Meredith alleges no facts that were not alleged and passed upon under his first application. The state of facts material to the issue are the same now as they were then. The fact that the present application is made under the homestead law raises no new question as to priority of right between Meredith and the railroad company; it raises no question which was not settled by the decision upon his first application; and although the ruling of the Department has since changed, cases decided under the former ruling are not to be reopened. (See case of Perkins, Copp, vol. 9, p. 201.)" In view of all the facts it is obviously unnecessary to authorize a hearing to determine the priority of right to the N. NE. 4, as between Larsen and Olson, because Larsen could not take the land as against the railroad company, even though his settlement upon the same may have been prior to that of Olson. The principle laid down by the Supreme Court in Atherton v. Fowler (6 Otto, 513), invoked by Larsen's attorney, is not applicable as against the admission of Olson's entry, because, since the promulgation of the Secretary's decision of April 20, 1881, Larsen has remained upon the land, if at all, without shadow of claim, and must be considered a mere trespasser, as far as the United States is concerned. Larsen may ap peal in sixty days.

In considering Olson's claim as against the railroad companies, the rule established by the Graham decision (herein before cited) is applica ble, and it must be held that the entry of Cosgrove, No. 1110, existing at date of grant to the Saint Paul and Pacific Company, and at date of withdrawal for the Hastings and Dakota Company, excepted the land from the grant for the one and the withdrawal for the other, and upon the cancellation of said entry the land became subject to entry or selec. tion by the first legal applicant.

Being excepted from the grant to the Saint Paul and Pacific Company the land was not subject to selection by that company. The selection of the tract made by said company September, 18, 1880, is therefore this day held for rejection subject to the right of the company to appeal within sixty days.

The Hastings and Dakota Company has not selected the land, and it was legally subject to pre-emption and homestead entry at the date of Olson's alleged settlement. The facts respecting Olson's residence upon the land are very satisfactorily established, and his right to the same is therefore held to be superior to that of the railroad company last mentioned, subject to the right of the company to appeal within sixty days. Should this decision become final, Olson will be allowed to enter the land in controversy.

The attorneys in this city for the several companies and parties mentioned will be advised by this office respecting this decision, and you are directed to advise all other parties in interest of the same, and at the proper time report proceedings to this office.

SUBSISTING ENTRY-INDEMNITY LIMITS.

PREST v. THE NORTHERN PACIFIC RAILROAD COMPANY.

A homestead entry existing upon a tract within the indemnity limits at date of withdrawal is such an appropriation of land as excludes it from the withdrawal, and it is subject to appropriation by the first legal applicant.

Secretary Teller to Commissioner McFarland, May 23, 1884.

SIR: I have considered the case of Jasper H. Prest, cash entry No. 1,908, of lots 8, 9, 10, and 11, Sec. 5, and lots 3, 4, and 9, of Sec. 7, T. 9 N., R. 10 W., Vancouver, Wash., on appeal by the Northern Pacific Railroad Company from your decision of December 19, 1881, holding Prest's entry for approval for patent.

The land is within the indemnity limits of the Northern Pacific Railroad Company. Withdrawal of lands within such limits was made for the benefit of such company September 13, 1873.

The land covered by said entry was embraced in homestead entry No. 1,648, by James O'Leary, made March 22, 1872, and canceled April 3, 1879.

Prest, the cash entryman, filed declaratory statement No. 480, July 28, 1879, alleging settlement May 14, 1879.

The question presented is whether O'Leary's homestead entry, existing at the time of the withdrawal, was such an appropriation of the land as excluded it from the operation of the withdrawal, and from the indemnity grant, to such an extent as would authorize the awarding of it to the first legal applicant.

This question was expressly decided by my predecessor in the case of Baughman v. Oregon Central Wagon-road Company (Copp's P. L. L., vol. 2, p. 860).

It is claimed by the Northern Pacific Company that said decision was not well considered and should not be followed.

Lands within indemnity limits are not granted lands. The Company as to those lands does not claim to acquire title until actual selection. In this case there has been no selection. The claim of the company is that when homestead entry No. 1,648 was canceled the tract fell within the terms of the withdrawal of 1873, and should not again be the subject of entry, but should be held to await the exercise of the "floating right" of the company to select it in lieu of lands assumed to be lost in place.

Notwithstanding the withdrawal, your office retained jurisdiction of tracts covered by entries and pre-emptions at the time the withdrawal was made, and upon compliance with law would carry such entries and pre-emptions to patent. Does your office lose jurisdiction of those tracts by reason of cancellation, subsequent to withdrawal? If this

be so, I call attention in passing to the fact that they could not be awarded to successful contestants under the act of May 14, 1880.

What does a withdrawal withdraw? I think it will be found, both upon principle and authority, that when made in general terms it only withdraws from market public lands lying within the limits of the withdrawal. That lands covered by homestead entries are not public lands is well settled by the decisions of the Department and of the courts. (Graham v. Hastings and Dakota Railroad Company, 9 Copp, 236; opinion Attorney-General MacVeagh, July 15, 1881.) "The words 'public lands' are habitually used in our legislation to describe such as are subject to sale or disposal under general laws." (Newhall v. Sanger, 92 U. S., 761.) Lands then held under homestead entries would not be public lands, and would not fall within the prohibition of the withdrawal.

It is claimed, however, that if the homestead entry is canceled subsequently to withdrawal, the tract then falls within the ban of the withdrawal. This effect can only be reached by construing the order to be an order not only in presenti but in futuro. Such a construction would be more comprehensive than that generally given to a Congressional grant or a legislative withdrawal following the filing of a map of definite location.

