through Chattooga, Wills, and Lookout Valleys'.

subject to all

the conditions and restrictions contained in the act referred to." Prior to 1868 the lines of road located in accordance with the routes indicated in the granting and reviving acts were owned by the Northeast & Southwestern Railroad Company and the Wills Valley Railroad Company, respectively, but in 1868 the two roads were united under the ownership of the Alabama and Chattanooga Railroad Company. In locating the Wills Valley road it was run from Gadsden, through northeastern Alabama, to the State line,,at a point about twenty-eight miles south of the north line of Alabama, where it crossed into Georgia; passing thence northerly into Tennessee it formed a junction with the Nashville and Chattanooga Railroad, near the city of Chattanooga.

It is claimed by the applicant herein that "the act of Congress clearly embraces that part of this railroad which is in Georgia, and which is also within six miles of unappropriated and unsold public lands which are in Alabama." In support of this proposition attention is called to the topography of the country through which the road (necessarily, under the requirements of the grant) was constructed, with the view of showing that it was impossible to construct said line so as "to connect with" the Tennessee roads without locating a considerable part thereof within the State of Georgia. It is also urged that, as that part of the road which was built in Georgia is as much a part of the road described in the act of Congress as that built in Alabarna, its location would take the public lands in Alabama falling within the six-mile limits thereof. Considerable stress is also laid upon the fact that the granting act does not definitely name the northeastern terminus of the Wills Valley road, it being argued that as said act made a grant to aid in the construction of a road "to connect with" roads outside of Alabama, it therefore contemplated as the northeastern terminus such point of connection, and consequently made the grant broad enough to cover the lands now claimed.

If the company is entitled to receive these lands, it must be on account of their falling clearly within the terms of the graut. Under public grants nothing passes by implication. In the clear and explicit language of the statute must be found all that is conveyed by the grant, and where doubt arises the statute must be construed most strictly against the grantee, the courts holding that nothing is given, in such cases, except that which is clearly given; Charles River Bridge v. Warren Bridge (11 Pet., 420); Dubuque & Pacific R. R. Co. v. Litchfield. (23 How., 66); Rice v. R. R. Co. (1 Black, 360). The grant was to the State of Alabama, "to aid," as the title of the act expressed it, "in the construction of certain railroads in said State;" and the first section of the granting act provided "that the lands hereby granted for and on account of said roads, severally, shall be exclusively applied in the construction of that road for and on account of which such lands are hereby granted, and shall be disposed of only as the work progresses, and the

same shall be applied to no other purpose whatsoever." The manner in which the granted lands were to be disposed of was specifically set forth in the fourth section of the act as follows: "The lands hereby granted to said State, shall be disposed of by said State only in manner following, that is to say, that a quantity of lands, not exceeding one hundred and twenty sections for each of said roads, and included within a continuous length of twenty miles of each of said roads, may be sold; and when the governor of said State shall certify to the Secretary of the Interior that any twenty continuous miles of any of said roads is completed, then another quantity of land hereby granted, not to exceed one hundred and twenty sections for each of said roads having twenty continuous miles completed, as aforesaid, and included within a continuous length of twenty miles of each of said roads, may be sold; and so from time to time until said roads are completed."

Here then is a grant to a State for the purpose of furthering certain internal improvements therein, and, aside from the express limitation found in the title of the act, it is only reasonable to assume that Congress intended the grant to be commensurate with the work done in the State. In keeping with this conclusion is the provision of the act making the disposition of the lands dependent upon the progress of the work, and the certificate of the governor to the effect that such progress has been made. To hold otherwise would, under the act, make it necessary for the governor of Alabama to certify to the completion of that part of the Wills Valley road which lies outside of Alabama and in Georgia, an obligation which from the very nature and purpose of the act could never have been contemplated. If the grant had been intended to mean what is now claimed for it, such fact should appear therein, expressed in terms that would admit of no doubtful construction, and in such case, methods both adequate and appropriate would have been provided for carrying into effect such a grant; this, too, under the assumption (very properly suggested) that Congress had full knowledge of the topographical features of the country through which the proposed road was to be located. Such a state of facts is, however, not found in this grant; for while it gave public lands to Alabama for the construction of roads located over eight different routes within the State, with the general location of said routes and the termini thereof more or less particularly described in each case, it provided but one method for the disposition of the lands so granted, and that method necessarily determined the quantity of lands granted by the length of the various roads in the State.

The act of September 20, 1850 (9 Stat., 466), made a grant of land to the States of Illinois, Mississippi, and Alabama, to aid in the construction of a railroad from Chicago to Mobile. In the State of Illinois the general line of the route was described in the act as beginning "at the southern terminus of the Illinois and Michigan canal," and as ending at "a point at or near the junction of the Ohio and Mississippi rivers;"

and the granting clause provided "that there be, and is hereby, granted to the State of Illinois, for the purpose of aiding in making the railroad and branches aforesaid, every alternate section of land designated by even numbers, for six sections in width on each side of said road and branches." The right to select indemnity was confined to a fifteenmile limit, and the right of way granted through the State. The seventh section provided that, "in order to aid in the continuation of said Central Railroad from the mouth of the Ohio river to the city of Mobile, all the rights, privileges, and liabilities herein before conferred on the State of Illinois shall be granted to the States of Alabama and Mississippi, respectively, for the purpose of aiding in the construction of a railroad from said city of Mobile to a point near the mouth of the Ohio river; and that public lands of the United States, to the same extent in proportion to the length, on the same terms, limitations, and restrictions, in every respect, shall be, and is hereby, granted to said States. of Alabama and Mississippi, respectively." Under the section last quoted the States therein named claimed a quantity of land equal to the one-half of six sections in width, on each side of said road throughout its entire length, from Mobile to the Ohio river, to be taken wherever found in those States,,within fifteen miles on each side of the road. Considering the question thus raised, Attorney General Crittenden held August 7, 1862 (5 Ops., 603), that the grant in the seventh section was in severalty to Alabama and Mississippi, and said that, "although the railroad must pass through the States of Kentucky and Tennessee in its course from the city of Mobile to the mouth of the Ohio river, the statute has not mentioned either of those States, and there is no indication of any intention on the part of Congress to grant to the States of Alabama and Mississippi, or to either, a right of way through the States of Kentucky and Tennessee, or a right to survey and locate definitely a road through them. . . The mere description given in the statute of the contemplated Central Railroad from the mouth of the Ohio river to the city of Mobile confers no such powers or rights to the one State to operate within the territorial limits of any other State.

