part of lot 6 which would be included in lot 11 appears to have been patented to the State as swamp land February 8, 1873.

The Southern Pacific Railroad Company of California, by its attor ney, resists the application of the amendment of the segregation map, and claims said lot 1 as part of an odd section enuring to said company by the act of July 27, 1866 (14 Stat., 292). You disapproved the amended diagram for the reason that—

An examination of said State survey shows that it was not made in accordance with the system of surveys adopted by the United States. By the act of September 28, 1850, entitled "An act to enable the State of Arkansas and other States to reclaim the swamp lands within their limits (9 Stat., 519), the whole of those swamp and overflowed lands, made unfit thereby for cultivation," which were unsold at the date of the passage of the act, were granted to the State of California. Section 3 of said act provides

That in making out a list and plats of the land aforesaid, all legal subdivisions the greater part of which is wet and unfit for cultivation shall be included in said list and plats; but when the greater part of a subdivision is not of that character, the whole of it shall be excluded therefrom.

The act from which the foregoing quotation is made is a present grant, vesting in the State, from the day of its date, the title to all the swamp and overflowed lands within the State that were then not sold, and requiring nothing but the determination of boundaries to make it complete. (Wall et al. v. The State of California, Copp's L. L., 1882, p. 1848; Railroad Company v. Smith, 9 Wall., p. 95.)

In order that there should be no difficulty in determining the boundaries of the granted land, Congress, in section 3 of the act, defined with precision the lands which should be taken by the State under the grant as "swamp and overflowed lands," to wit: "All legal subdivis ions the greater part of which is wet and unfit for cultivation." When the character of the greater part of a legal subdivision has been ascertained by properly constituted authority, the character of the whole of that subdivision is determined, and the question as to whether title to such tract will or will not pass under the grant is settled by virtue of the statute itself.

In this case it appears that the segregation surveys, made both by the Government and the State, agree so far as the character of "the greater part" of the NE. 4 of the NE. of Sec. 7 is concerned, but the approved segregation map of that township shows lot 1, which only contains 15.69 acres, as dry land, and the remainder of the 40 as swamp land, and in this particular I think the said map should be amended. The remainder of the amendment, asked to be made under the desig nation of lot 11, includes 3.95 acres already patented to the State as herein before stated, and the title thereto having passed to the State as

swamp land, no further act on the part of the Government, as affecting the legal status of said tract, is required under the grant.

The whole of the NE. of the NE. of Sec. 7 passed to the State under the grant when the character of the greater part of such subdivision was determined to be swampy; hence the segregation map of that township should designate lot 1 as swamp land, on account of the character of the greater part of the legal subdivision of which it is a portion.

Your decision is accordingly modified as indicated in the foregoing.

DIVISION F.-RAILROADS.

I. ABANDONMENT.
II. CERTIFICATION.

III. DEFINITE LOCATION.

IV. FORFEITURE.

V. HOMESTEADS.

VI. INDEMNITY LANDS.

VII. INDIAN RESERVATIONS.

VIII. NEW MEXICO DONATION.

IX. PRACTICE.

X. PRE-EMPTION.

XI. RELINQUISHMENTS.
XII. RIGHT OF WAY.
XIII. SWAMP LANDS.

XIV. TIMBER CULTURE.

XV. WITHDRAWALS.

I.—ABANDONMENT.

NORTHERN PACIFIC RAILROAD v. HESS.

A valid pre-emption claim had excepted a tract from the withdrawal on general route; when the settler afterwards abandoned it, though on erroneous advice and information by the local officers, the land became public, and passed to the company by definite location of the road.

Secretary Teller to Commissioner McFarland, September 21, 1883.

SIR: I have considered the case of the Northern Pacific Railroad Company . Theodore Hess, involving the S. of the SW. of Sec. 21, T. 18 N., R. 18 E., Yakima, Wash., on appeal by the company from your decision of September 29, 1881, holding that the tract was excepted from their grant.

It appears that Hess, being qualified, settled on said tract March 7, 1873, and on March 31, 1873, filed declaratory statement No. 491, cov ering this and the adjoining tract, namely, the N. of the NW. of Sec. 28; that on November 12, 1873, he applied to make proof and payment, which he was not permitted to do for want of his naturalization papers; and that, having procured the necessary proofs, he twice afterwards applied to make proof and payment, and was informed by the local officers that the tract had been withdrawn for the benefit of the railroad company, and that therefore he could not acquire it under the pre-emption laws. It appears further that, acting on this information, he homesteaded the tract in the even section on July 21, 1874, applied to the railroad company to purchase the tract in controversy in August,

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1874, and built a house on the former tract in December, 1874, where he has since resided. In June, 1881, he proved up his homestead claim, and at the same time applied to amend it so as to cover the tract in controversy; but to this the railroad company object on the ground that the land was withdrawn for their benefit on general route August 15, 1873, and again on amended location July 18, 1879.

