tion act, approved March 3, 1891, this agreement was ratified and confirmed and by section 11, it was provided: That any of said Citizen Pottawotamie Indians who have not yet selected allotments may make such selections anywhere within the thirty-mile square tract of land in said agreement described, not already selected or occupied in quantities as therein provided, And provided further, That such selections may be made at any time within thirty days after the approval of this act, and not thereafter. The Acting Commissioner of Indian Affairs, in his letter of March 17, 1891, divides applications for allotments under the act of 1872 into several classes with reference to the progress that had been made towards the issuance of certificates thereunder, but says in conclusion: In all the foregoing cases selections were made by the parties before the ratification of the agreement. The question now arises whether their selections can be completed by the issuance of certificates, or whether action in the matter of these selections is prevented by the passage of the act of March 3, 1891, ratifying the agreement with the Pottawatomies. The selections thus made were, when made, authorized by law and the express authority of the President. The right to these allotments was initiated by the selection and should, in my opinion, be perfected, unless such action be clearly prohibited by said act of March 3, 1891. I find no such inhibition in that act and must therefore conclude that the selections in question should be allowed to be duly completed. INDIAN LANDS-ALLOTMENT-SCHOOL SECTIONS. MARY MCCOY. The right of the Sac and Fox Indians to receive in allotment lands on which they had made valuable improvements prior to the ratification of the agreement of June 12, 1890, extends to lands in sections sixteen and thirty-six. Secretary Noble to the Commissioner of Indian Affairs, April 8, 1891. I acknowledge the receipt of your communication of 23rd instant, in which you refer to the case of Mrs. Mary McCoy, who claims to be a member of the Sac and Fox tribe of Indians in Oklahoma, and who states that she has for several years been improving a piece of land on the North Canadian River within the reservation, being in section 16, town 10, range 4, E. You call my attention to article II of the Sac and Fox agreement, ratified by act of February 13, 1891, which provides for the allotment to these Indians "Anywhere in the tract of country herein before described, except in sections sixteen and thirty-six in each Congressional Township," etc., and to article VI of said agreement which permits any citizen of the Sac and Fox nation who shall have made and owns valuable improvements on any lands in said reservation, he or she shall have the preference over any other citizen of said nation to take his or her allotments so as to embrace said improvements, provided they shall be limited as hereinbefore provided, as to boundaries and area. After consideration of the question presented I am of opinion that where a citizen of the Sac and Fox nation has, prior to the ratification of this agreement, made and owns valuable improvements on either sections sixteen and thirty-six in said reservation, he or she shall have the right to take his or her allotments so as to embrace said improve. ments, provided they shall be limited as to boundaries and area, as defined in article II of said agreement. You will please instruct the allotting agents accordingly. RIGHT OF WAY-ACT OF MARCH 3, 1875. WADENA AND PARK RAPIDS R. R. Co. The length of each section of road should be stated in the affidavit and certificate With departmental letter of the 3rd ultimo, I returned to you two maps showing the definite location of sections of the Wadena and Park Rapids Railroad Company's line of road, filed under right of way act of March 3, 1875 and submitted with your letter of February 12, last. They were not approved because the length of the sections of road was not given. The maps re-submitted with your letter of the 7th instant, are again returned herewith without approval as the defects have not been satisfactorily cured. The length of each section of road, the approval of the map of which is desired under the above act, should be stated in the affidavit and certificate attached to the map in accordance with the form prescribed in the regulations under the act. This has not been done in this case. When the omissions have been supplied, the maps will be considered. It is not sufficient that the length of the sections is inserted in the body of the map. PRE-EMPTION-TRANSMUTATION-ACT OF MARCH 2, 1889. LEWIS JONES. A pre-emptor whose claim was duly initiated prior to the passage of the act of March 2, 1889, is entitled, under section 2 of said act to transmute his filing to a homestead entry. First Assistant Secretary Chandler to the Commissioner of the General Land Office, April 11, 1891. I have considered the case of Lewis Jones on appeal from the decision of your office of January 15, 1890, rejecting his application to transmute his pre-emption filing No. 15,012, for the SW Sec. 34, T. 13 S., R. 25 W., Wakeeney land district, Kansas, to homestead entry, under the second section of the act of March 2, 1889 (25 Stat., 854). This application, made to the local officers December 11, 1889, was rejected by them for the reason that the records and the pre-emption declaratory statement No. 15,012, filed March 27, 1887, show that the applicant settled upon this land March 2, 1889, and not prior thereto. On appeal, your office affirmed this ruling of the local officers, and the claimant, in appealing to this Department, filed an affidavit, bearing date December 11, 1889, in which he explained that an error had been committed in making out his pre-emption declaratory statement; that he was sick at the time and not able to give the business his personal attention; that a neighbor carried his papers to an attorney to make out the proper application, and, through error, the day of settlement was stated as March 2, 1889, instead of February 27, 1889. In his said affidavit the claimant averred that his improvements on said land, consisting of a house sixteen by twenty feet, a stable, and a well of water, estimated in value at $95, had all been completed prior to February 27, 1889; that he and his family moved into the house built on this land, with their household goods and chattels, on