limits of the withdrawal of November 13, 1870, for the Northern Pacific Railroad company.

It was embraced in the homestead entry of Lorenzo D. Cross, made January 12, 1870, and canceled September 19, 1883.

On October 1, 1883, Joseph Weber made homestead entry for the land. Both Weber and wife subsequently died leaving a minor child, whose guardian conveyed the land to Pickard under section 2292, R. S. By the decision appealed from, your office found that the appellant's rights "attached in this vicinity" on January 29, 1870, and that the land, being then covered by the Cross entry, was excepted from the operation of its grant and subject to entry by Weber.

The appeal here is based upon the allegation that your office erred in finding that the appellant's rights attached as aforesaid on January 29, 1870.

In support of this allegation it is set out that the records of your office show that the map of the survey of the appellant's road opposite the land was filed in your office October 29, 1869, that the same was transmitted to the Department November 4, 1869, and returned with the approval of the Secretary (Cox) January 29, 1870.

Section 2 of the act of July, 1866, supra, after describing the extent of the grant to the appellant provides that upon filing "in the office of the Secretary of the Interior a map of the survey of said railroad, or any portion thereof, not less than sixty continuous miles from either terminus, the Secretary of the Interior shall withdraw from sale public lands herein granted on each side of said railroad, so far as located and within the limits before specified."

Counsel insist that under this provision the rights of the appellant attached to the lands designated by said map showing some sixty-one miles of its route on October 29, 1869, when the same was filed and not as held by your office on January 29, 1870, the date of its approval by this Department.

This contention is, I think, disposed of adversely to the appellant by the decision of the Department in the somewhat similar case of Prindeville v. Dubuque and Pacific R. R. Co. (10 L. D., 575).

In that case the Department declared that in 1882 the supreme court in the case of Van Wyck v. Knevals (106 U. S., 360), held that the right of a land-grant company attached to its granted lauds when a map designating its line of road is filed with the Secretary of the Interior "and accepted by that officer."

This ruling the Department further declared to be a modification of its decision of November 30, 1875, in the case of Swift v. California and Oregon R. R. Co., (2 C. L. L., 733) upon which counsel rely.

I must accordingly find that your office has correctly held the rights of the appellant to have "attached in this vicinity" on January 29, 1870. Consequently, the tract in question, having been excepted from

the appellant's grant by the prior entry of Cross, was subject to the entry of Weber under whom Pickard now claims.

The judgment of your office is affirmed, the appellant's claim to the land is rejected and Pickard's application for patent thereto may be considered.

The Northern Pacific Railroad company is not now in the case.

UNIVERSITY LANDS-APPLICATION FOR RE-INSTATEMENT.

STATE OF MINNESOTA.

An application of the State in 1889, for the re-instatement of university selections canceled in 1882 on the governor's relinquishment, comes too late for favorable action, where most of the lands have in the mean time been sold by the United States.

Secretary Noble to the Commissioner of the General Land Office, February 6, 1891.

By the act approved July 8, 1870 (16 Stat., 196), the Commissioner of the General Land Office was authorized and directed "in adjusting the claim of the State of Minnesota to lands for the support of a State university to approve and certify selections of land made by the governor of said State, the full amount of seventy two sections (40,080 acres), mentioned in the act approved February 26, 1857" (11 Stat., 166), without taking into account the lands that were reserved at the time of the admission of the State into the Union, and donated to said State by the act approved March 2, 1861 (12 Stat., 208).

By your office letter of November 12, 1889, you denied the application made by Mr. W. P. Jewett, on behalf of the State of Minnesota, for a re-instatement of canceled selections, Duluth district, and this appeal is taken from that judgment.

The following are the grounds of error assigned:

1. In holding that said State has no right to reinstatement upon the grounds stated by the Commissioner.

2. Error of the Commissioner in holding that the application is a motion to make new selections, and not for re-instatement of the selections erroneously disregarded. 3. Error by the Commissioner in not considering the charges against Buchanan affecting his good faith in making entry of the lands.

4. General error of law in denying the right of the State, and in rejecting its application for the re-instatement of the selections involved.

Under the grant above referred to, certain tracts were selected by the State in list No. 2, and filed in the local office December 12, 1873. On November 26, 1881, a list, consisting of thirty-nine subdivisions and covering 4,797.09 acres, and purporting to be a descriptive list of the lands selected and claimed by the State by list filed December 12,

1873 (above referred to), was filed in the local office. Appended to this list is the following:

I, J. S. Pillsbury, Governor of the State of Minnesota, do hereby release and relinquish to the United States all the right, title, claim, or interest which the State of Minnesota has acquired in the lands above described, and hereby request, in behalf of the State of Minnesota, that the selection by the State of said lands be canceled. In pursuance of the governor's request, the selections were canceled upon the records, May 20, 1882, and cash entries were afterwards made upon most of the relinquished tracts.

On September 30, 1889, Mr. Jewett, on behalf of the State, requested a cancellation of the cash entries, and a further consideration of the claims of the State under her original selections in behalf of the university. This request was accompanied by affidavit, made by Ex-Governor John S. Pillsbury, in which he states that on November 20, 1881, as governor of the State of Minnesota, he gave notice that the State relinquished the land;

and affiant is informed and verily believes that in 1885 W. P. Jewett, land agent of the State of Minnesota, notified the proper authorities at Washington not to restore said lands, or any of them, until the State could make a new examination of them and report the results of said examination; . . that said Jewett was notified that the said lands would not be restored until said report was made; that thereafter the said Jewett notified affiant, as chairman of the executive committee of the University of Minnesota, that said lands would be held subject to the further order of the State; and affiant employed one James A. Buchanan, in about the month of 1887, to make an examination of the said lands; that affiant believed Buchanan was acting for the Auditor of State, and in pursuance of his employment he examined the lands and made his report to affiant; that affiant paid Buchanan the sum of $86 for the work; . . that this affidavit is made for the purpose of obtaining the grant of so much of said lands as may be desired to the State of Minnesota as a part of the university land grant.

