Hodge did not settle on or claim the tract in contest, but settled and resided on and improved the other tract until date of his final proof in 1874; and, as he was still in ignorance of the correct description of his homestead, his final proof and entry designated the tract in contest, and patent therefor issued to him on July 1, 1875. Thereafter Hodge continued to reside on and claim the tract upon which he originally settled until January 28, 1884, when he quit-claimed to the United States all his right, title and interest in the land patented, and shortly afterwards filed his patent in your office, accompanied by a petition requesting its cancellation, and that he might be permitted to purchase said patented land under the act of June 15, 1880. This petition your predecessor granted on March 17, 1884, and Hodge made cash entry for said land on the 28th of the same month.

On May 15, 1884, the local officers transmitted to your office the application of John D. Leitner to have Hodge's patent canceled and his (Leitner's) right as a pre-emption settler on the land recognized. The date on which this application was filed does not appear, but it was executed March 12, 1884. Leitner alleged in it that he had been in possession of the land, and that it was improved to the value of $2500, either by him or those from whom he bought the possessory right. On June 22, 1884, your predecessor ordered a hearing to ascertain the truth of Leitner's allegations, meanwhile suspending Hodge's cash entry. Said action was taken because, as the decision states, Hodge's cash entry was allowed in ignorance of Leitner's settlement and improvements, and because Hodge could have had adequate relief by amendment. Hearing was duly had, and Leitner substantially established his allegations and showed that Hodge had never had any possession of or claim to the land in controversy. Whereupon your office made the decision appealed from, awarding the land to Hodge.

I cannot agree with said decision. In my judgment the act of June 15, 1880, does not apply to such a case as Hodge's. It was designed to remedy a defective title under an entry, and thus to grant the homesteader relief. But here there was no need of such a relief. Hodge's covering the land in controversy by an entry was caused by a mere mistake of description; it was a simple clerical error, which he himself, or any one desiring to settle thereon, might have had corrected. Indeed, in neither law nor equity did he ever make an entry of the land in controversy, for he never intended to enter it. His entry was legally of the land which he actually settled on, and he was not within the purview of the act of June 15, 1880, because he required no relief under it. Said act manifestly contemplates the purchase of the tract which the settler had intended to acquire by the entry, and not of a tract which he never did intend to acquire. Much less does it contemplate the right of a settler on one tract of land to seize the possession and improvements of a settler on another, by taking advantage of a cler

ical error. The act was intended to grant a relief, and not to license a robbery.

I concur in the view of your predecessor, above referred to, that when Hodge surrendered his patent for cancellation he was entitled to a patent for the land upon which he had actually settled and where he had resided for ten or more years. The homestead entry of one Schoeflin, which it appears was then of record, and which Hodge erroneously thought was a bar to amendment by him, was in fact no bar, for his equitable right to the land was protected by his patent. Said entry has since been canceled, I believe; but, if not, it should be canceled. No other person could or can acquire title to said land against him, for it had been fully earned by his residence and cultivation, and the government now holds the legal title solely for his benefit. You will please direct that a new patent issue to Hodge for the SW. 4 of SE. and the SE. of SW. of said section, cancel his cash entry erroneously made under the act of June 15, 1880, and allow Leitner to make pre emption claim to the land in controversy. Your said decision is reversed.

RAILROAD GRANT-DEFINITE LOCATION.

FLORIDA RY. AND NAVIGATION CO.

The map showing the definite location of the road between Waldo and Tampa Bay was filed in 1860, but returned by the General Land Office for the Governor's certificate and when refiled the time allowed for the completion of the road had expired, but it appearing that the map so refiled was identical with the original map, which properly showed the location of the road, Secretary Schurz held that the right of the road was protected under the original map, and such decision is binding upon succeeding heads of the Department.

The final adjustment of the grant however will be deferred for the disposition of pending Congressional action with reference thereto.

Secretary Lamar to Commissioner Sparks, August 30, 1886.

On December 3, 1885, Hon. Wilkinson Call addressed a communication to the Department, requesting that the subject of the reservation of lands granted to the State of Florida, under the act of May 17, 1876, for the construction of a road from Amelia Island to Tampa Bay and Cedar Keys, be reconsidered.

This letter was referred to your office for report thereon, which you have submitted, concurring in the request of Senator Call, and recommend that the withdrawal of lands for the benefit of said road, ordered by the decision of Secretary Schurz of January 28, 1881, be revoked. The Florida Railway and Navigation Company now appear and resist the granting of said motion, and ask the Department to proceed with the execution of said decision.

The act of May 17, 1856, granted to the State of Florida, for the purpose of constructing the road aforesaid, six sections per mile on each side of said road, prescribing the manner in which the State might dispose of said lands, and providing that if said road or branch is not completed within ten years, no further sales shall be made and the lands unsold shall revert to the United States. The benefit of this grant was conferred by the State of Florida upon the Florida Railway Company, whose rights and interest thereunder have been assigned and transferred through its successors to the Florida Railway and Navigation Company. The road was completed from Fernandino via Waldo to Cedar Keys in 1860, and lands inuring for that portion of the road were certified to the State in 1858 and 1860, a map of definite location for such portion having been filed and accepted as the basis of the adjustment of the grant.

A map of the remaining portion of the main line between Waldo and Tampa Bay (which is the portion now in controversy) was filed in your office December 14, 1860, by M. L. Smith, chief engineer of the Florida Railroad Company, but not having the certificate of the governor under the seal of the State, it was returned to him to have that omission supplied. Nine years after the expiration of the time for the completion of the road, to wit, December 7, 1875, the president of the road presented a map of definite location of the road from Waldo to Tampa Bay for file in the Land Office, and asked that the lands be listed to the road covered thereby. This map was shown to be identical with the map filed in 1860, and the Commissioner of the General Land Office recommended that it be accepted as a map of definite location, and that lands be withdrawn in accordance therewith for the purposes of the grant.

