COMMISSIONER'S DECISION, AUGUST 22, 1883. I am in receipt of your letter of the 27th of June last, transmitting the application of Isaac S. Mansfield to make timber-culture entry of the NE. 24 of Sec. 27, T. 4 N., R. 34 E., W. M., in Oregon, under the Act of June 14, 1878, and requesting special instructions. It appears that the land in question is within the 40-mile limits of the grant of July 2, 1864 (13 Stat., 365), made to the Northern Pacific Railroad Company, as fixed by the withdrawal upon map of general route, filed August 13, 1870. The first withdrawal was ordered by letter of September 20, 1870, for twenty miles on each side of said line of general route, and did not include said land. The additional withdrawal of the second twenty miles, making the forty miles, was ordered by telegram of February 9, and letter of February 14, 1872, received at La Grande February 12 and March 4, respectively, of that year. The road has not yet been definitely located opposite the land in question. Whatever may be held as to the effect of the mere filing of the map of general route, it is clear that the tract, if it was public land, has been withdrawn from settlement and entry since March 4, 1872, by executive order. The land applied for is also included within the limits of the land ceded to the United States, by treaty between the United States and the Walla Walla, Cayuses, and Umatilla tribes and bands of Indians in Washington and Oregon Territories, concluded at Camp Stevens in the Walla Walla valley, Washington Territory, June 9, 1855, and ratified by the Senate March 8, 1859. By the terms of said treaty, "the above named confederated bands of Indians cede to the United States all their right, title and claim to all and every part of the country claimed by them, included in the following boundaries," . . with a proviso that a certain portion thereof within certain specified natural boundaries shall be set apart as a residence for said Indians to be held and regarded as an Indian reservation. February 18, 1867, plats of Government surveys in which said land is situated were filed in the office of the Oregon City land district, and were subsequently withdrawn May 28, 1867. Corrected plats were filed in the local office June 28, 1872. The object of the withdrawal is clearly set forth in the following order to the surveyor-general of Oregon, May 28, 1867: " You are directed to withdraw the plats of Townships 3 and 4 N., R. 33 E., and 3 and 4 N., R. 34 and 35 E., from the register's office, until the lands of the Umatilla Indian reservation shall have been surveyed, and the areas on both sides of Wild Horse creek calculated and expressed upon the plats, in order that the reservation may be protected from sale." It is clear that the lands mentioned in said treaty, not included in that portion reserved for an Indian reservation, having been ceded by definite boundaries, became public lands at the date of the ratification of said treaty; (see Secretary's decision in Crow reservation, Montana*). But it is contended on the part of the applicant that the withdrawal of the plats of survey of the townships, above mentioned, operated to reserve all the lands in said townships and defeat the claim of the railroad company under the grant. An inspection of the plats will show the fallacy of this position. By the terms of the treaty, the Wild Horse creek, traversing these townships from east to west, is made the boundary line of the Indian reservation on the north, and only the lands in said townships situate south of said creek fall within the limits of the reservation as defined in said treaty. All of the said lands falling north of said creek were public lands and subject to grant or settlement in like manner as other public lands. Said lands were settled upon by many settlers during the time when said plats were withdrawn, and the claims of such settlers have been allowed by this office; the claim of the railroad company has also been repeatedly recognized, as is fully set forth in office letter "F," December 2, 1882, in the case of H. J. Hale et al. The application of Mr. Mansfield is accordingly rejected. RAILROAD GRANT-HOMESTEAD CONFLICT. SOUTH & NORTH ALABAMA R. R. Co. v. LOGAN. On July 26, 1871, was filed the map, definitely locating the line between Calera and [Secretary Teller, May 25, 1883; (10 C. L. O., 96.)] "I inclose here with an application for the recognition of mining claims, locations, and applications for survey and patent, upon the public lands ceded by the Crow Indians, in Montana, by agreement of June 12, 1880, ratified by Congress April 11, 1882 (22 Stat., 42). "I am of opinion that the said lands, being ceded by definite boundaries, became public lands at date of the approval of the act, and the legal rights of claimants and settlers took effect therefrom. Unless you are in possession of data, instructions, or decisions, which in your judgment should modify this view, you are directed to act upon the same, and to open the offices of the surveyor-general and of the register and receiver to the receipt of all legal applications for the lands in question." entry of Logan for the E. of NW. 4, and W. of NE. 1, of Sec. 21, T. 22 N., R. 17 E., Montgomery, Alabama. The company claims the land as lying within the indemnity limits of the grant of June 3, 1856 (11 Stat., 17), and therefore subject to its selection for lands lost in place. November 4, 1868, Napoleon B. Logan made homestead entry for said tract, said entry being of record until November 14, 1877, when it was canceled. October 11, 1880, James B. Logan made his entry. July 26, 1871, the company filed in your office a map showing the definite location of the road between Calera and Montgomery, as adopted by resolution of its board of directors on May 30, 1871, and the latter date has been held by your office as the time when the withdrawal became effective within the indemnity limits. As an uncanceled homestead entry covered the land in question both at the time said resolution was adopted and the map filed, it is apparent that, whichever of said dates is adopted as the date of withdrawal, the claim of the company must fail, it not having selected said tract prior to the entry now under consideration. Your decision is therefore affirmed and the appeal dismissed. RAILROAD GRANT-PRE-EMPTION CONFLICT. ST. PAUL & PACIFIC R. R. Co. v. LARSON. A pre-emption filing having a prima-facie valid existence, capable of being perfected, ́ at date of a withdrawal of lands within the indemnity limits, excepts the tract covered by it from the withdrawal. Acting Secretary Joslyn to Commissioner McFarland, October 30, 1884. I have considered the case of the St. Vincent Extension of the St. Paul and Pacific Railroad Company v. Gustav Larson, involving the SE. of NW. 4, the NW. of SE., and the SW. of NE. 1, of