SCHOOL LAND-RAILROAD GRANT.

SOUTHERN PACIFIC RAILROAD COMPANY (BRANCH LINE) v. STATE OF CALIFORNIA.

Although the State indemnity selection is invalid, because made prior to the final survey of the rancho claim, nevertheless, as it was made in 1867, when the practice prevailed of allowing the State to make such selections prior to and subject to the determination of the loss of land in place by a rancho claim, it was voidable, and not void; such being its status at date the right of the company attached, there was such an appropriation as excepted the land from the railroad grant. Acting Secretary Joslyn to Commissioner McFarland, August 22, 1884. The case involves the N. W. † of N. E. and Lots 1, 2 and 3 of Sec. 35, and Lots 3 and 4 of Sec. 25, T. 16 S., R. 21 E., S. B. M., Los Angeles district, California, on appeal by the company from your decisions of April 17, and June 13, 1883.

The tract is within the twenty miles (or granted) limits of the grant of March 3, 1871 (16 Stat., 573, 579), to the company, the right whereof attached (upon filing the map of designated route in your office) April 3, 1871, and the withdrawal for which was made May 10 ensuing.

It appears that under date of April 11, 1867, the State selected (per R. & R., No. 885 B) the tract in question, together with the SE. 4 of SE. of Sec. 26, T. 16 S., R. 21 E., S. B. M., in lieu of the NE. 1, N. § of SE. 4, and SW. 4 of Sec. 36, T. 3 S., R. 11 W., S. B. M., alleged to have been lost in place, the same being within the rancho Los Coyotes. But, the final survey of said rancho not having been approved and patented until March 9, 1875, your office canceled said selection March 29, 1881, holding the same to be invalid upon the ground that the loss of section 36 had not been ascertained or determined at the date of such selection. It thus appears that the selection in question antedated the survey of said rancho, and remained extant upon the record nearly fourteen years. March 7, 1882, J. W. Shanklin, surveyor-general of California, requested your office to reinstate said selection, or permit the State to make a new selection of the land, alleging that plat of the survey of said rancho "was approved by the surveyor-general in 1859 upon Hancock's survey made in 1857; that that was the ground whereon the State and United States officers based their action," and not upon the date of the patent; that "the surveyor-general says that the records of his office fail to show that the court to which the survey was referred either approved or disapproved the survey as approved by the surveyor-general in 1859, and as advertised under the law of June 14, 1860;" and that in such case the Land Department never acquired jurisdiction over said survey according to Sec. 2, Act of July 1, 1864.

The records of your office show, however, that the survey of said rancho (including Sec. 36, T. 3 S., R. 11 W.), which formed the basis for the patent, was made pursuant to the provisions of the act of July 1, 1864 (13 Stat., 332), in December, 1868, published in March and April, 1873, approved by the surveyor-general of California December 8, 1873, and approved and patented by your office March 9, 1875.

By your decision of April 17, 1883, you held that as the State had not at the date of her selection lost the land "in place," it was not competent for her to select indemnity therefor, and that hence such selection was without authority of law; but you further held that (the tract in question having been thus appropriated by the State in the year 1867, and until March 29, 1881) such selection was a bar to any other disposition of the land until the selection was canceled," and that (the railroad grant having been made meantime, and the line of road definitely located before said selection was decided to be invalid and canceled) the same was such an appropriation of the land as excepted it from said grant.

You accordingly permitted the State to re-select said land. The company's attorney having by letter dated April 24, 1883, asked for a reconsideration of your said decision, you rendered your decision of June 13, 1883, declining to reconsider the former decision. Wherefore the company appeals, asserting that as the State acquiesced in and failed to appeal from your predecessor's decision of November 16, 1880, holding, said selection for cancellation (because at date of same said rancho had not been surveyed, nor had any loss to the school grant accrued), her right is concluded and she is estopped to deny the invalidity of said selection.

The 6th section of the act of July 23, 1866 (14 Stat., 218), expressly declares that the act of March 3, 1853 (10 Stat., 244)

Shall be construed as giving the State of California the right to select for school purposes other lands in lieu of such sixteenth and thirtysixth sections as were settled upon prior to survey, reserved for public uses, covered by grants made under Spanish or Mexican authority, or by other private claims, or where such sections would be so covered if the lines of the public surveys were extended over such lands, which shall be determined whenever township lines shall have been extended over such land, and in case of Spanish or Mexican grants, when the final survey of such grants shall have been made. The surveyor-general for the State of California shall furnish the State authorities with lists of all such sections so covered, as a basis of selection, such selections to be made from surveyed lands, and within the same land district as the section for which the selection is made.

It thus appears that the selection in question was premature, the question of the loss of the said Section 36 to the State not having been ascertained or determined at the date of such selection. Nor can such question ever be determined until the final survey of the rancho claim shall have been made pursuant to the express provisions of the said statute, inasmuch as the status of neither Section 16 nor Section 36 could be ascertained until the extent and exact locus of the rancho were ascertained and determined in the manner prescribed by law. Until such fact was ascertained and determined, it could not be certainly known whether any basis for such selection existed, or whether the State had actually lost either, or both, or any portion of either of said sections"in place."

I am aware that in the case of Selby v. State of California (3 C. L. O., 4), my predecessor, Mr. Secretary Chandler, held (under date of March 10, 1876,) that an invalid State selection does not reserve the land covered thereby from pre-emption or homestead claims; and that State selections are invalid that have been made in lieu of Sections 16 and 36 embraced in unadjusted Spanish or Mexican grants. And under date of August 18, 1876, he further held in the same entitled case (Ibid., 89), that a State's right to make such selections does not attach until the approval by your office of the final survey of a rancho embracing said sections; that the State's selection acquired no validity until approved by this Department, "but the approval under such circumstances should not be held to relate back to the date of selection, to the injury of adverse claims to the land;" and that his aforesaid "decision of March 10, 1876, should be vacated." And for future guidance, in furtherance of the aforesaid statutory provision, my said predecessor directed that no further selections should be permitted in advance of the approval of the survey; and the surveyor general of California should be instructed not to furnish lists to the State of Sections 16 and 36, included within the limits of any private grant, until he shall have received official information from you that the survey thereof has been approved."

