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was definitely located; and that by this segregation, the said tract became public land within the meaning of the granting act, it being not sold, reserved, or otherwise disposed of by the United States, and no pre-emption or homestead claim having attached at the time the line of said road was definitely fixed. While it is true that the grant was in presenti, it is also true that it specified the lands to be included therein as "public lands," and carefully defined what was meant by that term as used in the grant, and named a time when such definition of the term should apply, that time being when "the line of said road is definitely fixed." An absolute grant of land was made, but inasmuch as it was then impossible to know where the line of road would be finally located, so it was impossible to specify the particular tracts to be included within the grant; hence a time was named when the grant should be perfected, and at that time all "public land" as defined by the act, within certain fixed limits, was to pass to the grantee. The land in the case of Newhall v. Sanger (2 Otto, 761), was not in the same condition as in the case now under consideration, but was within the exterior limits of the false Mexican claim, when the road was located, and the required maps were made, the claim then being in liti gation and the land sub judice. In Ryan v. Railroad Company (9 Otto, 382), attention is directed to the obvious implication in the opinion delivered in the case of Newhall v. Sanger, that if the lands had been disembarrassed at the date of the grant, or their withdrawal from sale, they would have passed to the company.

In the case of Perkins v. Central Pacific Railroad Company (9 Copp's L. O., 201), the land was held to be excepted from the grant to the rail. road company; but the decision went upon the ground that at the time the line of road was definitely located, there was a valid pre-emption claim existing against the tract in question, and hence is not in conflict with the conclusion reached in the case.

I am of the opinion that the land in question was public land within the intent of the act of July 1, 1862, at the time when said grant took effect by the definite location of the road, and that a patent should issue therefor.

Your decision is therefore reversed.

RESSEMAN v. SAINT PAUL, MINNEAPOLIS AND MANITOBA RAILWAY COMPANY.

Under the rule in Van Wyck v. Knevals, it is held, that the line of the Saint Vincent extension of this company's road became definitely fixed and the company's right to land in its limits attached December 19, 1871, when the map of definite location of said line filed in the Department was accepted by the Secretary of the Interior, and not at the date of survey in the field, as formerly held.

Commissioner McFarland to register and receiver, Saint Cloud, Minn., October 27, 1883.

GENTLEMEN: By act of Congress approved March 3, 1857 (Stat. 11, p. 195), certain lands were granted to the then Territory of Minnesota to aid in the construction of proposed railroad lines in said Territory, consisting of "every alternate section of land, designated by odd numbers, for six sections in width on each side of each of said roads," with the privilege of selecting lands in lieu of tracts lost in place, as mentioned in the act, in alternate sections within 15 miles on each side of said roads. The time for the completion of the roads was fixed at ten years from the date of the act.

By act of March 3, 1865 (Stat. 13, p. 526), the act above mentioned was so amended as to grant ten sections per mile, instead of six, to each of the roads, with rights of indemnity within 20 miles of the lines of road, and the time for completion of the roads was extended to eight years from the date of the act.

The laws referred to apply to the Saint Paul and Pacific (now Saint Paul, Minneapolis and Manitoba) Railroad and its branches, known as Brainerd Branch and Saint Vincent Extension.

By act of March 3, 1871, the Saint Paul and Pacific Railroad Company was permitted to change the routes of its branch lines from those proposed by the original act of 1857, "with the same proportional grant of lands to be taken in the same manner along said altered lines as is provided for the present lines by existing laws," subject to all the conditions imposed by the former acts, and the additional condition that all lands along the abandoned lines should be released. (Stat. 16, p. 588.) In pursuance of this act the company proceeded to locate and construct the Saint Vincent extension line, no location having been previously made, and the entire line was located by survey in the field between May 18 and September 21, 1871. The right of the company has heretofore been held to have attached to lands along this line from date of survey in the field. In view of the fact, however, that the Supreme Court of the United States held, in the case of Van Wyck v. Knevals (Otto 16, p. 360), that—

The route must be considered as "definitely fixed" when it has ceased to be subject to change at the volition of the company. Until the map is filed with the Secretary of the Interior, the company is at liberty to adopt such a route as it may deem best, after an examination of the 4531 L 0-31

ground has disclosed the feasibility and advantages of different lines But when a route is adopted by the company and a map designating it is filed with the Secretary of the Interior and accepted by that officer, the route is established; it is, in the language of the act, "definitely fixed," and cannot be the subject of future change, so as to affect the grant, except upon legislative consent.

And the language of the act of March 3, 1865, amendatory of the act of March 3, 1857, under which the Saint Paul and Pacific Railway Company received its grant, being identical-so far as relates to definite location-with that of July 23, 1866 (Stat. 14, p. 210), considered by the court, it must be held that the existing rule is erroneous, and that the right of the Saint Paul and Pacific Railway Company attached to the lands within the limits of the grant for its Saint Vincent extension line on December 19, 1871, which is the date, as shown by the records of this office and the Department, when the Hon. Secretary of the Interior accepted the map filed by the company designating the route of the extension line.

You will, therefore, be governed in accordance with this rule in considering matters under this grant in future. The withdrawal of lands for the extension line was made by office letter of February 6, 1872, and became effective in respect to lands in your district upon receipt of said letter at your office February 12, 1872.

January 18, 1876, John Ressemann was permitted to make homestead entry No. 9410, for the SE. 4 NW. † and NE. † SW. 1, 3, 123, 31, the land being within the 10-mile or granted limits of the Saint Vincent Extension. The line of the road was completed to Melrose (a point beyond the land described) November 29, 1872, within the time prescribed by act of March 3, 1865.