Sec. 15, T. 124, R. 37, Benson, Minnesota, on appeal by said company from your adverse decision of March 30, 1883. The land is within the indemnity limits of the grant to said company. You state that Daniel Frouberg "pre-empted said piece of land in the latter part of May or first of June of the year 1871," and that at the time of the withdrawal for the benefit of said company, to wit, on or about September 3, 1872, said pre-emption filing had a prima-facie valid existence, capable of being perfected. Larson seems to have been a resident upon the land in question since July, 1875, at which time he bought the improvements thereon. February 28, 1882, he applied to make homestead entry of said land, which application was rejected by the local office on the ground that the land was part of an odd section lying within the indemnity limits of said grant. On appeal you reversed 7747 LAN--20 the decision of the local office, and directed that Larson be permitted to make the homestead entry. The existence of a valid pre-emption filing capable of being perfected at the time of withdrawal, excepted the land from the withdrawal; at that time it was not public land; (Nor. Pac. R. R. Co. v. Prest, 2 L. D., 506). I affirm your decision. REVIEW; JANUARY 7, 1885. The questions so ably presented by counsel for the company on this motion were fully considered in the Prest case, above cited, and I see no reason for now entertaining an opinion differing from the one therein expressed. I am further confirmed in this conclusion by the decision (rendered at the October Term for 1884) of the U. S. Supreme Court, in the case of Kas. Pac. R'y Co. v. A., T. & S. F. R. R. Co., in which it was said, with reference to the status of lands withdrawn within indemnity limits: "But what unappropriated lands would thus be found and selected, could not be known before actual selection. A right to select them within certain limits, in case of deficiency within the ten mile limit, was alone conferred; not a right to any specific land or lands capable of identification by any principles of law or rules of measurement. Neither locality nor quantity is given from which such lands could be ascertained. If, therefore, when such selection was to be made, the lands from which the deficiency was to be supplied had been appropriated by Congress to other purposes, the right of selection became a barren right; for, until selection was made, the title remained in the government, subject to its disposal at its pleasure." The motion is therefore dismissed. CALIFORNIA-INDEMNITY SCHOOL LANDS. STATE OF CALIFORNIA v. DODSON. A partial survey of a Mexican or Spanish grant, declared to be final by the Secretary of the Interior, which necessarily determines that a portion or all of section 16 or 36 belongs to the grant and is lost to the State, is the final survey of said grant contemplated by Sec. 6, Act of July 23, 1865. In this case, the west and north lines of Las Virgenes rancho were formally and finally decided by the Secretary to be identical with the east and south surveyed lines of the ranchos El Conejo and Simi, which joined each other, at right angles; under said decision said surveyed lines became the final survey, aud, as the land in question was embraced by them, entitled the State to make lieu selection. Acting Secretary Joslyn to Commissioner McFarland, January 9, 1885. I have considered the case of The State of California v. Nelson H. Dodson, involving the NE. of the NW. 4, and S. of NW.4, of Sec. 14, T. 14 S., R. 2 W., S. B. M., Los Angeles district, California, on appeal by the State from your decision of September 15, 1883, awarding the land to Dodson. It appears that on December 9, 1882, the State of California made indemnity school selection No. 770 of this land and an adjoining forty, in lieu of the SW. 4 of Sec. 16, T. 1 N., R. 18 W., S. B. M. It appears further that said last-named quarter section lies within the limits of the rancho Las Virgenes, which was surveyed by Goldsworthy in 1875 and 1876. Said surveys were not approved, and on July 11, 1878, the Minto survey was ordered and duly made. Said last-named survey being contested, an investigation was ordered October 22, 1880, and on June 10, 1881, as the result of said investigation, the Minto survey was set aside by this Department, and a resurvey was directed, to include the Canada del Triumpho (the tract in controversy), for the southern and eastern limits "following substantially the lines of Goldsworthy's first survey, and bounding the tract on the north and west by the lines of the patented ranchos Simi and El Conejo." Objection to this action being made by certain claimants, it was held by the Department on May 2, 1882, that "the first Goldsworthy survey conforms as nearly as practi cable to the petition, diseño, grant, and decree of confirmation, in respect to the length and width of the juridical measurement of the grant." A protest, which was subsequently made, was dismissed by decision of July 2, 1883, wherein it was ruled that the location of the lines of Las Virgenes "must be held definitely settled by the former action of the Department." Meanwhile, in October 1882, the resurvey of the rancho Las Virgenes was made, which was approved by your office September 5, 1883, when patent issued. On December 9, 1882, the State of California made the indemnity selection aforesaid. On April 14, 1883, the State assigned her interest in the land to one Paine, who made improvements thereon, and in the following May issued to him a certificate of purchase. In July or August 1883, Mr. Dodson filed his application for a timber culture entry on the land in controversy, which was rejected by the local office. for conflict with the State's selection. On appeal your office canceled the State's selection on the ground that, being made before approval of the final survey, it was illegal and void, and awarded the land to Dodson. Paine has filed an appeal from said action, supplementary to that of the State, claiming to be a party in interest by virtue of his purchase and improvements prior to any claim to the land by Dodson. In the view I take of the case, it is unnecessary to discuss this aspect of it. The question is as to the validity of the State's selection. By Section 7 of the act of March 3, 1853 (10 Stat., 244), which granted Sections 16 and 36 in each township to California, it was provided that "where such sections may be taken by private claims, other land shall be selected by the proper authorities of the State in lieu thereof"; and by Section 6 of the Act of July 23, 1866 (14 Stat., 218), it was provided that the former act should be construed as giving to the State the right of indemnity selection, "which shall be determined in case of Spanish or Mexican grants when the final survey of such grants shall have been made." In |