Trepp v. The Northern Pacific Railroad Company, in order that I might give the case further examination upon the questions of law involved therein.

The decision of October 3, 1881, was simply an affirmance of the decision of your office following the precedent of the Department in the case of Serrano v. Southern Pacific Railroad Company, decided July 2, 1879 (6 C. L. O., v. 93), and under the circumstances the main questions of law involved did not receive the critical examination and careful consideration that they otherwise would; for to reverse the decision of your office involved the reversal of a rule adopted by my predecessor. Upon a careful re-examination of the case, however, I am convinced that the rule in the Serrano case was erroneous, and hence that it was an error to hold that the failure of Trepp to file his declaratory statement for the land in contest within the statutory period, and the intervention of the withdrawal for said Northern Pacific Railroad Company after the expiration of said period and before Trepp filed, worked a forfeiture of the latter's claim.

The material facts are that plat of township embracing tract in question was filed in local office at Helena, Mont., September 18, 1869; that Trepp settled as pre-emptor September 15, 1871; that he was a quali. fied settler; that he filed declaratory statement for said tract July 3, 1878, more than three months after settlement (Sec. 2265 Rev. Stat.); that he proved up his claim and entered the land August 10, 1878; that it is found, and, as I understand, it is not questioned, that Trepp performed all the requirements of the pre-emption law except as to filing in time, and that with this exception his claim is valid in all respects; that the tract is within the limits of a withdrawal made under authority of said act of 1864 (13 Stats., 365) for the benefit of said company, by letter of the Commissioner of the General Land Office, by direction of the Secretary, under date of April 22, 1872, received at local office May 6, 1872, upon map of general route filed with the Secretary and approved by him February 21, 1872; that this letter withdrew the odd sections within the forty-mile limits on each side of the line of general route; that the tract is within the forty-mile or granted limits as shown by said map of general route on file in the General Land Office, upon which the withdrawal was made, and that the road opposite the land has not been definitely located.

Of course it will be admitted that the title to laud within this with. drawal has not absolutely vested in the company beyond revocation by Congress wherever the line of the road has not been definitely located and constructed (see sections 3, 6, and 20, act of July 2, 1864, 13 Stats., 365), and it is not certain that the road will ever be definitely located or built over the line of the general route; but it is a fact that no change of route has been made, and that the withdrawal of 1872 remains intact and in full force; hence it must be assumed that the company claims all rights to which it is entitled by virtue of the filing of the map of

general route and the withdrawal in accordance therewith. The case should, therefore, be treated as if the company had a valid claim to such odd sections within the granted limits as are not excepted from the grant; in other words, that all rights intended by the act of 1864 to be secured to the company upon the filing of a map of general route, remain unimpaired.

The sixth section of the granting act of 1864 (13 Stats., 369) provides as follows:

That the President of the United States shall cause the land to be surveyed for forty miles in width on both sides of the entire line of said road, after the general route shall be fixed, . and the odd

sections of land hereby granted shall not be liable to sale, or entry, or pre-emption before or after they are surveyed, except by said company as provided in this act, but the provisions of the act of September, eighteen hundred and forty-one, granting pre-emption rights, and the acts amend atory thereof, shall be, and the same are hereby, extended to all other lands on the line of said road, when surveyed, excepting those hereby granted to said company.

I have underscored words above which seem to me to have significant bearing upon the question in the case.

The first observation upon this section is, that while it does not in terms direct the Secretary of the Interior to withdraw lands for the benefit of the company, the duty and authority to do so are clearly implied. The map of general route being filed, the lateral limits of the grant thereby appear. The odd sections granted by the act are not thereafter liable to sale, entry, or pre emption. There is no way, therefore, to prevent disposal or entries of the granted land except by giving notice of the limits of the grant and directing the local officers to make no disposi tion of the granted lands within those limits. It has been held by the Department that upon acceptance of map of general route by the Sec. retary, a withdrawal of the odd sections took place eo instanti, by force of the sixth section of the statute itself (1 C. L. L., 377); nevertheless, orders of withdrawal were deemed necessary to avoid confusion and to protect both settlers and the company, and there can be no question of the authority to make such withdrawal.