In a letter, dated February 26, 1889, Mr. Jewett speaks of Buchanan's employment to re-examine the lands and report the character thereof, and that he did make the examination, but instead of making his report to Governor Pillsbury, he made application at the land office, about May 27, 1888, to enter these lands at private cash entry, at minimum price; that the officers improperly allowed the entriesbeing upon lands which had never been offered at public sale; that the lands have been entered by various parties. He asked a suspension of the cash entries, and that a special agent be sent to examine the lands and attach the logs cut there from.

In your said office decision you say: "If any request for re-instate ment of the selections or for reservation thereof was ever made, I am unable to find trace of it in this office;" that your records fail to show any pledge given to Mr. Jewett for the re instatement of the cancellations as referred to in Governor Pillsbury's affidavit; that, although an agreement of the kind may have been made by a clerk to Mr. Jewett, six years after the cancellation, such agreement could have no official recognition or significance. It will be observed that the cancellation

was entered on the records May 20, 1852, on the request of Governor Pillsbury, made November 20, 1881.

Conceding that Mr. Jewett, as the State agent, in 1885, "notified the proper authorities not to restore said lands," such notitication was made three years after the cancellation of the selections; and it could only have been regarded as an application to make new selections.

On September 30, 1889, seven years after the cancellation, Mr. Jewett asks a further consideration of the claim of the State under her original selections. Most of the lands embraced therein were then taken at private cash entry, and without considering the question as to the va lidity of these entries, the application of the State, so tardily made, must be denied.

Your decision denying the motion to make said re-instatement is accordingly affirmed.

APPLICATION FOR SURVEY ISOLATED TRACT.

JAMES P. BUTCHER.

The practice of the Department in passing upon applications for the survey of isolated tracts of land, formed since the original survey of the township, is to refuse such application, where the Commissioner recommends such action, and where objection is made to the survey, unless the refusal of the application denies to the applicant a right under the general land laws.

Secretary Noble to the Commissioner of the General Land Office, Febru ary 7, 1881.

I am in receipt of your communication of the 20th ultimo, transmitting for my consideration the application of James P. Butcher, of Zora, Missouri, for the survey of an island situated in the Osage river, in Sec. 5, T. 40 N., R. 19 W., 5th P. M., Missouri, which you recommend be disallowed, in view of the claims of the owners of the lands upon the shores opposite the island, and the small amount of improvements made thereon by one Criss Williams, and not by the applicant.

The practice of the Department, in passing upon these applications for survey of isolated tracts of land formed since the original survey of the township, has been not to grant said applications where the Commissioner of the General Land Office recommends that they be disal lowed, and where objection is made to said survey, unless the refusal to grant said applications would deny to the applicants a right under the general land laws.

I see nothing in this application to take the case out of the general rule, and it is therefore disallowed.

SIOUX HALF BREED SCRIP-LOCATION-UNSURVEYED LAND.

ALLEN ET AL. v. MERRILL ET AL. (ON REVIEW).

One who by stipulation agrees to be impleaded in a pending proceeding with "the same force and effect" as though he originally had been made a party thereto, can not be heard to object to the authority of the Department to pass upon the validity of his claim thus presented.

Sioux half breed scrip is intended by the statute as evidence of a purely personal right in the half breed to locate and receive patent for the number of acres named therein, and can not be used as a means to secure title to lands except for the sole benefit of the half breed himself.

A location made by one acting in his own interests, and not for the use and benefit of the half breed, is in contravention of the statute under which the scrip is issued.

The right to locate this scrip on unsurveyed land can only be exercised where the half breed has made improvements on such land, and the improvements in such case are a condition precedent to the location, and must be made for the use and benefit of the half breed.

Circular regulations, not in conflict with the statute under which they are issued, have all the force and effect of law.

The validity of all rights claimed and set up by adverse parties may be properly determined on the final disposition of the case.

Secretary Noble to the Commissioner of the General Land Office, January 28, 1891.

Three several motions for review of departmental decision of Febru ary 18, 1889, in the case of Joseph W. Allen et al. v. Lewis Merrill et al. (8 L. D., 207), have been filed by parties claiming to be aggrieved by that decision.

The parties complaining are Lewis Merrill, who claims to act as attorney-in-fact for Joseph Brown, a half-breed Sioux Indian, and to represent William D. Williams, as attorney-in-fact, by substitution, for two other half-breed Sioux Indians, Mary B. Young (formerly Mary B. Lagree) and Lewis Carron, sole heir at law of Napoleon Carron, deceased; Edmund T. Winston, who claims to represent W. W. Hale as attorney-in-fact for Sophia Huot, also a half-breed Sioux Indian; and Michael H. Brown, claiming in his own right as homestead entryman. By the decision complained of certain locations made by Merrill and Winston, respectively, of certificates or scrip issued severally to the aforesaid half-breed Sioux Indians, under the act of July 17, 1851 (10 Stat., 304), covering lots 5 and 9, in Sec. 26, and the N. of the NW. 1, and SW. of the NW. 4 of Sec. 36, T. 16 N., R. 55 E., Miles City land district, Montana, and the homestead entry of Brown, for said lots 5 and 9, were directed to be canceled.

It appears that the township embracing the lands in question was surveyed in the field between August 23, and September 14, of the year 1881. The township plat was filed in the local office June 12, 1882, and the lands were opened to entry, after published notice for that purpose, June 19, 1882.