No. 50). This list contained a specification of losses as bases for the selections but the same was not arranged tract for tract with the selections.

The losses were of unsurveyed lands within the diminished Crow Indian reservation.

Under the orders issued in accordance with the directions contained in the decision in the case of La Bar v. Northern Pacific Railroad Company (17 L. D., 406), the company filed its rearranged list on May 14, 1894.

On July 23, 1891, Muller tendered a homestead application for this land, accompanied by affidavits in which he alleged settlement upon the land in the spring of 1889, and that he, together with his family, have continuously resided thereon since that time.

Said application was, by the local officers, rejected for conflict with the selection by the company from which action Muller appealed.

From the record transmitted, it further appears that during the pendency of said appeal, to wit, on May 24, 1894, Muller filed a contest against the company's selection alleging substantially the same as contained in his affidavits filed-in support of his homestead application. Upon said contest hearing was set for December 10, 1894, and service duly made.

At the appointed time both parties appeared and after the witnesses offered by Muller had been examined and cross-examined by the company, the case was closed, the company offering no testimony.

An examination of this testimony clearly sustains the finding of the local officers, which is as follows:

That said contestant settled upon said W. of NE. ‡ and W. of SE. 1, Sec. 15, T. 146 N., of R. 86 W., in the fall of 1887, that himself and family have continuously resided thereon ever since, that he has yearly subsequently to 1889 raised crops thereon, that his improvements amount to the value of $585, that the said contestant was a qualified homestead entryman when he settled upon said tract, that he settled upon said tract with the view of acquiring the same as a homestead and that he has maintained his residence thereon since with the like intention.

The record of this hearing had not been received at your office at the time of the rendition of your decision appealed from (April 26, 1895), in which it was held, in effect, that the company's selection list of July 14, 1890, was not a valid selection because the losses were not arranged tract for tract with the selected lands, and, therefore, that said selection was no bar to the allowance of Muller's homestead appli cation tendered, as before stated, on July 23, 1891.

This is clearly in conflict with the ruling made in the case of the St. Paul, Minneapolis and Manitoba Ry. Co. v. Lambeck (22 L. D., 202), in which it was held that

Indemnity selections accompanied by designation of loss in bulk, made prior to the specific departmental requirement that lost lands should be arranged tract for tract with the lands selected, operate to protect the right of the company as against subsequent applications to enter, made prior to said requirement, and the rearrangement of losses in accordance therewith. (Syllabus.)

Upon the record before me it must therefore be held that the company's rights under its selection date as of the presentation of its list July 14, 1890.

The question then arises, had Muller such a claim to the land at that date as would bar the selection?

While it is true the hearing, herein before referred to, was held during the pendency of Muller's appeal from the rejection of his application, yet, as the company appeared, without objection, I can see no good reason for further hearing, and the allegations of settlement and residence made by Muller in support of his claim are considered as sustained.

The land was, therefore, in the occupation and possession of Muller, a qualified settler, at the date of selection, and such selection can not bar the consummation of his claim which he has sought to perfect by the tender of his application under consideration.

For this reason your office decision is affirmed, and upon completion of entry by Muller the company's selection will be canceled.

RAILROAD GRANT-RES JUDICATA-ACT OF MARCH 3, 1887.

HARRIS v. NORTHERN PACIFIC R. R. Co.

A decision of the Department, in accordance with the rulings then in force, that a certain tract of land passed under a railroad grant, does not, in view of the provisions of the act of March 3, 1887, requiring the adjustment of railroad grants "in accordance with the decisions of the supreme court," preclude subsequent departmental action, on the application of a third party, under the later decisions of said court.

Secretary Bliss to the Commissioner of the General Land Office, May 18, (W. V. D.) (J. L. McC.)

1897.

The Northern Pacific Railroad Company has appealed from the decision of your office, dated August 3, 1895, rejecting its claim to the N. of the NW. of Sec. 23, T. 4 N., R. 10 W., Helena land district, Montana.