If, however, any question that executive authority existed to make the withdrawal of April 22, 1872, arises in the mind of any one, refer ence to section 2281 Rev. Stat., and to the decision of the supreme court in Wolcott v. Des Moines Co., 5 Wall., 681, will settle it affirmatively. This certainly puts the case on its firmest grounds in favor of the company, and in my opinion on the correct basis.

Now let us see whether the company has any just claim of right to Trepp's land, or whether Trepp's entry ought to be canceled by reason of anything in said act of 1864, or the recited proceedings thereunder, In the first place the legislative withdrawal which occurred upon the acceptance of the map of general route February 21, 1872, or the executive withdrawal of April 22, 1872, embraced and attached only to the

odd sections "granted" by act of 1864. The withdrawal was limited to such by the express language of the sixth section: "And the odd sections of land hereby granted shall not be liable to sale," etc., and the provisions of the pre-emption law "shall be and the same are hereby extended to all other lands on the line of said road, when surveyed, excepting those hereby granted to said company," is the language of the act. There was no legislative withdrawal and no authority for executive withdrawal, therefore, of other lands than those granted by the act. It follows that the right of pre-emption could not be denied to any "other lands on the line of said road, when surveyed." Now it is obvious that the withdrawal was to protect the company, and to preserve to it all lands to which its right might attach and vest upon definite location (1 C. L. L. No. 400, page 377). What those lands are, the third section of the act specifies. They are "every alternate section of public land, not mineral, designated by odd numbers, to the amount of twenty alternate sections per mile, on each side of said railroad line, as said company may adopt through the Territories of the United States whenever on the line thereof the United States have full title, not reserved, sold, granted, or otherwise appropriated, and free from preemption or other claims or rights at the time the line of said road is definitely fixed, and a plat thereof filed in the office of the Commissioner of the General Land Office."

Clearly, the object of Congress, as expressed in the act, was to withdraw the lands intended to be granted upon the filing of the map of general route, so that they should maintain their existing status from the time of withdrawal to the time of filing map of definite location. Hence the condition of the land at date of withdrawal will determine whether it was granted or intended to be granted or not, and the withdrawal would attach to such lands only as maintaining the same status to time. of definite location would pass to the company under the grant. Now, if there was a pre-emption claim (not since abandoned) attaching to the land in question at the date of the withdrawal, it excluded the land from the withdrawal and from the grant as effectually as if the map of definite location had been filed and accepted at the same time as and instead of the map of general route.

Trepp's was such a claim, unless his failure to file in time defeated it. That such failure on uuoffered land does not defeat nor forfeit a preemption claim, except in case wherein another settler on the same tract has filed and otherwise complied with the conditions of the law, seems to me to be firmly settled by the supreme court and this Department, as it is possible to settle anything, as will presently be shown. But if it were an original proposition such would necessarily be the conclusion. Section 2265 Rev. Stat. provides that every claimant under the preemption law for unoffered land shall make known his claim in writing to the register of the proper land office within three mon ths from settlement, etc., "otherwise his claim shall be forfeited and the tract

awarded to the next settler, in the order of time, on the same tract of land, who has given such notice and otherwise complied with the conditions of the law." Section 2282 Rev. Stat. provides that nothing contained in the chapter relative to pre-emptions shall delay the sale of any of the public lands beyond the time appointed by the proclamation of the President.

Now, when it is considered that unoffered land cannot be entered at private entry or sale, and that settlement without filing within the time mentioned in section 2265 will not debar another settler from appropriating the land, nor the government from selling it at public sale, there can be no possible reason for forfeiting a pre-emption claim because of failure to file in time, nor for giving to section 2265 any other construction or meaning than its language clearly imports-that is, that the claim of a pre emptor who "fails to file the notice of his claim in time shall be forfeited, and the tract awarded to the next settler," etc. By limitation of the language itself the forfeiture and award is to the "next settler."

