He died July 25, 1873. On October 12, 1875, his widow, Nancy H., applied to make final proof, said proof showing settlement September 28, 1868. Affidavits accompanying it set forth that Plouch bought the improvements and possessory right of one Stubblefield, who had occupied it for one year, and who had bought from Fly, the original homestead claimant. This can only be introduced for the purpose of showing that Plouch had some legal or equitable right anterior to his homestead entry. Assuming the facts to be established as stated, I do not see that it can help Plouch's claim, for it is so well settled as to be beyond question, that a homestead entry takes effect only from its date, and can have no retroactive effect. It is well settled "that a homestead claim, to exclude land from a railroad grant, must be subsisting, and capable of being perfected at the time the road was definitely located." (See Missouri, Kausas and Texas Railroad Company vs. Block, Copp's Land Laws, 395; Sayers vs. Atchison, Topeka and Santa Fé Railroad Company, Ib., 397; circular, August 15, 1872, Ib., 389.) In this case the claim of Fly had been abandoned nearly two years, and was not capable of being perfected. It therefore did not operate to protect the land it covered from the grant, and the same duly attached at date of definite location, to wit, June 27, 1868. I think, therefore, the entry must be canceled, unless saved by the act of April 21 last, "To confirm pre-emption and homestead entries of public lands within the limits of railroad grants," &c. The first section of said act provides, "That all pre-emption and homestead entries * * * of the public lands made in good faith by actual settlers upon tracts of land of not more than one hundred and sixty acres each within the limits of any land grant prior to the time when notice of withdrawal of the lands embraced in such grants are received at the local office, * ** and where the pre-emption and homestead laws have been complied with they shall be confirmed, and patents for the same shall issue to the parties entitled thereto." Plouch's entry is clearly within this section and entitled to confirmation, provided lands within the limits of the grant, after definite location of the line of route, and prior to withdrawal, may be considered public lands within the meaning of the statute. Being somewhat in doubt as to the proper construction of this phrase as it occurs in the first section of said act as quoted, I, on the 29th ultimo, referred it, with a statement of this case, to the honorable Attorney General for his opinion. I am in receipt of his opinion, dated 4th instant, wherein he holds, after reciting the facts in the case and the material portion of the section, as follows: "In this connection you ask whether the section above quoted is applicable to the case of Plouch, and, more specifically, whether lands situated as those granted to the railroad company after its map of survey had been filed and before notice of their withdrawal, can be termed public lands within the meaning of such section. "The question is not whether lands in that situation are in general public lands, but whether from the context and other means of interpreting the above statute, it appears that Congress there intended by the phrase 'public lands' to designate lands so situated. "I think it plain that Congress in the above act used that phrase in a special sense, virtually being lands within the limits of any land grant prior to the time when notice of withdrawal is received at the local land office, &c., and therefore I conclude that the case of Plouch is included therein." I adopt this opinion as the true construction of the law and the proper decision of this case. You will therefore permit the entry to stand and proceed to completion in conformity to law. I reverse your decision, and return the papers in the case transmitted with your letter of May 19 last. Very respectfully, The COMMISSIONER OF THE GENERAL LAND OFFICE. Z. CHANDLER, Secretary. Where a party fails to appeal from the action of the local officers, the award becomes final as to his right, and is not subject to review by this office. DEPARTMENT OF THE INTERIOR, SIR: I have considered the appeal of the California and Oregon Railroad Company from your decision of September 17, 1875, in the case of George W. Eaton vs. California and Oregon Railroad Company, involving the right to north half of southeast quarter, northeast quarter of southwest quarter, and lots 14 and 15, section 35, township 22 north, range 1 east, Marysville, Cal. The land in question is within the withdrawal limits of the California and Oregon Railroad, the right of which company attached September 13, 1867. Township plat was filed June 24, 1867, suspended same day, and released from suspension September 14, 1868. David W. Haines filed declaratory statement 5443 November 12, 1868, alleging settlement of the land in question December 26, 1865. His claim was canceled by you March 24, 1874. At some time prior to July 16, 1875, but on what day the record does not disclose, Eaton, who had succeeded Haines in the possession of the land, applied to file declaratory statement for it, and at the last named date a notice of said application was issued to the railroad company returnable on the 2d September following. Both parties appeared and proof was taken, the point at issue being whether Haines's settlement and filing operated to except the land from the grant to the railroad company. Upon consideration of the proof, the register and receiver held that it did not, and "decided that George W. Eaton is not entitled to file his declaratory statement for the tract claimed, and that the land