Said land is within the primary limits of the grant to the railroad company named. On April 16, 1872, one Isaac Harris filed pre-emption declaratory statement for the same, including also the S. of the SW.. of Sec. 14, adjacent. The latter eighty acres he afterward entered under the homestead law, and applied to make additional homestead entry of the eighty acres in the odd section-which was allowed. Thereupon a contest arose between him and the company, the details of which are fully set forth in the departmental decision of April 10, 1891, in said case (12 L. D., 351); and need not be herein repeated. The Department held therein that the tract in the odd section inured to the company.

Said decision was in strict accordance with departmental rulings at that time prevailing. Since then, however, the United States supreme court has rendered a decision in the case of Whitney v. Taylor (158 U. S., 85), to the effect that an uncanceled pre-emption filing of record at the date when a railroad grant becomes effective excepts the land covered thereby from the operation of the grant, even though at such time the statutory life of the filing has expired. Said supreme court decision vitally affects the case now under consideration.

At the date when the withdrawal upon general route became effective (February 21, 1872), and when the map of definite location was filed (July 6, 1882), the tract was embraced in the pre-emption declaratory statement of one Bernhard H. Dudden, filed January 24, 1872, and still uncanceled and of record on the books of your office. Under the ruling in said Whitney-Taylor case, therefore, the land was excepted from the operation of the grant.

Isaac Harris, the homestead claimant in the case decided by the Department on April 10, 1891 (supra), is dead; and his wife, Mary Harris, now applies to enter the land under the homestead law.

The company contends that, inasmuch as the Department, on April 10, 1891, awarded the lot to it, the matter is res judicata, and can not be reopened; that

Isaac Harris's homestead entry for this land having been canceled in 1891, pursuant to the decision of the Secretary, it is not competent for the Commissioner to allow his widow, Mary Harris, to offer proof upon said canceled entry, and to secure the issuance of patent thereon.

The above is not quite an accurate statement of the facts. Isaac Harris's additional homestead claim is not in question here. Mrs. Harris is not seeking to secure the issuance of patent upon her hus band's canceled entry. She is applying to enter in her own right certain lands, which under the decisions of the supreme court cannot be held to have passed to the company under its grant, and must therefore be treated as public lands subject to entry by any qualified applicant. Congress by act of March 3, 1887 (24 Stat., 556) has provided that certain railroad grants shall be adjusted by the Secretary of the Inte rior, "in accordance with the decisions of the supreme court." The fact that the Department has at some time heretofore held that the land here in controversy had passed to the railroad company, does not prevent its now adjudicating the new question that has arisen upon Mrs. Harris's application to enter, in accordance with the decision of the supreme court in the case of Whitney v. Taylor (supra).

Your office letter of August 3, 1895, (supra) holding that the land did not inure to the railroad company, was in direct contravention of the departmental decision of April 10, 1891 (supra). While the Department possesses authority by virtue of the act of March 3, 1887 (above cited), to take action in the case irrespective of its former decision awarding the land to the railroad company, your office had no such authority and

jurisdiction. Hence your office letter has been considered simply in the light of a recommendation. In such recommendation, however, I concur, and hereby direct that the claim of the company be rejected, and that Mrs. Harris's application to make homestead entry of the land be allowed, unless some other reason to the contrary shall appear.

TIMBER CULTURE FINAL PROOF-ACT OF MARCH 4, 1896.
JOHN W. BURNS.

The act of March 4, 1896, relieves a timber culture entryman from the requirement of appearing before the local office, or an officer designated by statute within the county in which the land is situated, on the submission of final proof, but does not modify prior legislation or regulations thereunder with respect to the testimony of his witnesses.

Secretary Bliss to the Commissioner of the General Land Office, May 18, (W. V. D.) 1897.

(G. C. R.) John W. Burns has appealed from your office decision of February 15, 1896, which affirms the action of the register and receiver in rejecting the final proof, offered November 5, 1895, in support of his timber culture entry (Garden City series), made June 4, 1885, for the SW. of Sec. 22, T. 31 S., R. 36 W., Dodge City, Kansas.