It was held in Thomas v. Railroad (3 C. L. O., 197), that a grant to a railroad company would not take lands otherwise appropriated by reason of homestead entries existing at date of grant or of definite location, although subsequently canceled.

In the matter of the Montgomery and Pensacola Railroad (1 Lester, 532), Secretary Thompson said: "I think the instructions respecting the withdrawal of the lands from market should be construed as not embracing any lands excepting those clearly within them" (i. e., within the meaning and effect of the act). In reference to the grant to Wisconsin he also said (1 Lester, 539): "Strictly construed, those orders (of withdrawal) reached only to lands that were in market at the date of withdrawal."

In Railroad v. Fisher (9 Copp L. O., 80) I said:

There can be no doubt that, by the withdrawal, the grant took effect upon such odd numbered sections of public lands within the specified limits as were not excluded from its operation.

In Trepp v. Northern Pacific Company (8 C. L. O., 181) Secretary Kirkwood said:

Now if there was a pre-emption claim (not since abandoned) attaching to the land at the date of withdrawal, it excluded the land from the withdrawal and from the grant.

And in the Perkins case I held that the fact of subsequent abandonment was immaterial.

These are instances of construction put upon withdrawals within granted limits. If any distinction is to be made it seems to me that

the withdrawal of lands within indemnity limits should be more strictly construed against the grantee than a withdrawal within granted limits. The first is not ordered by the act. It is made in the sound discretion of the Department. Under the scheme of the granting act to the Northern Pacific Company which designates indemuity limits, and under the provision in the act that lands in lieu of those lost in place shall be selected "under the direction of the Secretary of the Interior," it has come to be regarded as the duty of the Secretary to withdraw from other disposition a sufficient quantity of lands within indemnity limits. to make good those lost in granted limits.

If the selection of indemnity lands is to be made under the direction of the Secretary of the Interior, all that can be demanded of him by the railroad company is that he shall not allow the lands within the indemnity limits to be appropriated to such an extent that the railroad company cannot receive the full amount granted to it. To protect the railroad company the Secretary may be required to withdraw all the lands within the indemnity limits, or a part only. He may be required to allow (if the railroad company's grant is one of quantity) the company to select all of the lands within the indemnity limits; or he may be required to allow only a small portion of the lands to be selected. It is discretionary with him as to what lands he will allow the company to select. It is not by this intended that the Secretary can arbitrarily and without good cause refuse to affirm the selection made by the company, for this discretion must be the exercise of judgment on the part of the Secretary. He ought not to allow the company to select lands on which settlers have made improvements under the supposition that they would not be required to make good the amount granted to the company, unless it is necessary to do so in order to give the company its full amount of land granted to it. If then the selection is under the direction and control of the Secretary, the withdrawal must be; and if at any time the Secretary is of the opinion that he has withdrawn more land than will be needed from which the selections are to be made, he may modify such withdrawal, or may revoke the order of withdrawal.

Congress, by the act and the joint resolution of 1870, provided with liberality for the selection of lieu lands by establishing broad indemnity limits. The Secretary of the Interior, with the opportunity thus afforded, and being clothed with ample power by the act to direct the selections, ought so to direct them as to protect occupants who have acted in good faith, so far as it can be done consistently with law and due regard to the rights of the company guaranteed by the act.

In my letter of May 17 last, I declined to withdraw from settlement any portion of the odd sections of land lying in the second indemnity limits within the Territories, upon the ground that there did not seem to be any present necessity for such action in order to protect the company in its rights to lieu lands.

In this state of the case, while so many lands within indemnity limits

remain unoccupied and unappropriated, I ought not to construe the orders of withdrawal already made, unless sound rules of construction leave me no alternative, with such strictness and severity as to take valuable improvements from settlers who have acted in good faith, and give them to the company.

The records of your office and of this Department show that many tracts, covered by entries at the time of withdrawals, and subsequently canceled, are occupied by settlers who have made or purchased valuable improvements under the belief that such entries excepted the tracts from the withdrawals.

The Baughman decision (supra) made by my predecessor in 1881 fully justifies this belief and the action of the settlers in going upon and claiming such lands.

The delay of the company in locating and constructing its road may have been unavoidable, but if by reason of such delay the adjustment of its land grant has been deferred, and the indemnity lands to some extent overflowed by the tide of emigration, resulting in entries and improvements upon lands which otherwise might have been secured to the grantee, the consequences should fall upon the company, and not upon settlers.

It is urged by the company that the decision in Ryan v. Central Pacific Railroad (99 U. S., 382) controls the case at bar in favor of the company.

The tract involved in that case was within indemnity limits, and at the date of the grant was within the boundaries of the Mexican (Diaz) grant. This grant was declared invalid by the Supreme Court March 3, 1873. The decision in that case does not show when the withdrawal of the land was made within the indemnity limits; but I find upon an examination of the records of your office that such withdrawal was made October 19, 1867, and notice thereof reached the local office November 25 following. Notwithstanding the fact that this withdrawal had been made and was existing at the time the Mexican claim was rejected, the court declared that "at the time of the selection (October 30, 1874) the premises were public land," that "it was as much public land as any other part of the national domain." No other claim had intervened at the time of such selection. Ryan made his application to enter long after the selection. The company's right to the laud was put upon the ground that it was not longer sub judice; that it was disembarrassed of the Mexican claim; was public land within indemnity limits, and therefore subject to the right of selection. Although the withdrawal remained in terms, does it not follow by necessary impli cation that Ryan's claim to the tract would have been confirmed if his entry had been made prior to the selection by the company? It must follow from the single fact that the land "was as much public land as any other part of the national domain."

In the Ryan case the case of Newhall v. Sanger is distinguished and