The court failed to concur in this view, but held that lands within the limits of the grant for said road, lying within the territory of Minnesota at the date of the grant, though now in North Dakota, were subject to the operation of the grant, and that the Northern Pacific railroad under which Phelps claimed, never had any title to the land in controversy. The tract lay also within the indemnity limits of the grant for that road.

The diagram submitted shows the lands in North Dakota affected by this decision. You propose to instruct the local officers to withdraw from entry any vacant lands within the granted limits, as shown by the diagram, if any such remain. You state, however, that with the exception of a small portion included within the indemnity limits of the Northern Pacific road, "about all the odd-numbered sections" included within such limits have been disposed of by the United States under the general land laws, and in most cases patents have issued; that the right of the company attached on May 10, 1869, and that the dispositions made are long subsequent thereto.

The terminus of the road is at Breckenridge, Minnesota, a town lying on the Bois de Sioux River, between said State and North Dakota.

The line forming the terminal limit of the grant, formerly established, runs in a north-easterly direction from Breckenridge. By continuing this line through the terminus of the road into North Dakota, you fix the terminal limit now proposed.

The only objection to this line is the suggestion of your office that it is questionable whether the tract actually litigated in the Phelps case, supra, would be included within the limits of the grant so fixed. On this point you say that in view of the opinion of the court, you have resolved the doubt " to coincide with the opinion of the court, all parties to the suit having agreed to such a condition." The question seems to be merely whether the terminal line should pass north or south of the land involved in the Phelps case. In view of the decision of the court, I approve your action in that matter.

You suggest that lands within the indemnity limits be not withdrawn. "in view of the repeal contained in section 4, of the act of September 29, 1890, commonly known as the forfeiture act." Said section repeals the provisions contained in certain grants (among them the one in question) requiring the Secretary of the Interior to reserve lands within the indemnity limits thereof.

This suggestion is approved and also the withdrawal as proposed. You state that the settlers within the grant and those claiming under them are "at the mercy of the company," and that "it would seem to be a case calling for legislative action." Should it appear, when all the facts are before you, that such action is necessary you will please sub mit such suggestions in the premises as may seem proper, together with the facts bearing upon the question.

BRANCH LINE.

Acting Secretary Chandler to the Commissioner of the General Land Office, April 18, 1891.

I am in receipt of your letter of the 28th ult., forwarding for my approval a diagram showing an extension of the limits of the grant for the St. Paul, Minneapolis and Manitoba Railway Company, St. Vincent Extension, into the State of North Dakota, in conformity with the decision of the supreme court in the case of said company against Ransom Phelps, decided December 22, 1890 (137 U. S., 528). You call attention to the fact that you have already withdrawn from entry the odd numbered sections within the ten-mile primary limits of the grant for the main line as extended into the Dakotas, which action was authorized by departmental letter of February 3, 1891, on the authority of said Phelps case. That letter also approved a diagram showing the limits of said grant along the main line of the road as extended under the Phelps case.

That case held that an odd numbered section lying within six miles of the main line of said road though within the State of North Dakota passed to the company under the grant. The St. Vincent Extension or branch line, provided for in the original act of March 3, 1857 (11 Stat., 195), was authorized to adopt its present location by act of March 3, 1871 (16 Stats., 588), which provided:

That the Saint Paul and Pacific Railroad Company may so alter its branch lines that, instead of constructing a road from Crow Wing to St. Vincent, and from St. Cloud to the waters of Lake Superior, it may locate and construct in lieu thereof, a line from Crow Wing to Brainerd, to intersect with the Northern Pacific Railroad, and from St. Cloud to a point of intersection with the line of the original grant at or near Otter Tail or Rush Lake, so as to form a more direct route to St. Vincent, with the same proportional grant of lands to be taken in the same manner along said altered lines, as is provided for the present lines by existing laws.

The decision in the Phelps case seems applicable to the branch as well as the main line.

The diagram is accordingly approved, and you are authorized to order a withdrawal within the primary limits of the branch line, as shown thereon.

The suggestions in said letter as to proposed negotiations with said company, under Senate Resolution of February 28, 1891, looking to an adjustment of the conflicting claims of said company and settlers within said limits, will be considered in another communication.

DESERT LANDS-ENTRY BEFORE SURVEY.

CIRCULAR.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Washington, D. C., April 20, 1891.

Registers and Receivers, United States Land Offices.

Your attention is called to Departmental decision of October 31, 1890, (11 L. D., 414) in the case of C. B. Mendenhall.

Final proof must be made on all desert land entries, when sought to be perfected under the act of March 3, 1877, (19 Stat., 377) within three years, and when sought to be perfected under the act of March 3, 1891, within four years from date of entry. Proof on entries made prior to August 1, 1887, can be made without publication of notice to do so. 9 L. D., page 672. Publication of notice of intention to make final proof, must be made in all cases of entries instituted since that time. When the land has not been surveyed, the notice must contain a de scription of the land as nearly as possible without a survey, by giving, with as much clearness and precision as possible, the locality of the tract, with reference to the already established lines of survey, or to known and conspicuous landmarks, so as to admit of its being readily identified.