Secretary Chandler declined to receive or approve this map, holding that the act definitely locating the road should be done within the time fixed for the completion of the road, and that a failure to discharge this duty should be taken as conclusive evidence of the abandonment of the grant. This map was therefore returned to the president of the road, with the information that the Department could not permit the company, after so great a delay, to file a map designating the route of its road. Subsequently, to wit, October, 1879, the company again presented this map to your office, with accompanying exhibits, showing that a map of definite location of the line between Waldo and Tampa had been filed in the General Land Office December 14, 1860, and that the map then filed is identically and exactly the line delineated upon said map filed December 14, 1860. Accompanying this was also an application for a review of the subject, alleging that the decision of Secretary Chandler rested upon a mistaken understanding of the facts, to wit: that no map of definite location had been filed within the time required for a completion of the road, and asking leave to place the matter before the Department, with a view of displaying the facts as they actually exist.

This application was addressed to the Commissioner of the General Land Office, from which it appears that he considered it not so much in the nature of a review of Secretary Chandler's decision, as of an original application for the enforcement of their rights under the grant in view their then existing status which they proposed to show. The Commissioner therefore, in passing upon the question, said:

"After full and careful examination of the files and records of this office, and the proofs presented, I find no room for doubt that the line of route of the road in question was actually surveyed, and a map of such survey intended as evidence of the definite location of the line, filed in the General Land Office on December 14, 1860; and that it was prepared and presented in good faith. If said map was properly executed-sufficient in itself, needing no certificate by the governor-the action of this office in returning it to Captain Smith, resulting in its loss, should not be made to work a forfeiture of the company's right, it being admitted that the grant has not been forfeited by failure in other respects."

But in view of the decision of Secretary Chandler, holding that the act of definitely locating the road must be done in all cases before the expiration of the time fixed for completing the road, and as the entire question was apparently presented for a review or reconsideration of the former action of the Department, he declined to express an opinion as to the sufficiency of the map as originally filed, or of the reproduced copy of the same as then presented, and submitted the matter to the Secretary without recommendation.

Secretary Schurz, on January 28, 1881, considering this application as a motion for review of his predecessor's decision, entertained jurisdiction of the question, upon the ground that material facts that show the authority of the company to locate its line and file the map were not before his predecessor, and held that the approval or certificate of the governor was not essential to the validity of the survey; that the map fixing the definice location of the road in 1860 was filed in the General Land Office, which exactly corresponded with the duplicate now filed, and there remains now no doubt that the line exhibited was then surveyed and marked as the definite location of the road, and as such recognized by the company and State authorities. In accordance therewith he directed a withdrawal of the lands to protect the rights of the company and to secure a proper adjustment of the grant upon the line desiguated.

I am now asked to review this decision and to revoke the order of withdrawal made thereby, applicants urging in support of said motion that if Secretary Schurz had the authority to review the decision of Secretary Chandler, his decision may with equal authority be reviewed and revoked by any succeeding Secretary. In view of the facts of this case, I am unable to see the force of this argument. The question before Secretary Chandler, and which he alone decided, was, whether a map of definite location can be filed after the expiration of the time allowed for completing the road. It is clearly shown by the record of the

case then made. that the Secretary did not contemplate that any map of definite location had theretofore been filed, but that the map presented was an original filing, because, referring to this part of the road,

he says:

"No map showing the definite location of the road to Tampa Bay has ever been filed in the Department," and "The company now offers to file a map definitely fixing that portion of the road last mentioned," etc. The question decided by Secretary Schurz was, whether a duplicate map of definite location of that part of the road may be received and filed after the expiration of the time allowed for the completion of the road, and a withdrawal made thereunder upon proof that the duplicate presented is a correct copy of the original which was filed in time, and that the original has been lost or destroyed.

If, in fact, a map of definite location had been filed in time, the title of the grantee by virtue of that act was completed by attaching it to specific lands, and the decision of Secretary Chandler, that a map of definite location could not be filed after the expiration of the time required for completion of the road could not affect such right, unless in such decision he had directly passed upon the sufficiency of the original filing. That he did not pass upon the question of the sufficiency of any map prior to the expiration of the time, and that no such question was before him, but on the contrary that he considered that the company was for the first time offering to file its map is evident.

Therefore whether we consider the question presented to Secretary Schurz in the light of an original application under a different claim of right, or as a motion for review upon the ground of newly discovered evidence, in either case Secretary Schurz, under the facts presented, had a right to entertain jurisdiction of the subject. This decision was concurred in by Secretary Teller by his action of January 30, 1884,* in directing the certification of the lists for his approval, holding, upon the authority of the decision of Secretary Schurz, that the map of 1860 was valid and sufficient to fix and locate definitely the line of the road. I am therefore of the opinion that the decision of Secretary Schurz upon that issue is binding upon his successors, and should not be disturbed.

But another question is presented for my consideration in this case, to wit: that the forfeiture of this grant is now pending before Congress, a committee of the House having made a report in favor of such forfeiture. It is urged by the counsel for the road that the Senate having failed to act upon the matter and the House having failed to take any action upon the report of the Committee, that the duty of the Department is to proceed to enforce and execute the rights of the grantees under the law.

It is also represented to me by the governor of the State of Florida that the citizens of that State are greatly interested in the completion

*Atlantic, Gulf and West India Transit R. R. Co., 2 L. D., 561.