nor shall any of the said reserved lands become subject to private entry until the same have been first offered at public sale at the increased price.

In the case of the Wisconsin Central R. R. Co. v. Forsythe (159 U.S., 46), it was held that the withdrawal made for indemnity purposes under the act of 1856 did not serve to defeat the attachment of rights under the grant made by the act of 1864, and consequently that the Wisconsin Central railroad company was entitled to its proportionate share of the land so lying within the ten mile limits of each road. This was a reversal of the holdings of this Department, inasmuch as it was held by the supreme court that the withdrawal did not operate to defeat the grant to the Wisconsin Central railroad company.

Under the act of Congress of September 29, 1890 (26 Stat., 496), being "An act to forfeit certain lands heretofore granted for the purpose of aiding in the construction of railroads and for other purposes," which forfeited unearned lands granted to railroads in various states and provided for the restoration of such lands to the public domain, it was provided that lands so forfeited and restored to the public domain should be entered at the rate of $1.25 per acre.

It will be noticed that the land in controversy is a part of an even numbered section, to-wit, section 14. By referring to the original act making this grant in behalf of the Wisconsin Central Railroad Company, and in which at the same time is enlarged the grant in behalf of the Omaha Company, it will be seen that the lauds increased in price were those which were not granted to these railroad companies. The lands granted to the railroad companies were the odd numbered sections within said limits. They, therefore, were not increased in price. And under the act of September 29, 1890, the lands granted to the railroad were forfeited and were directed to be sold at $1.25 per

acre.

It thus follows that there is no statutory authority for ordering re-payment in this case, and this land being within the ten mile limits of the Omaha railroad, despite the fact that the grant to aid in the construction of the Wisconsin Central railroad has failed and determined, the even sections within said ten mile limits of the Omaha railroad remain at double minimum prices.

While it is unfortunate that Congress should have directed the sale of the odd numbered sections at single minimum rates in this particular instance, and left the even numbered sections at double minimum rates, still this is no hardship to the claimants under the public land laws on the even numbered sections, inasmuch as the reason of increased valuation by proximity to a railroad existed here as in all other instances of increased prices. The law simply relieves claimants upon odd numbered sections similarly situated in reference to a railroad from paying the double minimum price.

The decision of your office is affirmed and the application for re-pay. ment is denied.

COAL LAND ENTRY-PRICE OF LAND.

ALLEN L. BURGESS.

The price of coal land is dependent upon its distance from a completed railroad at the date of entry, and not at the date of the application.

Secretary Francis to the Commissioner of the General Land Office, Jan(I. H. L.) uary 8, 1897. (S. V. P.)

Allen L. Burgess made coal land entry September 14, 1895, of the SE. of the SE. of Sec. 14, T. 55 N., R. 85 W., Buffalo land district, Wyoming, and upon examination of the final proof your office held it unsatisfactory with respect to the proof furnished as to the distance of the land from a completed railroad at the time said entry was made, and required further proof on that point, in order that the proper price of the land might be determined. From this action Burgess has appealed.

In the final affidavit made by Burgess, he states:

I made application to purchase said land on or about November 14, 1892, at which time said land was not within fifteen miles from the line of any completed railroad; and that the delay in making payment for said land has been caused through a contest pending on said land between Hermann Timm and myself, which contest has been recently decided.

The price of coal land is fixed by section 2347 of the Revised Statutes, which provides that:

Every person above the age of twenty-one years . . . . shall, upon application to the register of the proper land office, have the right to enter by legal subdivisions, any quantity of vacant coal lands of the United States not otherwise appropriated or reserved by competent authority, not exceeding one hundred and sixty acres to such individual person . . . . upon payment to the receiver of not less than ten dollars per acre for such lands, where the same shall be situated more than fifteen miles from any completed railroad, and not less than twenty dollars per acre for such lands as shall be within fifteen miles of such road.

