This privilege is in derogation of the common rights of settlers, and is not to be enlarged, by construction, but the act should be given the construction which is most favorable to the rights of settlers. The townships which remain unsurveyed are those for which the State may make application, under this act. The unsurveyed townships may therefore be surveyed on the application of the State, or your office may direct the survey without such application, if deemed advisable. In the case under consideration, before the State filed its application your office had ordered the survey of the townships named, and the same were put under contract to be surveyed, so that they ceased to be townships for the survey of which applications would thereafter be received.

Inasmuch as prior to the application of the State, the survey had been determined upon and ordered by your office, with a view to the benefit of the settlers, the townships for the survey of which measures had thus been taken, were no longer within the provisions of said act of August 18, 1894, and your office properly so held, and the decision is affirmed.

RAILROAD GRANT-MODIFIED LINE-ADJUSTMENT.

IOWA RAILROAD LAND Co. (ON REVIEW).

The act of June 2, 1864, authorized a modification of the line of unconstructed road as located under the original grant of 1856, and provided for a branch line connecting said modified line with the line of the Mississippi and Missouri Railroad Company, so as to form a connection with the Union Pacific system. For the modified main line the company was entitled "to the same lands and to the same amount of lands per mile," as provided in the original grant, but for the connecting branch line a new grant was made, to be satisfied from lands within twenty miles thereof, hence in the adjustment of the grant, as made by the two acts of Congress, the "connecting branch line" cannot be regarded as a part of the modified main line.

The act of 1864, so far as the modified main line is concerned, enlarged the source from which the amount of lands granted by the act of 1856 might be satisfied; but the lands certified prior to said act of 1864, along unconstructed road, must remain a charge against the company in the final adjustment of the grant under the two acts.

Secretary Francis to the Commissioner of the General Land Office, Jan(I. H. L.) uary 30, 1897. (F. W. C.)

With your office letter of September 5, 1896, was forwarded a motion, filed on behalf of the Iowa Railroad Land Company, successor to the Cedar Rapids and Missouri River Railroad Company, for review of departmental decision of July 9, 1896 (23 L. D., 79), in the matter of the adjustment of the grant made by the act of May 15, 1856 (11 Stat., 9), and June 2, 1864 (13 Stat., 95).

The motion is based upon the following assignments of error:

1. The finding and holding that the original location is the measure of the grant for the constructed line of said road, and that the only purpose of the act of 1864, so

far as said line is concerned, was to authorize a change of line and, by enlarging the source from which selections might be made for losses in place along the original line, to fully satisfy the amount graated or intended to be granted for the road west of Cedar Rapids by the act of 1856.

2. The finding and holding that Exhibit A of the adjustment submitted by the Commissioner of the General Laud Office is correct and proper "in so far as the extent of the grant is concerned."

3. The failure to find and hold that the 4th section of the act of June 2, 1864, is, as is found by the supreme court in Herring e. Railroad Company (110 U. S., 27), a new grant, and that under it the company is entitled to six sections of land per mile for every mile of road constructed by said company west of Cedar Rapids.

4. The finding and holding that the 2,569.75 acres erroneously certified to the railroad company, they having been theretofore disposed of by the United States, being outstanding must remain a charge to the grant unless reconveyed to the United States by said company.

5. The finding and holding that the 76,916.75 acres certified to the State and sold by the Iowa Central Air Line Railroad Company out of the grant of 1856, prior to resumption by the State of Iowa, and to the enactment of the grant of 1864, should not be deducted from the grant made for the modified line by the act of June 2, 1864.

The first three assignments of error question the directions given as to the measure of the grant.

Your office letter submitting this matter presented five plans of adjustment, the first, which was adopted in the opinion under review, being as follows:

Exhibit A is an adjustment upon the theory that the company takes under the original grant from Cedar Rapids, and that the only additional right given the company under the act of 1864 was to satisfy deficiencies within the grant in place, by resorting to the even numbered sections within the six mile limits and both even and odd within the fifteen mile limits, and if there was still a deficiency to resort to the even and odd sections along the modified line within twenty miles thereof. Under this settlement there have been excess approvals to the company of 57,570.24 acres. To understand the real position of the company it is necessary to review, somewhat, the history of the grant.

The Iowa Central Air Line Company, upon which the State originally conferred the grant, filed a map of definite location of the line of road October 31, 1856, which was duly accepted and upon which the limits of the grant were adjusted and withdrawal ordered.

The road provided for by the act of 1856 was—

from Lyons City to a point of intersection with the main line of the Iowa Central Air Line Railroad, near Maquoketa, thence on said main line, running as near as practicable to the forty-second parallel across the State, to the Missouri River.