in question inures to the California and Oregon Railroad Company." This decision was made December 30, 1874, and notice served on Eaton on the following day. He took no appeal from this decision. The papers were forwarded to your office and the case was there reviewed; the decision of the register and receiver was reversed, and the declaratory statement of Eaton was ordered to be received by them. In this I think there was manifest error. The decision of the register and receiver rejecting Eaton's application, not having been appealed from, was final as to him, and was not subject to review by you. (Brown vs. White, Copp's Land Laws, p. 298; Shuster vs. Grady, Ib., 314.) It does not follow, however, that the railroad company is entitled to the land. While the proof as to Haines's qualifications as a pre-emptor is not as full as could be desired, enough appears to raise a very strong presumption that he was qualified, and that his occupation of and claim to the land was sufficient to except it from the grant. Upon the evidence in the case, it would undoubtedly be your duty to refuse to certify and patent the land to the company. But it appears that on the 7th March, 1875, while this contest was pending in your office, a patent was issued for the land in question to the railroad company. By this act of gross carelessness the burden of proof is cast upon the Government to show that the lands did not pass by the grant to the company, and a further investigation is made necessary. I have, therefore, to reverse your decision, allowing Eaton to file his declaratory statement for the land, and to direct that further proof be taken by the register and receiver as to the qualifications of Haines as a pre-emptor at the time he occupied the land. If, on such proof, his qualification shall appear, you will renew your demand on the company for a release of the land and return of the patent, and, in case it shall refuse to comply therewith, you will report the fact to me, in order that legal proceedings may be instituted to set the patent aside. The papers transmitted with your letter, F, of December 30, 1875, are herewith returned. SIR: I have considered the application of Messrs. Britton and Gray for a reconsideration of the decision of my predecessor, dated July 20, 1876, in the case of George W. Eaton vs. The California and Oregon Railroad Company. In support of the application a number of affidavits have been filed, in which it is alleged that Eaton has resided upon the land since the year 1868. In the decision of my predecessor, the claim of Eaton was rejected on the ground that he had not appealed from the decision of the local officers rejecting his claim. A new hearing was ordered, however, for the purpose of ascertaining the validity of the claim of the railroad company to the tract, the right of the company depending upon the validity of the prior pre-emption claim of David W. Haines. This hearing should proceed, and the status of the land be determined upon the evidence submitted. Eaton, by his failure to appeal from the decision of the local officers, lost any right hə may have acquired by settlement, as against the claim of an adverse settler who settled and complied with the provisions of the law subsequent to December 30, 1874, the date of the decision of the local officers, and prior to September 17, 1875, the date of the decision of your office allowing him to file, from which time it should be con sidered that he was restored to his position as an applicant and a party in interest before your office, whose claim is not finally adjudicated. If it should be ascertained that the question is one between himself and the Government, his claim should be determined upon its merits; and to that end, evidence on the question of his residence on the tract and compliance with the law from date of alleged settlement should be admitted. All claimants of record should be made parties to the hearing. The papers in the case are here with returned. Very respectfully, The COMMISSIONER OF THE GENERAL LAND OFFICE. A. BELL, Acting Secretary. Where an entry is confirmed under the act of April 21, 1876, the railroad company will be permitted to relinquish the tract embraced in such confirmed claim, and select indemnity therefor under the act of June 22, 1874. DEPARTMENT OF THE INTERIOR, GENERAL LAND OFFICE, Washington, D. C., September 16, 1876. SIR: I have the honor to submit here with letter from John B. Bloss, esq., dated 11th instant, asking whether the Sioux City and Saint Paul Railroad Company is entitled to select, under the provisions of the act of June 22, 1874, land in lieu of the west half of the northeast quarter and northwest quarter of the southeast quarter of section 5, township 88 north, range 44 west, Sioux City district, Iowa, lost to the grant by reason of the confirmation of homestead entry No. 605, final certificate No. 829, of Jacob Weaver, under the act of April 21 last, by your decision of 17th ultimo. It is well known that under the rulings of the Department, based, it is believed, upou well-settled decisions of the Supreme Court, the right of said company attached upon the definite location of its line of route, and that from that time title vested in the specific lands embraced within the lateral limits fixed by such definite location. The entry was confirmed under the provisions of the act of 1876, but such confirmation could not take away nor divest the rights of the company. Where an entry comes clearly within the provisions of the confirmatory statute, patent must issue to the individual. The right of the company to relinquish under the act of 1874 is not, however, by such confirmation restricted or removed. It