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tion by the railway company, and upon subsequent relinquishment filed, did not inure to the benefit of the railway company, but reverted to the government as public lands open for entry. Kansas & Pacific Ry. Co. v. Dunmeyer, 113 U. S. 629; H. & D. Ry. Co. v. Whitney, 132 U. S. 357; Wilcox v. Jackson, 3 Peters, 498; Sturr v. Beck, 133 U. S. 541; Witherspoon v. Duncan, 4 Wall. 210; United States v. Turner, 54 Fed. Rep. 228; Fish v. N. P. Ry. Co., 23 L. D. 15.

The doctrine that a tract of land lawfully appropriated becomes thereafter severed from the mass of public lands, and if relinquished or abandoned reverts to the government, applies as well to indemnity lands as it does to granted lands. See Nelson v. Nor. Pac. Ry., 188 U. S. 108; Oregon Ry. v. United States, 189 U. S. 103; DeLacy v. Nor. Pac. Ry., 72 Fed. Rep. 726; Fish v. Nor. Pac. Ry., 23 L. D. 15; Northern Pacific Ry. v. Loomis, 21 L. D. 398; St. P. & Omaha Case, 21 L. D. 423; H. & D. Ry. v. Christianson, 22 L. D. 257; State of California v. So. Pac. Ry., 27 L. D. 542; Prince Inv. Co. v. Eheim, 55 Minnesota, 36; St. Paul & Sioux City R. Co. v. Ward, 47 Minnesota, 40.

The status of the railway company having been fixed and established at the time of its attempted selection, the lands were not affected by such selections because having been previously segregated, the effect of the relinquishment was not to revive or make valid any claim under the original attempted selection, but upon such relinquishment being filed the land became restored to the great mass of public land and was subject to entry from that time, unaffected by the previous attempted selection by the railway company. H. & D. Ry. v. Whitney, 132 U. S. 357; Kansas Pac. Ry. v. Dunmeyer, 113 U. S. 629; Johnson v. Towsley, 13 Wallace, 72; United States v. Turner, 54 Fed. Rep. 328; Perkins v. Cent. Pac. Ry., 11 L. D. 357; M., K. & T. Ry. v. Troxei, 17 L. D. 122.

MR. JUSTICE WHITE delivered the opinion of the court.

Jerry Hickey, having the legal qualifications, in March, 1893,

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settled upon unsurveyed public land of the United States, situated in the Duluth land district, Minnesota. The land was within the territory in which plaintiff in error, hereafter called the railway company, was entitled to make indemnity selections. This right, however, was limited to land as to which, at the time, "no right or claim had attached or been initiated" in favor of another. Act of August 5, 1892, c. 382, 27 Stat. 390. In the land office of the district aforesaid, two years and eight months after the settlement by Hickey, that is, in December, 1895, the railway company made indemnity selections, embracing not only the land upon which Hickey had built his residence, but all the unsurveyed land contiguous thereto, which under any contingency could have been acquired by Hickey in virtue of his settlement. Seven months after-on July 22, 1896-the official plat of survey of the township in which the lands were situated was filed. On that day Hickey made application to enter the tract, under the homestead laws. This application embraced five contiguous lots, located, however, in different quarter-sections, viz., one lot (No. 12) in section 3, and four lots (Nos. 9, 10, 14 and 15) in section 4. The whole five lots contained in all about one hundred and sixty acres, because lots 14 and 15 were fractional. The improvements made by Hickey were on lot 15.

On the day Hickey filed his application the railway company presented a supplementary list of its selections, conforming them to the survey of the township. Because of the conflict between the claim of Hickey and that of the railway company, a contest ensued. It is unnecessary to recite the vicissitudes of the controversy, the death of Hickey pending the contest, the substitution of his mother as 's sole heir, and the proceedings by which the claim of the railway company came to be limited to the lots outside of the fractional quarter-section on which the improvements of Hickey had been made. Suffice it to say that ultimately the Secretary of the Interior decided in favor of the Hickey claim. It was held that the effect of the settlement was to initiate a homestead right as to all the