Said Air Line Company failed to construct any part of the road and the State resumed the grant in 1860 and conferred the same upon the Cedar Rapids and Missouri River Railroad Company.

Prior to this time, however, a road had been built by the Chicago, Iowa and Nebraska Railroad Company (not a land grant road), from a point on the Mississippi River within three miles of Lyons City to Cedar Rapids, and practically upon the location theretofore made between said points by the Iowa Central Air Line Company.

The Cedar Rapids Company therefore began the construction of its road at Cedar Rapids and, prior to the year 1864, had completed about one hundred miles, or, as appears from your letter, to Nevada, Iowa. This was the condition of affairs at the time of the passage of the act of June 2, 1864 (supra), the fourth section of which provides:

That the Cedar Rapids and Missouri River Railroad Company, a corporation established under the laws of the State of Iowa, and to which the said state granted a portion of the land mentioned in the title to this act, may modify or change the location of the uncompleted portion of its line, as shown by the map thereof now on file in the general land office of the United States, so as to secure a better and more expeditious line to the Missouri River, and to a connection with the Iowa branch of the Union Pacific Railroad; and for the purpose of facilitating the more immediate construction of a line of railroads across the State of Iowa, to connect with the Iowa branch of the Union Pacific Railroad Company, aforesaid, the said Cedar Rapids and Missouri River Railroad Company is hereby authorized to connect its line by a branch with the line of the Mississippi and Missouri Railroad Company; and the said Cedar Rapids and Missouri River Railroad Company shall be entitled for such modified line to the same lands and to the same amount of lands per mile, and for such connecting branch the same amount of land per mile, as originally granted to aid in the construction of its main line, subject to the conditions and forfeitures mentioned in the original grant, and, for the said purpose, right of way through the public lands of the United States is hereby granted to said company. And it is further provided, That whenever said modified main line shall have been established or such connecting line located, the said Cedar Rapids and Missouri River Railroad Company shall file in the general land office of the United States a map definitely showing such modified line and such connecting branch aforesaid; and the Secretary of the Interior shall reserve and cause to be certified and conveyed to said company, from time to time, as the work progresses on the main line, out of any public lands now belonging to the United States, not sold, reserved, or otherwise disposed of, or to which a pre-emption right or right of homestead settlement has not attached, and on which a bona fide settlement and improvement has not been made under color of title derived from the United States or from the State of Iowa, within fifteen miles of the original main line, an amount of land equal to that originally authorized to be granted to aid in the construction of the said road by the act to which this is an amendment. And if the amount of lands per mile granted, or intended to be granted, by the original act to aid in the construction of said railroad shall not be found within the limits of the fifteen miles therein prescribed, then such selections may be made along said modified line and connecting branch within twenty miles thereof: Provided, however, That such new located or modified line shall pass through or near Boonsboro', in Boon county, and intersect Boyer river not further south than a point at or near Dennison, in Crawford county: And Provided, further, That in case the main line shall be so changed or modified as not to reach the Missouri River at or near the forty-second parallel north latitude, it shall be the duty of said company, within a reasonable time after the completion of its road to the Missouri river, to construct a branch road to some point in Monona county, in or at Onawa City; and to aid in the construction of such branch the same amount of lands per mile are hereby granted as for the main line, and the same shall be reserved and certified in the same manner; said lands to be selected from any of the unappropriated lands as herein before described within twenty miles of said main line and branch; and said company shall file with the Secretary of the Interior a map of the location of the said branch: And provided further, That the lands hereby granted to aid in the construction of the connecting branch aforesaid shall not vest in said company nor be encumbered or disposed of except in the following manner: When the governor of the State of Iowa shall certify to the Secretary of the Interior that