Under the construction of this statute, adopted and followed by the Department, it is the distance of the land from a completed railroad at the date of entry that determines its price. See paragraph 13, Regulations of July 31, 1882 (1 L. D., 689).

In the case of Edward B. Largent et al. (13 L. D., 397), a protest against the allowance of the application to enter was filed, as in the case at bar, and the Department in disposing of the question said:

The filing of the protest against the entry of Strong was a risk that must be assumed by all who apply to enter the public land. The fact that in this particular case it had the effect to postpone the entry until after a railroad was completed within fifteen miles of the tract, which under the law doubled the price of the land, is only incidental, and the government can not be properly held chargeable for the delay, occasioned by Mr. Bagnell's protest.

and it was therefore held that the price of the land was dependent upon its distance from a completed railroad at date of entry, and not at the date of the application.

The decision of your office is affirmed.

SCHOOL LANDS-SETTLEMENT BEFORE SURVEY.

STATE OF WASHINGTON v. KUHN.

The act of February 28, 1891, amending sections 2275 and 2276, R. S., protects settlement on school land prior to survey, and said statute in that respect supersedes the provisions of sections 10, and 11, of the act of February 22, 1889.

Secretary Francis to the Commissioner of the General Land Office, Jan(I. H. L.) uary 8, 1897. (C. J. G.)

This case is in relation to the E. of the NW. and the N. of the NE. 1, Sec. 36, T. 21 N., R. 8 E., Seattle land district, Washington. On April 18, 1893, Edward A. Kuhn made homestead entry for this tract, alleging settlement thereon September 29, 1890.

On August 13, 1895, the State of Washington, by its Commissioner of Public Lands, entered protest against the allowance of said entry, and requested that a hearing be ordered to determine the rights of the respective parties.

The grounds urged in said protest were, that title to this land, being located in section thirty-six, had passed and become vested in the State of Washington by virtue of sections ten and eleven of the act of February 22, 1889 (25 Stat., 676), admitting the said State into the Union; that the title of the State of Washington in and to said land is not affected or invalidated by reason of the provision of the act of Febru ary 28, 1891 (26 Stat., 796), amending sections 2275 and 2276 of the Revised Statutes of the United States.

The State of Washington was admitted into the Union on November 11, 1889.

On October 7, 1895, Kuhn submitted his final proof; and on October 10, 1895, the local office dismissed the protest filed by the State of Washington, holding that the claim of said State was in contravention of the act of February 28, 1891 (supra). Kuhn's final proof being satisfactory final certificate was duly issued thereon.

The State of Washington filed an appeal from the above decision, and under date of November 29, 1895, your office affirmed the action of the local office. A further appeal on behalf of the State brings the case before this Department, the errors assigned being in line with the specifications contained in the protest against Kuhn's entry.

That portion of sections 2275 and 2276, incorporating the act of February 26, 1859 (11 Stat., 385), which has reference to the point under consideration, is as follows:

Where settlements, with a view to pre-emption, have been made before survey of the lands in the field, which are found to have been made on sections sixteen or thirty-six, those sections shall be subject to the pre-emption claim of such settler; and if they, or either of them, have been or shall be reserved or pledged for the use of schools or colleges in the State or Territory in which the lands lie, other lands of like quantity are appropriated in lieu of such as may be patented by pre-emptors, etc.

The act of February 22, 1889 (supra), has a provision in section 11 thereof as follows:

All lands herein granted for educational purposes. . . . shall not be subject to pre-emption, homestead entry, or any other entry under the land laws of the United States, whether surveyed or unsurveyed, but shall be reserved for school purposes only.

The act of February 28, 1891 (supra), amended sections 2275 and 2276 of the Revised Statutes to read as follows:

Where settlements with a view to pre-emption or homestead have been, or shall hereafter be made, before the survey of lands in the field, which are found to have been made on sections sixteen or thirty-six, those sections shall be subject to the claims of such settlers; and if such sections, or either of them, have been or shall be granted, reserved or pledged for the use of schools or colleges in the State or Territory in which they lie, other lands of equal acreage are hereby appropriated and granted, and may be selected by said State or Territory, in lieu of such as may be thus taken by pre-emption or homestead settlers . . . .

