was transmitted to your office by Secretary Delano February 21, same year, "for appropriate action," and subsequently a withdrawal of lands based thereon was ordered.

The preliminary line presented by this map shows a great departure from the line of 1870. The point where the line in the last map enters the eastern boundary of the territory is about 108 miles north of that at which the former line entered. The lines westward from such eastern boundary, however, converged, so that at the Columbia River they are substantially the same.

The tracts in question lying not far east of that river are within the limits of and covered by both maps.

It is claimed by counsel for Parker that the preliminary line established by the map of 1872 was in legal effect an abandonment of the former line, and operated to release the lands from any right or claim which the company may have acquired by filing the map of 1870.

This case and those kindred to it relate to entries made after the first map of general route was filed, and before notice of the filing was in fact received at the local office. The persons who made these entries are innocent parties, having acted in entire good faith, and their entries were allowed by the local officers, who were alike ignorant of the fact that a map had been filed.

It is well settled that the filing of the map of general route under section G of the act in question operates as a legislative withdrawal of the lands within its limits; and if the general route as marked out upon the diagram of August 13, 1870, had been regarded and treated by the company as the real, permanent, and fixed general route of the road, it would probably not have been within the power of this Department to afford any relief to parties making entries before actual notice of the withdrawal.

The line of 1870, however, as respects the section of country in which the lands in controversy are located, was not in fact the general route of said road. It was at most a trial line; and a very large portion of the country included in it was not included in the general route of the road as finally fixed. The map of 1872 was substantially a new location of that part of the road. The act in question provides for but one line of general route and one of definite location. It is certainly a very grave question whether legislative withdrawal operates under any preliminary map other than the one which the company finally determines shall be the settled and fixed general route of the road. If legislative withdrawals operate upon preliminary lines not finally fixed as lines of general route, then we have in this instance a legislative withdrawal of a section of the country almost entirely different from that which was finally included in the lines of the general route.

And a further question is presented, whether lands withdrawn by legislative will can be restored to the public domain by executive action. While recognizing the fact that a legislative withdrawal takes effect

upon filing map of general route, this Department has exercised executive control in respect to territory included in preliminary maps other than the maps of general route as finally fixed. My predecessor, Secretary Schurz, in permitting an amended line of general route on the Northern Pacific road, limited the withdrawal in the following terms, viz:

The rights of settlers upon lands included within the limits of the withdrawal to be made under this amended route must be protected, if settlement and entries be made before the receipt of notice of withdrawal at local offices. (Land Office Report, 1879, p. 111.)

And it is the general practice, in permitting an amendment in the line of general route, to direct that the lands included in the first and not in the second map shall be restored to the public domain, and that the lands included in the new line be withdrawn from sale and settlement. Until the general route is finally determined and fixed, the lands included in the first preliminary map have, I think, been regarded and treated as subject to executive control as respects the withdrawal.

If it be held, as I have indicated, that when the general route is finally fixed the legislative withdrawal takes effect, and prior to that time the lands are within the control of the Executive Department, then the questions presented by this case are readily solved.

The character of the country was such that the company could not readily fix a final line of general route, and in several instances, as in the present, the first preliminary line was little more than an experimental or trial line. The company did not regard itself as bound by such first line, or at least did not wish to be so regarded by the Department, and might properly have considered it a hardship to have been held to the first location. This Department, recognizing the difficulty of fixing in the first instance a permanent line even of general route, has in this respect shown great liberality in every instance, I think, when requested, permitting a change and adjusting the withdrawal accordingly. Such trial lines, not having been held to be binding upon the company, ought not to be held to bind persons who in good faith made entries and settlements before notice of withdrawals under such lines was in fact received.

Since it has proved that the map of August 13, 1870, did not in fact fix and determine the general route of said road, and the general route as to that part of the country was not finally determined and fixed until the filing of the map of February, 1872, I am of the opinion that the withdrawal under the former map can not be held to take effect as to persons who in good faith were permitted to make entries, in other respects valid, upon the lands, until notice of the withdrawal was received at the local office.

The remaining question is between Parker and Hayes. Hayes applied March 15, 1879, to make pre-emption filing for tracts embraced in Parker's said entry; and May 29, 1880, he also applied to make timber

culture entry for part of tract embraced in Parker's entry, and part in the cash entry of one T. P. Denny, made November 1, 1870. These applications were rejected by the local officers because they were so embraced. I approve of this action of the local officers, and reverse your decision allowing Hayes's pre-emption filing. I also reverse your de cision holding Parker's cash entry for cancellation, because the tracts in the odd section were "reserved for railroad purposes," and because those in the even sections "were rated at $2.50 per acre."

TAYLOR ". SOUTHERN MINNESOTA RAILWAY EXTENSION COMPANY.

Mrs. Taylor had no valid claim to the land, for the reason that it had been withdrawn for the benefit of said company both at the time of the settlement made by her husband and of that made by herself.

The Department does not interfere with the settler; if he chooses to remain on the land he must do so with the knowledge that the Department cannot help him, and he is at the mercy of the railroad company should the company select the land under the grant.

Secretary Teller to Commissioner McFarland, November 5, 1883.

SIR: I have considered the matter of the location of military bounty land warrant No. 113,210, register and receiver No. 11,347, made June 19, 1875, by Valina Taylor on the N. of the SE. 4, and the E. of the SW. of Sec. 7, T. 109, R. 45, Tracy, Minn., on appeal from your de cision of June 25, 1881, holding said location for cancellation.