It is a well-known principle that the law does not favor forfeitures. To give any other construction to section 2265 than its language imports, would be in open violation of this wise rule and principle of law.

It might be urged that this limita tion would restrict the forfeiture and award to a pre-emption settler; but such does not appear to be the law. For, in the first place, the section does not so express it; and, in the next place, section 2289 Rev. Stat., relative to homesteads, makes all lands that are subject to pre-emption subject to homestead entry. But whether the law limits the forfeiture to pre-emption settlers or not is of no consequence in determining this case. If the law is, that in case of failure to file declaratory statement in time the claim is forfeitable, and the tract subject to award only to a pre-emptor, let it be so adminis tered. The executive duty is to execute the law. The responsibility for the law is with the law-making power.

Again section 2281 Rev. Stat. provides that

All settlers on public lands which have been or may be withdrawn from market in consequence of proposed railroads, and who had settled thereon prior to such withdrawal, shall be entitled to pre-emption at the ordinary minimum to the lands settled on and cultivated by them; but they shall file the proper notices of their claims, and make proof and payment as in other cases.

This section was taken from the act of 27th March, 1854 (10 Stats., 269), as amended by the second section of the act of July 14, 1870 (16) Stats., 279). All I desire to remark upon the acts of 1854 and 1870 is that they were in force at the time of the grant to the company and when the land was withdrawn; that Trepp is undoubtedly entitled to their provisions as well as to the provisions of section 2281 Rev. Stat., and that all that that section requires is that the settler shall file and make proof and payment as in other cases.

It follows, therefore, that if a failure to file or make proof and payment in time works no forfeiture of a claim in the absence of another subsequent settler on the same tract in other cases, it cannot under the act of 1854, as amended, and section 2281, which were unquestionably enacted for the protection of settler's claims, and not for their destruction. But this question was clearly and positively settled by the su preme court in the case of Johnson v. Towsley (13 Wall., 72). That case has been so often referred to, quoted from, and applied in decisions of this Department, that it would seem supererogation to do more than refer to it; but I feel constrained to call attention to certain facts therein.

Towsley settled June 15, 1858, and filed declaratory statement February 4, 1859. Johnson filed declaratory statement October 5, 1860, for same land. On September 20, 1862, the local officers allowed Towsley's entry, and issued patent certificate. Finally, upon appeal to the Secretary of the Interior, a decision was rendered July 11, 1863, in favor of Johnson. Afterwards Johnson entered the land and received a patent therefor. Upon these facts the court upheld Towsley's title, and decreed that Johnson, who was held to be the trustee of Towsley, should convey the title, which passed by patent to Towsley. I need not refer specially to the opinion of the court upon the question of the failure of Towsley to file in time. They held that it did not defeat his claim, because no other person, settler on the same tract, had given the notice, etc., before Towsley filed. But I desire to draw attention specially to the fact that the court held that Towsley's claim was a valid pre-emption claim, notwithstanding his failure to file in time, which point was fully considered; and being a valid claim, which means that Towsley had made compliance with the law as the court construed it, the court decreed the title in him.

Now, let me ask, what is it that is excepted from the grant of the Northern Pacific Railroad Company? What is carved out of the grant by express language? What condition is land in which cannot pass under the grant? What, by every intendment of the act, should not pass by the grant?

The answer comes from the very language of the third section of the act itself. Land, odd sections, to which a pre-emption claim attaches when the same is withdrawn for the benefit of the road, or at definite location, as above shown, cannot pass under the grant if the claim is not abandoned. The land, in other words, must be "free from pre-emp. tion or other claims or rights." According to Johnson v. Towsley, Trepp had a pre-emption claim at the time of withdrawal.

It is not a question whether or not the company is an adverse claimant, and whether the intervention of its claim works a defeat or for. feiture of Trepp's pre-emption, as in the case of the subsequent settler who has given notice, etc. The real question is whether the claim of Trepp does not bring the tract within the exception to the grant; and 20309-VOL 1——25