I concur in your opinion that on August 15, 1873, Hess had a valid claim to the tract, which the withdrawal of that date could not defeat, but I find myself unable to agree with your conclusion from the evidence that he has continued to assert a claim to the land. The land grant to the company (sec. 3, act of July 2, 1864) embraced all lands to which the United States had full title, not reserved, &c., "and free from pre-emption, or other claims or rights, at the time the line of said road is definitely fixed." Hence if the tract in controversy was actually abandoned, though upon erroneous information as to the fact of with. drawal in 1873, it passed to the United States, was included in the withdrawal of 1879, and passed to the company at date of definite location. The railroad company assert the abandonment, and Hess denies it; but there is not sufficient evidence before me on which to determine the truth of the matter, and it is suggested that a hearing be had before final disposition of the case.

Your decision is modified accordingly.

II. CERTIFICATION.

REVERSIONARY RIGHTS-ACT OF JUNE 3, 1856.

ALABAMA RAILROAD LANDS.

The State is entitled to have certification of the lands in question for purposes of identification, leaving all questions of reversionary right to the action of Con

gress.

Secretary Teller to Commissioner McFarland, November 23, 1883.

SIR: I have considered and heard oral argument upon a request of the governor of Alabama for a review and modification of my decision of December 21, 1882 (9 Copp., 200), in the matter of the application for certification of lands granted to the State by act of June 3, 1856 (II Stat., 17), for what is now the Alabama and Chattanooga Railroad, with other roads named therein, which grant as to the road in question was revived by act of April 10, 1869 (16 Stat., 45).

These lands lie within the intersecting lines of the above-named completed road and the Tennessee and Coosa, uncompleted, and the legislature of the State, since the date of my decision, has, by certain acts approved respectively February 20, and February 21, 1883, made disposal of the same for the benefit of the completed road.

By said decision it was held that the granting act of 1856 operated as a limitation upon the power of the State to dispose of the granted lands except as the several roads should be constructed; and as by the second proviso it was declared "that the lands hereby granted for and on account of said roads, severally, shall be exclusively applied in the construction of that road for and on account of which such lands are hereby granted, and shall be disposed of only as the work progresses, and the same shall be applied to no other purpose whatsoever," it was held that such a tenancy in common was created in trust in favor of all the several intersecting roads, as to deprive the State of any power to confer the grant upon one, or to dispose of it for the benefit of one to the exclusion of the others; and that the only power of disposal brought into exercise by the completion of one road was the power to make distribution for quantity to the extent of the lands earned by the completed road, leaving the residue, either as an undivided share or segregated by act of partition, for future disposal in favor of any intersecting road, as the same should be completed.

It is now urged by counsel that this construction of the proviso is not necessary to effect the purposes of the limitation; that there are, in reality, two descriptions of lands which may be brought into classification for the purposes of adjustment under the grant, viz:

1. Lands lying within the limits of each several road outside the intersecting lines, title to which as to one can have no relation whatever as to another; and which, not being within the reach of the other, should not, by any act of the State, be set over for the benefit of any other than the road to which they properly attach under the grant.

2. Lands lying within the intersecting limits, which it is and must be within the province of the State to apportion in such manner as to secure proper connections and adjustments; and the equitable bestowment of which, subject to judicial or legislative control, is purely a matter of State concern, which it was not, and should not be, the intention of Congress to limit or restrain.

I am not prepared to say that this position is untenable, considering the fact that title passed to the State by the granting act upon definite location of the first road located, and that whatever of right accrued to subsequently located intersecting roads must be enjoyed under equitable rules and principles, subject to the general scope and limitations of the granting act; considering, also, that if a common tenancy in interest was acquired by any cestui que trust in said lands, the State must have power, in order to make any partition in severalty, to exercise some prerogative of disposal over the whole, embracing each and every parcel, and so, in effect, encroach, to that extent at least, upon the limitation of the proviso, if it in reality held back such power to await the completion of all the roads; and considering further the principle that a limitation in a proviso in restriction of a general grant takes nothing out of the grant except the special matter contained in the ex