The land is within the 20-mile indemnity limits of the grant to the Southern Minnesota Railway Extension Company, the withdrawal for which became effective September 10, 1866.

William Taylor filed declaratory statement No. 21,977 for said land May 24, 1872, alleging settlement May 22, 1869.

June 19, 1875, Valina Taylor located the warrant aforesaid, basing her claim on declaratory statement No. 21,977, and at the same time submitted pre-emption proof.

Because of a discrepancy in the description of the land, new proof under order of your office was made April 30, 1881. From this proof it is shown that Mrs. Taylor was a qualified pre-emptor; that she had resided on the lands about twelve years, and had made improvements thereon. The proofs did not show that said William Taylor was dead, or that Valina Taylor was his heir or "one of his heirs." Since your decision, however, proof has been filed showing the death of said William Taylor and that Valina Taylor was his widow.

You hold, however, that Mrs. Taylor had no valid claim to the land, for the reason that it had been withdrawn for the benefit of said com

pany both at the time of the settlement made by her husband and of that made by herself.

I see no escape from this conclusion. Taylor settled upon the land before it was surveyed, and, as the proof indicates, undoubtedly settled upon an odd section by mistake. From the consequences of such mistake this Department cannot afford relief.

Counsel for the claimant requests that the filing be permitted to stand subject to the right of the company to select the lands, in case they are required to satisfy the grant.

I have had occasion before to express my disapproval of such a prac tice, a practice which if permitted would be productive of irreparable injury to settlers. Such a permission is an approval of settlement upon lands which this Department cannot convey to the settlers in case they are selected by the company. It encourages a belief that the lands will not be required to satisfy the grant. A quasi indorsement of such a belief and such a practice by this Department could but result in thousands of settlers being ultimately expelled from their settlements with the loss of valuable improvements.

To prevent such pernicious consequences I directed some time ago that instructions should be issued to all land offices, ordering the local officers to refuse all such applications, and pursuant to that direction you, with my approval, issued the circular of May 22 last.

The Department does not interfere with the settler. If he chooses to remain on the land, he must do so with the knowledge that the Department cannot help him, and that he is at the mercy of the railroad company should the company select the land under the grant.

For these reasons I must refuse the application now made by counsel in behalf of the claimant.

Under the facts in this case, I affirm your decision holding the loca tion for cancellation.

ACT OF APRIL 21, 1876-CONDITIONAL OCCUPANCY.

FOX v. THE SOUTHERN PACIFIC RAILROAD COMPANY.

The joint resolution of June 28, 1870, affords plaintiff no relief, as he was not an actual settler on the land at that date.

As there was no valid claim existing on the land at the date when it was withdrawn, and it has not been re-entered under decisions and rulings of the Land Deparment, he is not entitled to the benefits of the second section of the act of April 21, 1876. Permission for Fox to remain on the land with a view to making entry for the same, in the event that it should not be required in the final adjustment of the grant, refused.

Secretary Teller to Commissioner McFarland, November 12, 1883. SIR: I have considered the case of Edward T. Fox v. The Southern Pacific Railroad Company, iuvolving lots 5, 6, 11, and 12 of Sec. 17, T.

8 S., R. 8 E., M. D. M., California, on plaintiff's appeal from your decision of November 12, 1881, rejecting his application to make pre-emption filing for said land.

These lots are within the indemnity limits of the grant to the said company, and were withdrawn for the benefit of the same May 7, 1867. It is alleged by the plaintiff that in the summer of 1869 George A. Ester settled on this land and remained in occupation thereof until August 10, 1874, at which time he sold his possessory right to plaintiff, who has since that date resided on said land and cultivated the same continuously.

March 7, 1881, the township plat was filed, and May 19, 1881, Fox applied to file his declaratory statement for the land in question, but his application was rejected by the local office for the following reason: The records of this office show said land to be a portion of an odd section, and within the limits of withdrawal for the Southern Pacific Railroad Company.

The plaintiff's attorney alleges among other grounds of exception:

1. That the right of the company to said land did not attach until the passage of the joint resolution of June 28, 1870.

2. That plaintiff should be allowed to file his declaratory statement under the second section of the act of April 21, 1876.

The joint resolution of June 28, 1870 (16 Stat., 382), authorized the Southern Pacific Railroad Company to construct its road on the route indicated by the map filed in this Department January 3, 1867, “expressly saving and reserving all the rights of actual settlers."

It was held by this Department in the case of Tome v. Southern Pacific Railroad Company (Copp's Land Laws, 1882, 758), that although a grant of lands was made to the company by the act of July 27, 1866, the lands upon which it would operate were not identified until the date of the passage of the joint resolution, and that the rights of all persons who were at that date actual settlers were thereby saved. In the case of the Southern Pacific Railroad Company v. McCarthy (Copp's Land Owner, Vol. 9, p. 176), this Department also held that where the land is within the indemnity limits the right to indemnity is only a float, and attaches to no specific tract until actual selection, and, following the rule laid down in Tome's case, decided that an actual settler, after the withdrawal of the land and prior to the passage of the joint resolution, should be protected.

The case now under consideration does not, however, come within the provisions of said joint resolution, for Fox did not settle on the land until August 10, 1874, and he cannot avail himself of the rights ac quired by Ester's earlier settlement. Pre-emption rights are not the subject of sale or transfer, such disposition of the same being expressly inhibited by law. (Rev. Stat., section 2262.) See also Myers v. Croft (13 Wallace, 291), and Quinby v. Conlan (104 U. S., 420). The right