It will be observed, however, that the selection in question was made (as herein before stated) April 11, 1867, when a different practice obtained, and it was then regarded as competent for the register and receiver to allow such selections, subject to final adjudication.

In the celebrated case of United States v. Schurz (102 U. S., 378) the Supreme Court say: "The whole question is one of disputed law and disputed facts. It was a question for the land officers to consider and decide before they determined to issue McBride's patent. It was within their jurisdiction to do so. If they decided erroneously, the patent may be voidable, but not absolutely void."

As before stated, although said selection antedated even the survey of said rancho, the substantial fact has been shown, nevertheless, that the selection was prima-facie valid and remained extant upon the record nearly fourteen years, during which period it operated as a bar to the attachment of the company's right, or to any other disposition whatsoever. See Perkins v. Central Pacific R. R. Co. (1 L. D., 357); Graham v. Hastings & Dakota Ry. Co. (Ibid., 380). Hence it was not absolutely void, but merely voidable; and the question whether it were void or voidable could not be determined in the first instance, but necessarily involved an adjudication to determine such question. See Atlantic and Pacific R. R. Co. v. Fisher (1 L. D., 406).

I therefore concur with you in the opinion that the selection in question was such an appropriation of the land as to except the same from the operation of the company's grant.

Your decisions are accordingly affirmed.

INDIAN HOMESTEADS-ACT OF 1884.

CIRCULAR.

WASHINGTON, D. C., August 23, 1884.

Registers and receivers, U. S. district land offices:

GENTLEMEN: The following extract from the Act of July 4, 1884, making appropriations for the current and contingent expenses of the Indian Department, is published for your information and guidance: "That such Indians as may now be located on public lands, or as may, under the direction of the Secretary of the Interior, or otherwise, hereafter so locate, may avail themselves of the provisions of the homestead laws as fully and to the same extent as may now be done by citi zens of the United States; and to aid such Indians in making selections of homesteads and the necessary proofs at the proper land offices, one thousand dollars, or so much thereof as may be necessary, is hereby appropriated; but no fees or commissions shall be charged on account of said entries or proofs. Ali patents therefor shall be of the legal effect, and declare that the United States does and will hold the land thus entered for the period of twenty-five years, in trust for the sole use and benefit of the Indian by whom such entry shall have been made, or, in case of his decease, of his widow and heirs according to the laws of the State or Territory where such land is located, and that at the expiration of said period the United States will convey the same by patent to said Indian, or his widow and heirs as aforesaid, in fee, discharged of said trust and free of all charge or incumbrance whatsoever."

Upon any Indian applying to enter land under the above act you will allow him to do so without payment of fee or commissions, but you will require him to furnish a certificate from the agent of the tribe to which he belongs, that he is an Indian, of the age of twenty-one years, or the head of a family, and not the subject of any foreign country. The entries will be numbered in the same series as other homesteads, but the papers, abstracts, and tract books should be annotated "Indian homestead, act July 4, 1884."

PRE-EMPTION-SETTLEMENT; SECOND FILING.

STEELE v. ENGELMAN.

Engelman settled on a lot included in his filing, which lot he afterwards abandoned. Having failed to connect himself with any part of the remaining portion of his claim by settlement until after an adverse right attached, he cannot hold as a pre-emptor.

One is not disqualified for filing for land upon which he had settled by reason of having previously filed for land upon which he had not settled.

The ruling in the case of Ramage v. Maloney is not applicable where the adverse claim is initiated prior to notice of final proof.

Acting Secretary Joslyn to Commissioner McFarland, August 25, 1884.

I have considered the case of Erasmus D. Steele v. John C. Eugelman, as presented by the appeal of Engelman from your decision of November 15, 1883, rejecting his final pre-emption proof for the N. of NE. of Sec. 30, and SW. † of SE. † of Sec. 19, T. 17 N., R. 1 E., Humboldt, California.

December 26, 1879, Engelman filed his declaratory statement for the land above described, including therein also Lot 8 of Sec. 30, alleging settlement November 1, 1879.

March 27, 1882, Steele made homestead entry for the SW. of SE. of Sec. 19 and N. of NE. and SW. of NE. of Sec. 30.

July 28, 1882, Engelman gave notice by publication of his intention to make final proof and payment September 16, 1882.

In the notice thus published no reference was made to Lot 8, for the reason, as it appears, that he had prior thereto abandoned said lot for the benefit of his son, D. W. Engelman.

On an affidavit of Steele, duly corroborated, a hearing was ordered by the local office as to Engelman's right to purchase under the preemption law.

Steele's affidavit raised the following points:

1. Engelman was not a qualified pre-emptor at the time he filed his declaratory statement.

2. The time allowed the pre-emptor by law for making final proof and payment had expired prior to his making the same.

3. Engelman failed to comply with the requirements of the preemption law in the matter of residence.

On the charge as laid in the second specification the local office found for the contestant and recommended the rejection of the final proof. Your decision citing Ramage v. Maloney (1 L. D., 468) overruled the local office, but rejected the final proof on the third ground. I am unable to concur in this conclusion. In the Ramage case there was an attempt to initiate an adverse claim after commencement of publication, but such attempt was not allowed to defeat the right of the pre-emptor to make final proof. This case, however, should be distinguished from the one cited, in that Steele had asserted a rightful claim