lands, one hundred thousand dollars shall be deposited with the Secretary of the Interior, to be forfeited in case the whole of the lands are not paid for as herein provided; (said money may be applied as the payment for the last one hundred thou sand acres of said land;) payments shall also be made for at least one fourth of said unallotted lands at the rate of one dollar per acre, and when so paid the President is authorized hereby to issue patents for the land so paid for; and then for every additional part of said land upon the payment of one dollar per acre. The interest on said purchase money shall be paid annually to the Secretary of the Interior for the use of said Indians. If the said company shall fail to pay the principal when the same shall become due, or to pay all or any part of the interest upon said purchase money within thirty (30) days after the time when such payment of interest shall fall due, then this contract shall be deemed and held absolutely null and void, and cease to be binding upon either of the parties thereto, and said company and its assigns shall forfeit all payments of principal and interest made on such purchase, and all right and title, legal and equitable, of any kind whatsoever, in and to all and every part of said lands which shall not have been, before the date of such forfeiture, paid for as herein provided: Provided, however, That in case any of said lands have been conveyed to bona fide purchasers by said Atchison, Topeka and Santa Fe Railroad Company, such purchasers shall be entitled to patents for said lands so purchased by them upon the payment of one dollar and twenty-five cents per acre therefor, under such rules and regulations as may be prescribed by the Secretary of the Interior.

In this connection it is deemed proper to call to your attention the application of Emma L. Pape, herein before referred to. It is alleged that the Atchison, Topeka and Santa Fe Railroad Company, on the third day of January, 1872, by warranty deed, conveyed this land to Arron Sage, and that by regular mesne conveyances this land became the property of Emma L. Pape on the fourth day of November, 1891.

This showing is not sworn to, and the Department has not deemed it proper to pass upon the question thus raised, it being the well estab lished usage of the Department to await a determination by your office upon such questions before the taking of final action here.

It is therefore determined that it would not be proper at this time to grant the request of your office that the register at Topeka be authorized to have the lots in question appraised, in view of the fact that should it be determined that Emma L. Pape is entitled to patent for the land, the act itself (supra) has fixed the price.

Should Emma L. Pape, after a reasonable time given her, to be fixed by your office, fail to properly assert her claim, there appears to be no good reason why, at the expiration of such time, the register at Topeka should not be authorized to have the said lots appraised, and you are accordingly so directed.

The papers are herewith returned, and you will proceed to the adjudi cation of the rights of the said Emma L. Pape as, after investigation, may appear just and proper.

RAILROAD GRANT-WITHDRAWAL ON GENERAL ROUTE.

SHANNAHAN v. NORTHERN PACIFIC R. R. Co.

The withdrawal for the benefit of the Northern Pacific railroad company, on the map of general route filed August 15, 1873, cannot be pleaded by the company as against the operation of a pre-emption claim filed after the abandonment of such route by the company, and prior to definite location.

Secretary Bliss to the Commissioner of the General Land Office, June 15, (W. V. D.) 1897.

(F. W. C.) John Shannahan has appealed from the decision of your office, dated June 14, 1895, holding for cancellation his homestead entry covering the NE. of SW. 1, W. of SE. 1, and SE. of SE.Sec. 35, T. 27 N., R. 6 E., Seattle land district, Washington, for conflict with the grant for the Northern Pacific Railroad Company.

Motion was filed on behalf of the company to dismiss said appeal on the ground that proper service was not made upon the company, the notice having been served upon Thomas Cooper, land agent of the company at Tacoma, Washington.

In the case of Boyle v. Northern Pacific R. R. Co. (22 L. D., 184), similar service was held to be sufficient and the motion under consideration is accordingly denied.

The company's claim to this land is made on account of its branch line.

The map of general route of said line was filed August 15, 1873. Its map of amended general route was filed on June 11, 1879, the latter map being accepted by the Department and withdrawal ordered thereon, the tract in question falling without the limits established upon the said map of general route. Upon definite location of the road, as shown by the map filed September 3, 1884, this tract fell within the primary limits of the grant.