The whole length of the railroad through and within the State of Alabama, when actually surveyed and definitely located within that State under the direction of the legislature thereof, must determine, and limit, and define, the extent of the grant to that State."

In the construction of the grant made by act of May 17, 1856 (11 Stat., 15), where lands were conferred upon Florida, to aid in the construction of a railroad "from Pensacola to the State line of Alabama, in the direction of Montgomery," and upon Alabama, for the construction of a road "from Montgomery, in said-State, to the boundary line between Florida and Alabama, in the direction of Pensacola and to connect with the road from Pensacola to said line," Attorney-General Crittenden's decision, as cited above, was adopted and applied by this Department, November 7, 1857, it being held that "neither of said

States can select more land than has been granted to her, on account of the specific road or part of a road within her limits;" (1 Lester, 526). Again, under the date of June 14, 1858, the Department had before it the claim of Alabama to the right of selecting lands within that State, "which lie between the six-mile and fifteen-mile limits of the route of the road, which has been located within the State of Florida, in view of the grant to the latter State, by the same act of Congress." This claim was preferred under the act of May 17, 1856, but was rejected on the ground that "the location of said road within Alabama, determines the extent and location of the grant of lands to that State;" (1 Lester, 530). The case now in hand, so far as it rests upon an explicit grant, does not present any stronger claim to a favorable decision than those herein cited, and, as I see no reason for adopting a rule differing from that enunciated in said cases, I am of the opinion that said lists of selections should be rejected.

Your decision is affirmed.

DESERT LAND-FINAL PROOF.

CIRCULAR.

The depositions of witnesses in desert-land final proofs may be taken only before the register and receiver of the proper district, but those of claimants may be taken before a register or receiver, a United States commissioner, or a clerk of a court of record.

Commissioner McFarland to registers and receivers, December 10, 1884.

The regulations of this Office and Department (General Circular, March 1, 1884, p. 36) prescribe that the final proof in desert-land entries, "must consist of the testimony of at least two disinterested and credible witnesses, who must appear in person before the register and receiver.

These regulations do not expressly prescribe how the final affidavit of the claimant shall be made.

You are accordingly now advised that the final deposition of desertland applicants (Form No. 4–372, General Circular, p. 99) may be taken before a register or receiver of the land district in which the land is situated, or before the clerk of any court of record, or before a United States commissioner.

The depositions of witnesses can be taken only before the register or receiver of the land office in which the lands are situated.

(Approved Dec. 11, 1884, by Acting Secretary Joslyn.)

FINAL PROOF-PROTEST CASES.

INSTRUCTIONS.

Notice of final proof invites objection from all persons, whether or not in interest; at the time fixed therefor, adverse testimony is to be taken, and the claimant and all witnesses may be cross-examined; each party must pay the costs of transcribing the testimony of his own witnesses on direct examination, and that of the witnesses on the other side on cross examination.

Commissioner McFarland to register and receiver, Humboldt, California, December 10, 1884.

The publication in a recent number of the "Land Owner" of my letter to you of January 31, 1883 (11 C. L. Ó., 249), being liable to create a misapprehension relative to the proper practice in cases where final proofs are offered and objection to the same is made by adverse claimants or others, I deem it proper to advise you that the instructions contained in said letter have, since the same were rendered (nearly two years since), been overruled and set aside by subsequent decisions and instructions.

Notice to make proof is an invitation to all persons to come in and show cause why proof should not be allowed. It is not necessary that an objector should be a prior party to the record. It is not necessary that he should be a party in interest. When any person appears at the time and place set for making proof, and desires to object to such proof, all the testimony in favor of and against the entry should be taken, and a decision rendered in the same manner as in contest cases. The claimant and his witnesses may be cross-examined, and witnesses presented by an adverse party or by a protestant may be cross-examined by claimant. Each party must in such cases pay the costs of reducing to writing the testimony of his own witnesses, and his cross examination of the witnesses of the other side.

See the following, among other decisions and instructions, namely, A. & P. R. R. Co. v. Forrester (1 L. D., 481); Vasquez v. Richardson;*

[Secretary Teller, February 9, 1884; (10 C. L. O., 391).]

Richardson filed his declaratory October 24, alleging settlement October 20, 1881; Vasquez filed October 25, 1881, alleging settlement December 8, 1878; after duly published notice, Richardson tendered proof and payment June 6, 1882; Vasquez ·did not appear at the hearing, but subsequently protested and asked for a rehearing, which was allowed.

"Having made default at the hearing of June 6, without excuse, after duly published notice by Richardson, there was no warrant for allowing Vasquez a second bearing upon the same matter." Practice Rule 5" must be held to apply to original hearings, and not to allow the re-opening of a case which has once been heard under reguJar proceedings." "Where a party fails to appear at a regular hearing, he waives his