The final proof was rejected because the same was not taken before the register and receiver, or before an officer within the county in which the land is situated.

The proof appears to have been taken before J. W. Johnson, judge of the probate court in Harvey county, Kansas, about two hundred miles distant from the county in which the land lies.

Mr. Burns in his appeal alleges no specific error, but contends that the law "does not contemplate legal or moral impossibilities;" that the peculiar state of affairs

in the present desolate and almost deserted counties of western Kansas should not deprive the bona fide claimant and cultivator of the timber culture claims of his moral right to enter the tract, even though the wise provisions of the General Land Office be disregarded.

The act approved May 26, 1890 (26 Stat., 121), provides as follows:

That the proof of settlement, residence, occupation, cultivation, irrigation, or reclamation. the affidavit of non-alienation, the oath of allegiance, and all other affidavits required to be made under the homestead, pre-emption, timber culture, and desert land laws, may be made before any commissioner of the United States circuit court, or before the judge or clerk of any court of record of the county or parish in which the lands are situated; and the proof, affidavit, and oath, when so made and duly subscribed, shall have the same force and effect as if made before the register and receiver, wlien transmitted to them, with the fee and commissions allowed and required by law.

The proof, as shown above, was taken before a judge of a probate court in Kansas, which court, by section 1, chapter 29 (p. 325), of the

compiled laws of Kansas (1881), is declared to be a court of record, and in this respect met the requirements of the statute above quoted. But at the time it was taken (1895) it did not meet the requirements of the statute or the regulations thereunder, in that it was not taken before the register and receiver or before a commissioner of the United States circuit court having jurisdiction over the county in which the land is situated, or before a judge or clerk of any court of record in such county. Edward Bowker, 11 L. D., 361.

The act approved March 4, 1896 (29 Stat., 43), provides:

That timber culture claimants shall not be required, in making final proof, to appear at the land office to which proof is to be presented or before an officer designated by the act of May twenty-sixth, eighteen hundred and ninety, within the county in which the land is situated; but such claimant may have his or her personal evidence taken by a United States court commissioner or a clerk of any court of record under such rules and regulations as the Secretary of the Interior may prescribe.

This act was passed after Burns made his final proof, but, under the rule laid down in the case of S. Lizzie Guernsey (22 L. D., 526), he is entitled to its benefits, and his personal evidence, taken before any officer named in the act of 1890 (supra), in any part of the United States, might be accepted; but this does not relieve him from the necessity of conforming to the statute and regulations thereunder in respect to his proof witnesses. Apart from the claimant's personal testimony, the regulations in regard to the manner of taking final proof in timber culture cases have not been changed. The decision appealed from is accordingly affirmed.

RAILROAD GRANT-INDEMNITY SELECTION-DESIGNATION OF LOSS.

PAGE. NORTHERN PACIFIC R. R. Co.

Indemnity selections, unaccompanied by designation of loss, made prior to the departmental order waiving such designation, are protected by said order in the absence of any intervening adverse claim.

On the rearrangement of an indemnity list, based on losses alleged in bulk, so that the lands selected, and the losses specified, shall correspond tract for tract, the rights of the company date as of the presentation of the first list, so far as the selections and losses are the same.

Indemnity selections of the Northern Pacific resting on alleged losses east of Superior City, regular and legal under the construction of the grant at the time when made, should be protected under the changed construction of the grant, with due opportunity to assign new bases, as against intervening adverse claims. Indemnity selections, made under the departmental order waiving specifications of loss, are valid, and while of record a bar to the allowance of adverse claims. Secretary Bliss to the Commissioner of the General Land Office, May 18, (W. V. D.) (F. W. C.)

1897.

With your office letter of April 23, 1897, was forwarded a petition, filed on behalf of Thomas M. Page, in which it is moved that the approval given by my predecessor (Mr. Secretary Francis), on March