Prior to the filing of the map of definite location, to wit, on Febru ary 29, 1884, one John Pugh filed pre-emption declaratory statement covering this land in which he alleged settlement February 16, 1884. Your office under the authority of the decision of this Department in the case of said company v. McMahon (18 L. D., 435) held that— Whatever equities the pre-emptor might have asserted under his settlement and filing were he still claiming the land, can not therefore inure to the benefit of Shannahan, a settler subsequent to definite location, nor be made the basis for holding that the land was excepted from the company's grant.

Since the date of your said office decision, the Department has rendered decision in the essentially similar case of Morrill v. The Northern Pacific Railroad Company (22 L. D., 636–7), in which it held that the route of 1873 was abandoned by the company, and the Department duly notified thereof as early as 1876, and that the withdrawal on the map of 1873 cannot be pleaded as against those who settled upon or entered the land prior to the filing of the map of definite location.

In view of said decision, I am of opinion that the pre-emption declaratory statement of John Pugh, in February, 1884, was properly allowed, and served to except the tract in controversy from the operation of the grant, upon the subsequent filing (on September 3, 1884, supra,) of the map of definite location. (Whitney v. Taylor, 158 U. S., 85.)

The decision of your office is therefore reversed, and Shannahan's homestead entry will remain intact.

CHIPPEWA PINE LANDS-PURCHASE-APPRAISAL.

JAMES REVOR ET AL.

Cash entries of Chippewa pine lands, made after due offering under section 5, act of January 14, 1889, and the amendatory act of February 26, 1896, should not be canceled for inadequacy of consideration, where the appraised value of the land was paid, and there is no evidence of collusion between the purchaser and the government appraiser, unless such inadequacy is so great as to amount to a fraud or imposition.

Directions given for withholding said lands from sale until further orders, and the Commissioner instructed to proceed with the survey of said lands, and report with respect thereto.

Secretary Bliss to the Commissioner of the General Land Office, June 15, (W. V. D.)

1897.

(C. J. W.)

By letter "C" of April 2, 1897, your office transmits the answers of six purchasers of Chippewa pine lands, whose entries were suspended by order of January 4, 1897, in response to notices issued from the local office at Crookston, Minnesota, calling upon them to show cause why their entries should not be canceled. These showings are before the Department, without recommendation from your office as to their sufficiency. They embrace cash entry No. 2, issued to James Revor, cash entry No. 9 to Byron R. Lewis, cash entry No. 114 to Charles A. Weyerhaeuser, cash entry No. 266 to Th. S. Berg, cash entry No. 381 to William Parker, cash entry No. 393 to John Cronon.

The lands embraced in these entries are not covered by any special report. In the case of Revor his answer sets up that he purchased in good faith and paid for the tract appraised at $50 the sum of $150. Th. S. Berg answers that he made his purchase on the estimate made by the government and did not know whether it was a proper estimate or not, and does not yet know. The other answers neither admit nor deny the underestimation of the lands purchased, but allege good faith, and urge that if the examiners appointed by the government committed any error it ought not to affect their purchases. In two of the cases the entrymen have transferred their interests to other parties who join in the answers and claim to be innocent purchasers. In no one of the cases does any evidence of collusion between the purchasers and government examiners appear. None of the lands involved in these six

entries are covered by the report of special agent Wright, and there is therefore no evidence that there was any underestimate of the quantity of timber upon them. There would seem to be no reason for longer holding these entries suspended, and they are accordingly released from the order of suspension and may pass to patent if otherwise free from defect. This disposes of the cases in which formal answers have been filed in response to the notice to show cause.

The public sale at the Crookston land office took place July 15, 1896. Thirty thousand four hundred and twenty acres were then sold at public auction, and 32,236.78 acres, not then commanding bidders, were afterwards sold at the appraised value at private sale, aggregating 1604 tracts sold and paid for in cash before January 4, 1897, the date of the Secretary's order suspending the issuance of patents. In the meantime, however, patents had been issued for 1155 tracts, leaving, to be affected by the suspension, only four hundred and forty nine tracts represented by one hundred and thirty one entries and held by twenty two purchasers.

