If the affi davit of contest be defective, such defect does not touch the question of jurisdiction; it is a matter that can only be excepted to at the hearing. Contests have been allowed where no affidavit has been filed at all, where the information upon which the local officers acted was merely verbal, or where it was reduced to writing, but not verified by the oath of the contestant. The rule requiring an affidavit to be filed by contestant when initiating his contest was only to assure the government of his good faith in the premises. It is always to the interest of the gov ernment that entries, in which the laws have not been complied with, should be canceled, and to that end legitimate contests are favored. But, if this were not so, in this case the amended affidavit filed on the day of the hearing cured any defect which might have existed in the former affidavit, and made the contest good beyond all question or doubt.

I see no reason for disturbing the decision appealed from, and the same is accordingly affirmed.

RAILROAD GRANT-INDEMNITY WITHDRAWAL; ACT OF MARCH 3, 1879.

BRADY v. SOUTHERN PAC. R. R. Co.

(On Review.)

As no vested right to any particular tract is conferred by indemnity withdrawal, and the existence of the same is dependent upon the will of the Secretary of the Interior, the Department may prescribe rules by which failure to assert the right of selection, as against a settler after withdrawal, will operate as a revocation thereof as to the tract involved.

The right of selection within indemnity limits is a preference right that may be asserted against every one, but failure to assert such right, after due notice of a settler's intention to make final proof for land within said limits, is a waiver of said right, and will, after proof and payment, estop the company from setting up the illegality of the entry.

Acting Secretary Muldrow to Commissioner Sparks, May 25, 1887.

In the case of the Southern Pacific Railroad Company v. Peter F. Brady, I held by decision of February 8, 1887 (5 L. D., 407) that where a settlement is made upon land within the indemnity limits of a railroad grant, withdrawn by order of the Secretary of the Interior, and notice of intention to make final proof is given in accordance with the act of March 3, 1879 (20 Stat., 472) the railroad company is required to appear at the local office and show cause why the entry should not be

allowed, and its failure to so appear and show cause at the time of making final proof shall be considered as a waiver of whatever right it might have acquired to the premises.

The railroad company has filed a motion for review of this decision, upon the ground that the land having been withdrawn for the benefit of said company, Brady's entry was illegal, and the failure of the company to appear and contest the entry could not make that lawful which by due authority is declared unlawful.

The issue presented by the motion is whether Brady's settlement upon that land was absolutely unlawful, for if we concede that it could never ripen into a right, it can make no difference whether the company protested or not. If it is not absolutely unlawful, I can see no reason why the Department may not prescribe rules by which the company shall be required to assert their claim at the date of making final proof, and upon failure so to do to be considered as having abandoned all right to claim said land.

These lands being within indemnity limits, the company have no vested right by reason of withdrawal, but their right to any particular tract can only become vested by selection made with the approval of the Secretary.

Having no vested right by virtue of withdrawal, and the withdrawal depending solely upon the will of the Secretary of the Interior, that withdrawal may be revoked at any time and the lands restored to entry at the will of the same official that made it.

Is there any reason why the Department may not prescribe rules by which the failure of the company to appear and assert its right or intention to claim any particular tract, that may have been settled upon, shall operate to revoke the withdrawal as to that particular section and to restore it to entry? If it is within the power of the Department to revoke the withdrawal as to all the lands, it surely has the power to revoke the withdrawal of a part of said lands, and the decisions of the Department that have crystallized into a general rule may become as effective for that purpose as the order of the Secretary directly withdrawing all the land.

All questions as to the preference rights of settlers to the public lands must be raised and decided in the local office, and a failure so to assert their rights and to bring the same before the General Land Office by appeal will estop them from afterwards asserting their rights. The right of the road to make selection in indemnity limits is nothing more or less than a preference right that they may assert against every one, but having notice of the intention of a settler to make final proof on any tract of land within said limits, and quietly looking on and allowing the settler to pay his money for the land without protesting and asserting their rights, will estop them from afterwards setting up the illegality of said entry, because their failure to assert their claim is

equivalent to a declaration that they do not intend to select that particular tract.