the 27th of February, 1889, and that they had resided there continuously ever since; that in addition to the improvements above mentioned, he had at the time of making his affidavit about forty acres of the land broken. These averments of the claimant are corroborated by two witnesses, and the attorney who prepared the pre-emption papers of claimant filed a separate affidavit, in which he explains how the error in the date of settlement occurred. On the testimony presented in these affidavits, he asks to have the error corrected and his application to transmute his pre-emption filing to a homestead entry allowed. No adverse claim has been filed, and the statements made in the above-mentioned affidavits are not controverted. The day of settlement should therefore be corrected and made to date from February 27, 1889. Under the second section of the act of March 2, 1889 (25 Stat., 854), it is provided : that all pre-emption settlers upon the public lands whose claims have been initiated prior to the passage of this act, may change such entries to homestead entries, and proceed to perfect their titles to their respective claims under the homestead law, notwithstanding they may have heretofore had the benefit of such law. In the case of James Barry (10 L. D., 634), this Department, in construing that part of the act of March 2, 1889, referred to, used the following language: Under the legislation with respect to homesteads and pre-emptions as it stood prior to the passage of the act of March 2, 1889, a settler was entitled to take a claim of one hundred and sixty acres under each law, and thus gain title to three hundred and twenty acres of land. Under the law as it now stands, pre-emptors within the proviso under discussion are entitled to transmute their claims into homestead entries, although they may have perfected one entry under the homestead law. From the evidence found among the papers in the case, I am of the opinion that Lewis Jones initiated his pre-emption filing for the land in question prior to the passage and approval of the act of March 2, 1889, and should be allowed to transmute his pre-emption filing to homestead entry. The decision of your office is accordingly reversed. WAGON ROAD GRANT-SETTLEMENT CLAIM. OREGON CENTRAL MILITARY WAGON ROAD CO. v. CANTER. A claim based upon settlement and residence, existing when the wagon road grant of July 2, 1864, became effective, excepts the land covered thereby from the operation of said grant. Secretary Noble to the Commissioner of the General Land Office, April 13, 1891. This record presents the appeal of the Oregon Central Military Wagon Road Co., from your office decision of October 18, 1889, in the case of said company against Alexander F. Canter, involving the S. SE. and SE. SW. 4, Sec. 3, T. 30 S. R. 46 E., Lakeview, Oregon. These tracts are, as stated by your office, within "the three mile granted limits of the grant by the act of July 2, 1864 (13 Stat., 355), the right of which attached " February 28, 1870, upon the filing by said company of the map showing the definite location of its road. On February 28, 1874, Canter, alleging settlement June 15, 1873, filed pre-emption declaratory statement including said tracts, and the NE. NE. of Sec. 10, in the said township. He tramsmuted said filing to homestead entry May 15, 1880, and made final proof before the deputy clerk of the county court December 10, 1883, upon which final certificate was issued January 16, 1884. On October 18, 1889, your office examined the case and rejected the company's claim to the land involved. The company appeals from this action. It appears from Canter's proof that he made settlement and estab lished residence on the land July 1, 1864, that with his wife and five children, he has lived thereon continuously and that his improvements, valued at $1000 comprise a house twenty-four by twenty-four feet, "outhouses, corrals, fencing, &c., &c.," and about thirty acres culti vated for fifteen years. The act of 1874, supra, grants to the State of Oregon to aid in the construction of a military wagon road between specified points "alternate sections of public lands designated by odd numbers for three sections in width on each side of said road," with the proviso that " any and all lands heretofore reserved to the United States by act of Congress or other competent authority be and the same are reserved from the operation of this act." By the act of December 26, 1866 (14 Stat., 374) supra, the said grant was amended as follows: That there be, and is hereby granted to said State, for the purposes aforesaid, such odd sections or parts of odd sections not reserved or otherwise legally appropriated, within six miles on each side of said road, to be selected by the surveyor-general of said State, as shall be sufficient to supply any deficiency in the quantity of said grant as described, occasioned by any lands sold or reserved, or to which the rights of preemption or homestead have attached, or which for any reason were not subject to said grant within the limits designated in said act. Your office found that when the company's right attached on the definite location of its road, the land was covered by Canter's "preemption claim" and that, consequently, under the "terms of the amendatory act of December 26, 1866 (14 Stat., 374)," it was excepted from the grant. Counsel for the appellant insist that the land passed with the grant under the act of 1864, because that act did not except either the claim or the right of a pre-emptor therefrom, and that it so passed under the act of 1866, because the claim of Canter was not a pre-emptive right, and also, conceding such claim to be a pre-emptive right, because Canter is bound by the date of settlement alleged in his declaratory statement, and such date is subsequent to the attachment of the company's rights on definite location. In the case of the Willamette Valley Wagon Road company v. Mortou (10 L. D., 456), involving land in Oregon, the Department considered the wagon road grant to said State by the act of July 5, 1866 (14 Stat., 89). This grant was of "alternate sections of public lands designated by odd numbers three sections per mile, to be selected within six miles of said road," and was made subject to the same words of exception heretofore quoted from the act of 1864, supra. It was held in the case cited that the grant by the act of July 5, 1866, |