Your office calls attention to the fact that the report of special agent Wright who made the investigation of the Chippewa pine lands, covers only six tracts or subdivisions which are unpatented, and subject to the order of suspension of January 4, 1897. It appears that this report covered eighty-five subdivisions. Sixty-one of these subdivisions have been sold and twenty-one remain unsold. The six unpatented tracts which come under the rule to show cause were entered as follows: Five by Frank P. Hixon and one by Sumner C. Bagley. They have failed to respond to the notice to show cause. The only cause of complaint against their purchases known to the Department is the alleged underestimation of the quantity of timber on the lands by the government examiners, and the only evidence of underestimation is the discrepancy between the estimate of chief examiner Douglass and the subsequent one of special agent Wright, after the sales. In reference to this discrepancy your office reports as follows:

C. E. No. 356 F. P. H. Gov. est. 51 M. feet. Spc. Agt. est.

70 M.

There is a difference shown between the Douglass estimate and that of special agent Wright of one hundred and sixty-two thousand feet in the aggregate on the five tracts purchased by Hixon, and a difference of eighty-three thousand feet on the tract purchased by Bagley. Both estimates were made by persons representing the government, and in its services, and, while the later estimate was evidently made with much greater care and is much more reliable, neither can be said to be absolutely accurate. The Department accepted the Douglass esti

mate and made it the basis upon which the lands in question were appraised and offered for sale; they were thus offered in accordance with the fifth section of the act of January 14, 1889 (25 Stat., 642), as amended by the act of February 26, 1896 (29 Stat., 17), which reads as follows:

SEC. 5. That whenever,' and as often as the survey, examination, and appraisal of one hundred thousand acres of said pine lands, or of a less quantity, in the discretion of the Secretary of the Interior, have been made, the portion so surveyed, examined, and appraised shall be proclaimed as in market and offered for sale in the following manner: The Commissioner of the General Land Office, under the direction of the Secretary of the Interior, shall cause notices to be inserted once in each week, for four consecutive weeks, in one newspaper of general circulation, published in Minneapolis, Saint Paul, Duluth, Stillwater, Taylors Falls, Fosston, Saint Cloud, Brainerd, Crookston, and Thief River Falls, Minnesota; Chicago, Illinois; Milwaukee, Wisconsin; Detroit, Michigan; Philadelphia, Pennsylvania; and Boston, Massachusetts, of the sale of said land at public auction to the highest bidder for cash at the local land office of the district within which said lands are located, said notice to state the time and place and terms of such sale. At such sale said lands shall be offered in forty-acre parcels, except in case of fractions containing either more or less than forty acres, which shall be sold entire. In no event shall any parcel be sold for a less sum than its appraised value. The residue of such lands remaining unsold after such public offering shall thereafter be subject to private sale for cash at the appraised value of the same, upon application at the local land office:

The intended sale was advertised in fifteen leading newspapers published in the cities and towns named in the act aforesaid, and these lands failed to find bidders at the public sale, who offered the appraised value, and thus they became subject to private sale under the terms of said act. Hixon and Bagley each paid the appraised value, and purchased at private sale. No collusion is shown between them, or either of them, and the government estimators, and no act performed by either in connection with the sale is complained of. The question arises whether under the circumstances stated these entries should be canceled. The report of special agent Wright was referred to the Commissioner of Indian Affairs for examination and report, and it was recommended by the latter that the offered lands be withdrawn from sale (which has been done), and where sales had already been made of tracts shown to contain a large excess of timber over that found by the government examiners, that the entries be canceled for inadequacy of consideration, allowing the sales to stand where the actual amount of timber standing on the lands is not greatly in excess of the estimate on which the same was sold. The officer making this recommendation recognized the fact that inadequacy of consideration, which is made the ground for setting aside a sale, must be great.

Mere inadequacy of consideration is not sufficient to invalidate a sale unless it be so great as to amount to fraud or imposition. (Amer. and Eng. Ency. of Law, 21-468.)

Here the government fixed the price and the purchasers merely acquiesced by acceptance of the offer, and purchased. Considering that the public sale had been so thoroughly advertised and that the