On January 27, 1881, Ressemann's entry was held for cancellation by this office because of conflict with the right of the railroad company, the records of this office showing that the tracts embraced therein were vacant, unappropriated public land at the date of the act of March 3, 1871.

It having been established to the satisfaction of this office that Ressemann had settled upon the land in good faith and had valuable improvements thereon, Messrs. Curtis, Earle and Burdett, attorneys in this city for the railroad company, were requested by letter of May 2, 1881, to relinquish the land in favor of Ressemann, with the privilege of selecting other tracts in lieu thereof, as provided by act of June 22, 1874. It appears that no response was made to this request, and on October 27, 1881, the attorneys were asked whether the company would comply with the same.

With a letter dated November 8, 1881, the attorneys transmitted to this office a relinquishment of the land by the company, conditioned upon the right of the company to select other tracts in lieu thereof.

By letter F of November 21, 1881, you were advised that Resseman's

entry would be allowed to remain intact, and subject to his ability to make satisfactory final proof.

February 10, 1882, the entryman submitted final proof, showing full compliance with the requirements of the homestead law, and final certificate and receipt No. 5059 were that day issued in his name and duly transmitted with the final proof to this office.

The relinquishment of the land by the railroad company is therefore accepted, subject to the conditions therein expressed, and the homestead entry No. 9410, final No. 5059, is this day approved for patenting.

The attorneys of the railroad company will be advised by this office of the action in the premises, and you are instructed to inform other parties in interest respecting the same.

CARRAHAR v. IOWA FALLS AND SIOUX CITY RAILROAD COMPANY. Under the rule announced in Van Wyck v. Knevals it is held that the line of the road became definitely fixed, and the right of the State and the company attached October 13, 1856, when the map of definite location filed in the Department was accepted by the Secretary of the Interior, and not on the date of survey in the field, as heretofore held.

The tract in question was vacant public land at the date the grant took effect, and it is not now subject to appropriation under the laws of the United States.

Commissioner McFarland to register and receiver, Des Moines, Iowa, December 3, 1883.

GENTLEMEN: I have considered the appeal of John Carrahar from your decision rejecting his application to enter under the timber-culture law the NE. NE. 1, 1, 89, 46 W.

The tract is within the six-mile or primary limits of the grant to the State by act of May 15, 1856 (11 Stat., 9), for the Dubuque and Pacific, now Iowa Falls and Sioux City Railroad. The right of the road under said grant has heretofore been held to have attached from date of survey in the field. The line of the road opposite the tract now in question was surveyed July 7, 1856.

The United States Supreme Court, however, in the case Van Wyck v. Knevals (16 Otto, 360), held that the right of the State of Kansas, under a similar railroad grant, attached when the route of the road was definitely fixed, beyond the power of change by the railroad company, so as to affect the grant, and that this was not done until the route had been adopted by the company, and a map designating it had been filed with and accepted by the Secretary of the Interior.

The Dubuque and Pacific Railroad Company filed in this Department a map showing the definite location of its road on October 11, and the same was accepted by letter of October 13, 1856. Said map has since been used as a basis for the adjustment of the grant, and the right of

the State and the company will accordingly, hereafter, be held to have attached along the entire road October 13, 1856.

The records show that the tract in dispute was selected as swamp February 21, 1859, and that the claim of the State under said selection was finally rejected on February 26, 1878. It was also selected under the railroad grant, but was not included in the lists approved to the State, because of conflict with the swamp claim.

The tract is also within the ten-mile limits of the grant to the State by act of May 12, 1864 (13 Stat., 72) for the Sioux City and Saint Paul Railroad Company, but said company's claim was rejected October 2, 1879, and it took no appeal.

As shown by the facts above recited, the tract was vacant public land at the date the grant for the Dubuque and Pacific Railroad Company took effect, October 13, 1856, and it passed thereunder. It is not subject to appropriation under the laws of the United States, and the application of Carrahar is therefore rejected, subject to appeal within sixty days. You will so advise him. The attorney for the railroad company will be advised by this office.

THE SOUTH AND NORTH ALABAMA RAILROAD COMPANY.

The granting act provides that the rights of the companies to the lands shall attach "when the lines or routes of said roads are definitely fixed", but does not provide for the filing of a map of definite location.

Held, 1, that the lines of the roads are to be regarded as definitely fixed on the dates that the maps of definite location were filed in the Land Department, and not on the dates that they were fixed on the surface of the earth; 2, that this company is not entitled under the act of June 22, 1874, to indemity for lands upon which the entries or filings of settlers were allowed prior to the filing of said maps.

Secretary Teller to Commissioner McFarland, December 4, 1883.

SIR: I have considered the case presented by the appeal of the South and North Alabama Railroad Company from your decision of July 15, 1882, rejecting a list of selections aggregating 5,160 acres filed by said company March 7, 1882, and claimed under the act of June 22, 1874.

A grant of lands to aid in the construction of certain railroads was made by Congress June 3, 1856 (11 Stat., 17), to the State of Alabama, in the following terms:

That there be, and is hereby, granted to the State of Alabama * every alternate section of land, designated by odd numbers, for six sections in width on each side of said roads. But in case it shall appear that the United States have, when the lines or routes of said roads are definitely fixed, sold any sections or any parts thereof, granted as aforesaid, or that the right of pre-emption has attached to the same, then it shall be lawful for any agent or agents to be appointed by the governor of said State to select, subject to the approval of the Secretary of the Interior, from the lands of the United States, nearest to the tiers of sec

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