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land claimed in the application to enter, and therefore under the terms of its grant the railway company was precluded from making a selection of the lands in dispute. In reaching this conclusion the Secretary found as a fact that in making his homestead settlement Hickey had plainly manifested his intention to embrace within his homestead the land which he subsequently sought to enter, in such manner as to cause it to be well known to all in the community, as early as 1893, the year of the settlement, what were the boundaries of the tract for which he intended to obtain a patent. 32 Land Dec. 8. In consequence of this final decision the mother of Hickey made a homestead entry for the five lots. Subsequently, in the Cass Lake land district, Minnesota, to which the land had been transferred, the mother of Hickey filed in the local land office a relinquishment of her claim to the entire tract. Simultaneously, Donohue, the defendant in error, filed an application to enter the land under the timber and stone act, and his claim was allowed. The railway company, however, contested, as to the lots other than 14 and 15 in section 4, on the ground that the effect of the relinquishment by the heir of Hickey was to cause the selections which had formerly been rejected to become operative as against the entry of Donohue as to the land outside of the quarter-section on which the improvements of Hickey had been constructed. The contest thus created was finally decided by the Secretary of the Interior in favor of the railway company, and a patent issued to it for the lots in dispute. This proceeding was then commenced in the courts of Minnesota by Donohue to hold the railway company liable as his trustee, upon the ground of error in law committed by the Secretary of the Interior in refusing to sustain his entry. The court below decided in favor of Donohue. 101 Minnesota, 239. Upon this writ of error the correctness of its action is the question for decision.

The errors assigned and the arguments at bar rest upon two contentions: First. That the original decision of the Secretary of the Interior in favor of the Hickey homestead entry was

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wrong as a matter of law, because Hickey by his settlement had power to initiate a claim to land only in the fractional quartersection within which his improvements had been placed, and, therefore, that all the other lands outside of such quarter-section, although embraced in the application for entry, were subject to selection by the railway company, because unappropriated public land of the United States, against which no claim had been initiated. Second. Because even if the decision of the Land Department in favor of the Hickey application was not erroneous as a matter of law the court below erred in not giving effect to the ruling of the department in favor of the railroad company and against the Donohue entry.

To dispose of the first contention requires us to take into view the legislation concerning the right to acquire public lands by preëmptors and homesteaders.

The act of September 4, 1841, c. 25, 5 Stat. 455, together with the supplemental act of March 3, 1843, c. 85, 5 Stat. 619, superseded all earlier statutes, and were the basis of the preëmption laws in force on the repeal of those laws in 1891. The act of September 4, 1841, was entitled "An act to appropriate the proceeds of the sale of the public lands, and to grant preëmption rights," and §§ 10-15 dealt with the subject of preemption. By 10 it was provided that one who possessed certain qualifications and made settlement in person upon surveyed public lands subject to be so settled, and who should inhabit and improve the same, and who had or should erect a dwelling thereon, might enter with the register of the land office for the district in which such land might lie, "by legal subdivisions, any number of acres not exceeding one hundred and sixty, or a quarter section of land, to include the residence of such claimant, upon paying to the United States the minimum price of such land,

." This provision of the statute of 1841 was substantially reënacted in § 2259 of the Revised Statutes. Under the law of 1841 claims to public land might be initiated, prior to record notice, by settlement upon surveyed land subject to private entry, thirty days being allowed the settler within which to

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file his declaratory statement with the register of the proper district. Act of September 4, 1841, c. 16, s. 15, 5 St. 457, Rev. Stat. § 2264. Subsequently, where the land settled upon had not been proclaimed for sale the settler was allowed three months in which to file his claim. Act of March 3, 1843, c. 86, s. 5, 5 Stat. 620, Rev. Stat. 2265.

It was not, however, until 1862, that preëmptions were allowed, under proper restrictions, on the unsurveyed public lands generally. Act of June 2, 1862, 12 Stat. 418. By §7 of that act the settler on unsurveyed lands was not required to make his declaratory statement until three months from the date of the receipt at the district land office of the approved plat of the township embracing his preëmption settlement.

From the beginning the Land Department has construed the preëmption laws as conferring an alternative right either to select a regular quarter-section of 160 acres or the same quantity of land embraced in two or more contiguous legal subdivisions, although in different quarter sections. See circular of September 15, 1841 (1 Lester Land Laws, p. 362). The practice of the Land Office is illustrated in a case passed upon by the Attorney General in 1871. Copp, Land Laws, p. 309. One Shaw filed a declaratory statement embracing tracts situated not alone in different quarter-sections, but in different townships, and aggregating more than 195 acres. From a ruling of the commissioner requiring the preëmptor to select which of the legal subdivisions he would omit from his entry so as to include his principal improvements, preserve the contiguity of the land remaining and approximate to 160 acres, Shaw appealed, and the Secretary of the Interior requested the advice of the Attorney General. In recommending that the decision of the commissioner be affirmed, after calling attention to the fact that the technical quarter-section, through the unavoidable inaccuracy of surveys in adjusting meridians, etc., often exceeded or fell below 160 acres, it was said:

"The preemption settler has the right under the act of 1841 to enter either one hundred and sixty acres in legal subdivisions

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