That the lands appropriated by the preceding section shall be selected from any unappropriated, surveyed public lands. . . . within the State or Territory where such losses or deficiencies of school sections occur, etc.

It has been decided by the Department that the provisions of sections 10 and 11 of the act of February 22, 1889, and those of sections 2275 and 2276 of the Revised Statutes, being in apparent conflict, the same are superseded by the act of February 28, 1891, and that the grants to these States are to be found in and governed by this later act. The Department, in the instructions to your office dated April 22, 1891 (12 L. D., 400), held,

that the provisions of the prior act of February 22, 1889, in so far as they are in conflict with those of said sections 2275 and 2276 of the Revised Statutes as amended by the later act of February 28, 1891, are superseded by the provisions of said sections as amended, and that the grants of school lands to those States mentioned in said act of February 22, 1889, are to be administered and adjusted under the provisions of this later general law.

It is thus apparent from the foregoing that until survey no rights of the State can attach to sections 16 and 36 under the grant; and that settlements made on said sections before survey shall be subject to the claims of such settlers.

The records of your office show that the plat of survey for the land. in question was filed in the Seattle land office, and the said land opened to entry, on February 7, 1893.

As previously set out herein Kuhn alleges settlement on September 29, 1890.

Your office decision is hereby affirmed.

PRACTICE-NOTICE-SCHOOL LANDS-SELECTION.

RICE. STATE OF CALIFORNIA.

Service of notice of contest by registered letter is not personal service within the meaning of Rule 9 of Practice.

The title of the State to school lands vests at the date of the completion of the survey, and if the land is not then known to be mineral in character, the subsequent discovery of mineral thereon will not divest the title that has already passed. The State by a school indemnity selection in lieu of land alleged to be mineral in character waives its claim to the basis, which may be thereupon disposed of as part of the public domain.

Secretary Francis to the Commissioner of the General Land Office, Jan(I. H. L.)

uary 8, 1897.

(P. J. C.)

The land involved in this appeal is the S. of the NW. of Sec. 36, T. 11 N., R. 8 W., M. D. M., San Francisco, California, land district, the plat of which was approved and filed in the local office August 9, 1875.

On March 20, 1895, John C. Rice filed an affidavit of contest, alleging that he has known the land since 1890, that it is mineral in character, and ever since deponent first knew the land it has been known to be mineral, being more valuable for mineral than for agricultural purposes.

A hearing was ordered and a copy of the notice sent by registered mail to the surveyor general of California. There was no appearance for the State at the hearing, or subsequently. The contestant submitted his testimony, and the local officers held the land to be mineral in character, known to be such at the date of the survey. No appeal was taken. Your office, by letter of November 5, 1895, reversed the action of the register and receiver on two grounds; first: that service of notice of a hearing by mail was without "authority of law or warrant in the rules of practice;" and second: that the land being in section 36 was granted to the State as school land, "unless said land was known to be mineral in character at the date when said land was surveyed." The appeal of Rice brings the case before the Department, and the rulings stated above are alleged to be error.

It is stated by counsel in his brief that your office decision is erroneous on the first proposition because

the record contains the surveyor general's written acknowledgment of the receipt of notice, which is sufficient to perfect service under the doctrine of Crowston v. Seal, 5 L. D., 213; Canal Co. v. Louisiana, 5 L. D., 479.

The only "written acknowledgment of the receipt of notice" to be found in the record is the return receipt for a registered letter.

The case of Crowston v. Seal is overruled in Elting v. Terhune (18 L. D., 586), where it is distinctly held that service of notice of contest by registered letter is not personal service within the meaning of Rule 9 of Practice. The other case cited by counsel does not treat of service of notice of contest, but of service of notice of a decision of your office upon one of the parties to a contest, and is therefore not an authority upon the proposition stated by counsel.