was. the manifest intent of the act of 1876 (as appears from a perusal of the debates in Congress thereon) to confirm the entries as a basis for patents to issue, so as to give the claimants a proper standing before the courts to test the question of title, and it is clearly evident to me that it could do nothing more. It certainly could not operate to divest rights long since acquired under previous laws. By the recent decision of the Supreme Court in Leavenworth, Lawrence and Galveston Railroad Company vs. United States, known as the Osage decision-not yet reported-it was declared that, from the date of the attachment of the right of the company by definite location, pre-emption and other rights ceased, and could not thereafter be initiated. I therefore conclude that the company is still entitled to the benefits of the provis ions of the act of 1874. In view, however, of the importance of the question, I submit the matter for the consideration of the supervisory authority, and have to request your instructions in the matter before communicating to the parties interested my decision in the case. Very respectfully, your obedient servant, Hon. Z. CHANDLER, Secretary of the Interior. U. J. BAXTER, DEPARTMENT OF THE INTERIOR, SIR: I have to acknowledge the receipt of your communication of the 16th ultimo, inclosing a letter from John B. Bloss, esq., attorney of the Sioux City and Saint Paul Railroad Company, which submits the question whether in the case of Jacob Weaver vs. Sioux City and Saint Paul Railroad Company the company will not be entitled to indemnity under the act of June 22, 1874. You express the opinion that in this case the company is entitled to the benefit of the provisions of the act above mentioned. I concur in your opinion. In the case above mentioned and similar cases the com pany, on relinquishment of its title to the settler, will be entitled to select lieu lands under the act above cited. The letter of Mr. Bloss is herewith returned. The COMMISSIONER OF THE GENERAL LAND OFFICE. CHAS. T. GORHAM, Acting Secretary. An entry, to be confirmed under the language in the first section of the act of April 21, 1876, "after their restoration to market by order of the General Land Office," must come clearly within its provisions. The land must have been actually restored. DEPARTMENT OF THE INTERIOR, Washington, D. C., October 24, 1876. SIR: I have considered the case of the Cedar Rapids and Missouri River Railroad Company vs. James Shelmerdine, involving the right to the east half of the northwest quarter and southwest quarter of the northeast quarter, section 22, township 88, range 37, Sioux City, Iowa, on appeal from your decision of February 14, 1876, holding for cancellation the latter's homestead entry on said tract. Shelmerdine made homestead entry March 3, 1869; made final proof and received final certificate January 19, 1875. The grounds of appeal, with the exception of the one that the entry has been confirmed by an act of Congress, have been frequently decided by this Department, and a further consideration of them is not deemed necessary; but the important question remains, is the entry confirmed by the act of Congress approved April 21, 1876? The claimant alleges that the tract in question was included in the clear list of lands ordered by express instructions of the General Land Office to be sold at public sale October 29, 1866. These lands were ordered to be restored to market October 29, 1866, by notice dated July 5, 1866. By letter dated September 21, 1866, the order was suspended for one year from July 5, 1866, unless otherwise ordered, and the lands were held subject to homestead and pre-emption settlement only. By letter from your office dated August 5, 1867, the register and receiver were ordered to restore the lands after thirty days' public notice, and the lands were actually restored to market September 23, 1867. Without discussing the legal right or power to restore these lands, it must be held that they were restored to market so far as an express order of the General Land Office could effect that purpose. Public notice to that effect was given, and parties making entries in good faith, in accordance with that notice, have an equitable right to claimi the protection of the Government, so far as the same can be extended. The first section of the act approved April 21, 1876, provides that homestead and pre-emption entries made in good faith by actual settlers upon lands after "their restoration to market by order of the General Land Office," and when the laws have been complied with and proper proof made, shall be confirmed. It is plain, I think, that the intention of Congress was clearly expressed by the language used. Entries made in good faith on lands after their restoration to market by order of the General Land Office are confirmed, and patents are ordered to issue to said claimants. It is contended by counsel for the railroad company that the tract in question inured to the grant for said company June 2, 1864; that it was no longer public land, and could not be affected by the first section of the act of April 21, 1876. Upon this point I am governed by the opinion of the Attorney General of the United States, of August 4, 1876, as follows: "I think it plain that Congress in the above act used that phrase (public lands) in a special sense, virtually defined in the context as being lands within the limits of any land grant prior to the time when notice of their withdrawal is received at the local land office," &c. It is the duty of the Department to execute the plain provisions of the law and not question what the effect will be. Was the tract claimed by Shelmerdine restored to