When final proof has been submitted on an entry upon unsurveyed land, if no objections exist in your office, you will approve the same and forward it to this office, without collecting the purchase money and without issuing the final papers. When the land shall have been surveyed, you will require the party to make proof, in the form of an aff davit, corroborated, showing the legal subdivisions of his claim. When this has been done you will correct your records to make them describe the land by legal subdivisions, and, if the proof submitted to this office has been found satisfactory, and if no objection exists in your office, you will issue final papers upon payment of the amounts due.

Very respectfully,

Approved.

F. H. CARTER,
Commissioner.

GEO. CHANDLER,

Acting Secretary.

APPLICATION TO ENTER-APPROPRIATION.

WILLIAM C. RUNYON.

An application to enter must be rejected where the land is covered by the prior entry of another and embraced within a pending contest.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, April 20, 1891.

I have considered the appeal of William C. Runyon from the decision of your office, dated June 16, 1890, rejecting his application to make homestead entry for lots 11, 12, 13 and 15, Sec. 5, T. 11 N., and lot 4, Sec. 32, T. 12 N., R. 3 W., Guthrie, Oklahoma.

The application was made on January 26, 1890, and rejected by the local officers for the reason that it conflicted with the homestead entry of Colonel Parker, made April 24, 1889, for N. SE. 4, SE. † SE. 1, and lots 3 and 4, of said section 32, with the homestead entry of John Gayman made April 25, 1889, for lots 2, 3, 12, 13, 14, 15 and 18, of said section 5, and with the homestead entry of John A. J. Baugness, made April 26, 1889, for lots 4, 5, 6, 7 and 11, of said section 5.

Your office, by said letter, affirmed that action on the ground that "the land in question, being covered by existing entries, was not subject to entry by any other person."

Said letter further states that upon examination it appears that said entries of Parker, Gayman and Baugness, were improperly allowed for the reason that the land entered in each case, lies on both sides of a meandered stream, the North Fork of Canadian River; that Baugness' entry was suspended by your office on February 17, 1800, and that appeal from such action is now pending before the Department.

Said letter then suspends said entries of Parker and Gayman and directs that each of these claimants be notified to elect within thirty days "which portion of his claim he will relinquish, so that the land remaining will be confined to one side of such stream;" and that

should either of the parties desire, he may relinquish his entire entry, in which event an application to make a second entry for a specific tract will receive due consideration. If either of the entrymen fail or refuse to take action within the time specified, his entry will be held for cancellation.

It appears that on July 15, 1890, Parker relinquished said lot 4, being the portion of his entry in conflict with Runyon's application. The entries of Gayman and Baugness are still of record as far as appears from this record. Appellant alleges that on September 29, 1890, your office held for cancellation Gayman's entry but it is not alleged that any finality has been reached in the matter.

It must be apparent that Runyon's application could not have been allowed when made, for the reason that the tracts were covered by other entries. Such entries are not necessarily void; at most the entryman would be allowed to elect what part of his entry, in a compact body, he

would retain. In any event, that question is not presented by this record. The only matter here now is the disposition of the application. The entries may possibly not be disturbed.

It appears from the letter of the local officers transmitting the record that contests were filed against Gayman's entry on June 5, July 23, August 23, and September 2, 1889, and against Baugness's entry on June 6, July 24, and August 7, 1889 and that these contests are pending and undisposed of.

As the tracts in question were covered by prior entries and, moreover, embraced in said contests, said application was properly rejected. See Ryan v. Central Pacific R. R. Co. (12 L. D., 11).

Said decision is, accordingly, affirmed.

RAILROAD LANDS-FORFEITURE ACT OF JANUARY 31, 1885-RESIDENCE.

JOHANNES v. HOBSON.

The preferred right of an actual settler to enter railroad lands embraced within the forfeiture act of January 31, 1885, is not defeated by the fact that he was not living on the land at the passage of said act, or that he had informally agreed to sell his improvements, in the event that the grant was not forfeited, it appearing that he had resided on said land for a period of ten years, and that his absence therefrom was occasioned by the illness of his wife.

Secretary Noble to the Commissioner of the General Land Office, April 21, 1891.

The case of Charles Johannes v. John W. Hobson is here on appeal of the former from your office decision of September 3, 1889, sustaining Hobson's homestead entry for the E. SW. and S. 1 NW. 1, Sec. 33, T. 5 N., R. 7 W., Oregon City, Oregon.

The tract was included in a grant by Congress to aid in the construc tion of a railroad and telegraph line from Portland to Astoria and McMinnville in the State of Oregon.

The act making the grant was approved May 4, 1870. November 21, 1873, Hobson received a certificate from the railroad company certify ing that he should have the first privilege of purchasing when the land was placed on the market by said company.

Under this guaranty he immediately went upon the land and com menced to improve it.

At that time the land was remote from a settlement, and accessible only by means of a trail through a thickly wooded country.

He, however, continued to improve it and in 1877, moved his family to the home which he had hewn out of the wilderness. He continued to reside there with his family until May, 1884, when he was compelled by reason of his wife's failing health to remove from the land to Centralia, W. T., where she could receive medical treatment, there being