In the case of Fox v. the Southern Pacific Railroad Company (2 L. D., 558) the application to file for the land was rejected by the local officers, because it was within the indemnity limits of the withdrawal for said road. While this decision was proper, yet, if the entry had been allowed, it would not have relieved the company from the necessity of asserting its rights when the settler made application to prove up. Nor is the circular of May 26, 1883 (10 C. L. O., 95), cited by counsel with the case of Fox v. Southern Pacific Railroad Company, repugnant to this view.

The case of Buttz v. Northern Pacific Railroad Company (119 U. S., 55) involving the question of a legislative withdrawal in granted limits, is not applicable to this case.

The motion is refused.

PRIVATE CASH ENTRY; ERRONEOUS SURVEY

E. W. HARRIS.

Land within the limits of the official survey of a private claim, in excess of the amount confirmed and patented, is not subject to private cash entry; and can only be disposed of after the survey has been duly amended.

Acting Secretary Muldrow to Commissioner Sparks, May 25, 1887.

I have considered the appeal of E. W. Harris from the decisions of your office, dated October 15, and November 20, 1885, refusing to allow his application to make private cash entry of lands in T. 4 N., R.. 16 E., at the Detroit land office, in the State of Michigan.

The record shows that your office, on October 15, 1885, advised the local land officers, that the application of Mr. Harris must be rejected, for the reason that the lands applied for are within the lines of the official surveys of private land claims Nos. 302 and 310 confirmed to Joseph Ricard and Oliver Ricard, respectively, under the act of March 3, 1807 (Vol. 2, 437), as shown by Green's American State Papers, Vol. 1, p. 363 and 366; that said claims were surveyed in 1810 and patents were issued in 1812; that the side lines of said claims, as shown by the description in said patents, measuring from the St. Clair river, are fourteen chains less in length than the side lines shown by said official surveys; that any errors in said surveys should have been corrected by the surveyor general prior to the issuance of said patents, which should have corresponded with the surveys as finally adopted; and that not having been surveyed as public lands, said tracts are not subject to ordinary private cash entry.

Mr. Harris was duly advised of said action of your office, and in response to a letter of inquiry, addressed to the register of said office,

relative to the proper manner to have said lands made subject to private cash entry, your office, on November 20, 1885, directed the local land officers to advise Mr. Harris that his application for survey could not be further considered, for the additional reason that he does not claim to be a settler; that your office is not advised as to the status of said lands, whether occupied or not, and that if the public surveys were extended over said tracts he would not have a preference right of purchase; that said land could not be entered at private sale until it had been surveyed, duly advertised and offered for sale to the highest bidder, and no sale made at such offering. The only important question presented by said appeal is, whether said land is subject to private cash entry, and that question must be answered in the negative. If, as appears from the record, said private claim surveys embrace more land than was confirmed and patented to said parties, then the surveys should be amended in a proper proceeding, and after the same have been corrected, the land outside of the corrected surveys should be disposed of according to law, in such manner as to protect the interests of the United States and any bona-fide occupants thereof.

The decisions appealed from are correct, and they are hereby af firmed.

RAILROAD GRANT-DEFINITE LOCATION.

CENTRAL PACIFIC R. R. Co.

The joint resolution of April 10, 1869, fixed the common terminus of the Central Pacific and Union Pacific at or near Ogden, and required the former company to pay the latter for the construction of the road from said point to Promontory Summit. The Central Pacific thus became entitled to the granted lands between said points.

The line of the road was definitely located when the Secretary of the Interior notified the company of the receipt of the map showing the same, and of his "consent and approval to the location of said road according to the map and profiles.” Rights acquired by such formal definite location were not affected by the report of the commission subsequently appointed, or the action of the Department on said report.

Acting Secretary Muldrow to Commissioner Sparks, May 26, 1887.

I have considered the appeal of the Central Pacific Railroad Company from your decisions of September 16, December 11, 1885, holding for cancellation its selections of certain tracts of land in Sec. 31, T. 10 N., R. 2 W., Salt Lake City, Utah Territory.

It appears that the land office at Salt Lake City was opened March 9, 1869; on March 15, 1869, Charles W. Alexander filed pre-emption declaratory statement, claiming settlement four days before on the E. of the NE. and NW. of the NE. ; that William P. Offley made homestead entry April 13, 1869, of lots 2, 3, and 8, which was commuted to cash entry June 3, 1869; that Orando J. Hollister on April