market by order of the General Land Office? His attorney alleges that it was in the list of lands ordered to be sold September 23, 1867. Upon examination of the list of vacant lands referred to, prepared by your office, I fail to find the tract in question. The tract book of your office shows that a military bounty land warrant was located on said land May 24, 1856. This entry was, however, erroneous, as the tract located was in township 87. The error was detected and corrected, but at what date I am unable to state. The fact of this erroneous entry no doubt accounts for the non-appearance of the tract in the list prepared by your office in the spring of 1866, but it must be treated as land not restored to market. The record further shows that the land was entered as a homestead July 20, 1867. This entry was canceled January 30, 1869; hence it could not be treated as vacant land subject to restoration September 23, 1867. The tract was vacant June 2, 1864, and by the terms of the granting act inured to the grant for the benefit of the railroad company at that date; and the homestead entry, not being confirmed by the act of April 21, 1876, must fail. Your decision is affirmed; and the papers transmitted with your letter of August 24, 1876, are here with returned. Very respectfully, The COMMISSIONER OF THE GENERAL LAND OFFICE. CHAS. T. GORHAM, Acting Secretary. A legal homestead entry of record segregates the land from the mass of public lands, and excepts the tract covered thereby from the operation of a railroad grant attaching during the existence of such entry. DEPARTMENT OF THE INTERIOR, Washington, D. C., February 7, 1877. SIR: I have considered the case of Chalkley Thomas vs. The Saint Joseph and Denver City Railroad Company, involving the right to the northwest quarter of section 5, township 2 north, range 2 east, Beatrice, Nebr., on appeal from your decision of April 27, 1876, holding for cancellation the homestead entry of the former. This tract is within the limits of the grant for the above named railroad company, made by act of Congress approved July 23, 1866. Said road was definitely located March 21, received at the local office April 15, 1870. 1871, and made final proof January 20, 1874. the tract November 11, 1868. 1870, and the notice of withdrawal was Thomas made homestead entry July 26, Thomas Keyes made homestead entry for At a trial held January 25, 1870, on the charge of abandonment, it was shown that Keyes never resided upon the land nor improved the same, and said entry was canceled for abandonment May 20, 1870. From this statement it will be seen that at the date of the definite location of the road the tract in question was covered by a homestead entry, subsequently canceled for abandonment, and the questions arise, Did said entry defeat the claim of the railroad company, and does a homestead entry operate as a reservation of the land covered from all other appropriation? If a homestead entry is a legal appropriation of the land, it is a well established principle of law that from the moment of such entry the land becomes severed from the mass of public lands, and no subsequent law, proclamation, nor sale would be construed to embrace or operate upon it, although no other reservation were made of it. (13 Peters, 498; 2 Otto, 733.) The preference right to purchase, the only right initiated under the pre-emption law by settlement, is not, prior to payment and entry, such a legal appropriation of the land as above indicated. (15 Wall., 77.) This doctrine was reaffirmed in the case of Shepley et al. vs. Cowan et al., (1 Otto, 330,) in which the court says "that the settlement, even when accompanied with au improvement of the property, did not confer upon the settler any right in the land as against the United States, or impair in any respect the power of Congress to dispose of the land in any way it might deem proper; that the power of regulation and disposition conferred upon Congress by the Constitution only ceased when all the preliminary acts prescribed by law for the acquisition of the title, including the payment of the price of the land, had been performed by the settler. When these prerequisites were complied with, the settler for the first time acquired a vested interest in the premises, of which he could not be subsequently deprived. He was then entitled to a certificate of entry from the local land officers, and ultimately to a patent of the United States. Until such payment and entry, the acts of Congress gave to the settler only a privilege of pre-emption in case the lands were offered for sale in the usual manner; that is, the privilege to purchase them in that event in preference to others." Where the entry is made a vested right is acquired, a right which may be transferred. (Myers vs. Croft, 13 Wall., 291.) These decisions clearly establish the character of an entry, which is defined to be that act by which an individual acquires an inceptive right to a portion of the unappropriated soil of the country by filing his claim thereto with the proper land officer of the United States. (12 Wheaton, 586.) The act providing for the disposal of the public lands, known as the "homestead law," differs essentially in its principles from the pre-emption law. Under the latter statute an entry is not permitted until payment is made. Section 2289 of the Revised Statutes, however, provides that "every person who is the head of a family, or who has arrived at the age of twenty-one years and is a citizen of the United States, or who has filed his declaration of intention to become such, as required by the naturalization laws, shall be entitled to enter one-quarter section or a less quantity of unap |