said company has completed in good running order a section of twenty consecutive miles of the main line of said road west of Nevada, then the Secretary shall convey to said company one third, and no more, of the lands granted for said connecting branch. And when said company shall complete an additional section of twenty consecutive miles, and furnish the Secretary of the Interior with proof as aforesaid, then the said secretary may convey to the said company another third of the lands granted for said connecting branch; and when said company shall complete an additional section of twenty miles, making in all sixty miles west of Nevada, the secretary, upon proof furnished as aforesaid, may convey to the said company the remainder of said lands to aid in the construction of said connecting branch: Provided, however, That no lands shall be conveyed to said company on account of said connecting branch road until the governor of the State of Iowa shall certify to the Secretary of the Interior that the same shall have been completed as a first-class railroad. And no land shall be conveyed to said company situate and lying within fifteen miles of the original line of the Mississippi and Missouri Railroad, as laid down on a map on file in the general land-office: Provided, further, That it shall be the duty of the Secretary of the Interior, and he is hereby required, to reserve a quantity of land embraced in the grant described in this section, sufficient, in the opinion of the governor of Iowa, to secure the construction of a branch railroad from the town of Lyons, in the State of Iowa, so as to connect with the main line in or west of the town of Clinton in said state, until the governor of said state shall certify that said branch railroad is completed according to the requirements of the laws of said state: Provided, further, That nothing herein contained shall be construed as to release said company from its obligation to complete the said main line within the time mentioned in the original grant: Provided, further, That nothing in this act shall be construed to interfere with, or in any manner impair, any rights acquired by any railroad company named in the act to which this is an amendment, or the rights of any corporation, person or persons, acquired through any such company; nor shall it be construed to impair any vested right of property, but such rights are hereby reserved and confirmed: Provided, however, That no lands shall be conveyed to any company or party whatsoever, under the provisions of this act and the act amended by this act, which have been settled upon and improved in good faith by a bona fide inhabitant, under color of title derived from the United States or from the State of Iowa adverse to the grant made by this act or the act to which this act is an amendment. But each of said companies may select an equal quantity of public lands as described in this act within the distance of twenty miles of the line of each of said roads in lieu of lands thus settled upon and improved by bona fide inhabitants in good faith under color of title as aforesaid.

While this act authorized a change in the location of the unconstructed portion of the road, yet, it still provided that it should be built to the Missouri River, but permitted a change in order to secure a "more expeditious line."

The Pacific railroad system was not in existence at the time of the passage of the original act under which this company claims, viz., May 15, 1856, and a further and new object was included in the legislation made by the act of 1864, viz., a connection with the Iowa branch of the Union Pacific Railway.

To accomplish this latter purpose a branch line was provided for, on account of which a new grant was made, and this branch is referred to as the "connecting branch."

By the act of 1856 the line was to run as near as practicable to the forty-second parallel across the State of Iowa. Measurement made of

the locations shows that the old line of 1856 diverges to the north of that parallel twenty-four miles, while the modified line diverges to the south thirty miles, measured to a connection with the Sioux City and Pacific Railroad at California Junction.

By letter of July 5, 1865, William T. Steiger, as agent of the company, filed in this Department a map showing the amended line of location of said Cedar Rapids and Missouri River Railroad.

Said letter contained the following:

I have the honor to transmit herewith the letter of W. W. Walker, Esq., Vice President Cedar Rapids and Mo. Riv. R. R. Co., addressed to you on the 19th instant, together with the accompanying maps duly authenticated of the amended route of said road from Cedar Rapids to the Missouri River, which I beg leave to place on file as the basis of the adjustment of the additional grant of 2nd June 1864.

This map shows a connection with the Sioux City and Pacific Railroad at California Junction, about three miles from the Missouri River, and with this connection the river is reached as the Sioux City and Pacific Railroad crosses the Missouri River.

By letter of December 19, 1867, Hon. J. I. Blair, President of the Cedar Rapids and Missouri River Railroad, filed a second map, with a request that it be attached to the one before filed.

This map shows a line leaving the location made in 1865, at Missouri Valley, about six miles east of California Junction, and runs nearly due south for about twenty-one miles to a connection with the Mississippi and Missouri River Railroad, now the Chicago, Rock Island and Pacific Railroad, at Council Bluffs.

It is claimed by the company that this piece of road last described should be considered as a part of the amended main line.

This contention, if granted, makes the amended line, as constructed, 271.6 miles long, and it is claimed that this becomes the basis for the adjustment of the grant under the act of 1864, which is to be satisfied from the limits of the old location of 1856, as far as possible, the deficiency to be made up along the limits of the modified line, and that this deficiency is not only of lands lost in place along the old location, but that the constructed line, being longer than the old location, the grant was commensurably increased, and that this increase is to be also taken along the modified line.

In the decision under review it was held that (syllabus):

The grant to the State of Iowa by the acts of May 15, 1856, and June 2, 1864, is a grant in place, the extent of which is determined by the location under the original grant, and the amount of lands earned thereunder ascertained by the line of road constructed west of Cedar Rapids, with the additional right under the act of 1864, to satisfy deficiencies within the grant in place by resorting to even numbered sections within the six mile limits, and both even and odd within the fifteen mile limits, and if there is still a deficiency to resort to the even and odd sections along the modified line within twenty miles thereof.

After a careful review of the matter this position is adhered to, and even if the company's contention as to the length of the modified line 10671-VOL 24-9