veying such even-numbered sections for the use and benefit of the Missouri, Kansas and Texas Railway Company. Thereafter a suit was brought in the name of the United States to cancel and set aside said patents, which case is reported in 141 U. S., 358, 370, 371, where, in referring to these lands, it was said by the court:

Now, it is clear that the eren-numbered sections, within the place limits of the Leavenworth road, were reserved by the act of 1863, for purposes distinctly declared by Congress, and which might be wholly defeated if the Missouri-Kansas company were permitted to take them as indemnity lands under the act of 1866. The requirement in the second section of the act of 1863, that the "reserved sections" which "remain to the United States," within ten miles on each side of the Leavenworth road, "shall not be sold for less than double minimum price of the public lands when sold," nor be subject to sale at private entry until they had been offered at public sale to the highest bidder, at or above the increased minimum price; the privilege given to actual bona fide settlers, under the preemption and homestead laws, to purchase those lands at the increased minimum price, after due proof of settlement, improvement, cultivation and occupancy; and the right accorded to settlers on such sections under the homestead laws, improving, occupying and cultivating the same, to have patents for not exceeding eighty acres each, are inconsistent with the theory that the even-numbered sections, so remaining to the United States, within the place limits of the Leavenworth road could be taken as indemnity lands for a railroad corporation.

As the natural result of the construction of the road aided would be an increase in the market value of the reserved sections remaining to the United States, within the place limits of the Leavenworth road, those sections were not left to be disposed of under the general laws relating to the public domain. But, in order that the government might get the benefit of such increased value, and thereby reimburse itself to some extent for the lands granted-the title to which vested in the State or the company upon the definite location of the line of the road, and, by relation, as of the date of the grant-the act of 1863 made special provisions in reference to those reserved sections, and thereby, and for the accomplishment of particular purposes expressly declared, segregated them from the body of the public lands of the United States. Being thus devoted to specified objects, they were reserved to the United States, and could not be selected by the State either under the act of 1863 or under that of 1866 for other and different objects. They could not be selected as indemnity lands under the act of 1863, because at the date of its passage they were reserved for the special purposes indicated in the second section of the act of 1863.

It follows that the Missouri, Kansas and Texas Railroad Company was not entitled, in virtue of the act of 1866, to have indemnity lands from the even-numbered sections within the place limits of the Leavenworth road.

The granting of lands in aid of the construction of railroads was discontinued about the year 1871, but since that time the increase in the building of railroads has been enormous, so that great portions of the public domain have been brought within closer communication with railroads than many of the lands in the place limits of the grants made in aid of the construction of railroads, some of which grants are eighty miles in width. Because of this fact said alternate sections have lost much of their early advantage of location, and since 1879 the legislation with regard to these alternate sections seems to have placed them on a footing with other unreserved public lands.

By the act of March 3, 1879 (20 Stat., 472), it was providedThat from and after the passage of this act, the even sections within the limits of any grant of public lands to any railroad company, or to any military road company, or to any State in aid of any railroad or military road shall be opened to settlers under the homestead laws to the extent of one hundred and sixty acres to each settler.

See also act of July 1, 1879 (21 Stat., 46).

By the third section of the act of June 15, 1880 (21 Stat., 237), it was provided

That the price of lands now subject to entry which were raised to two dollars and fifty cents per acre, and put in market prior to January, eighteen hundred and sixtyone, by reason of the grant of alternate sections for railroad purposes, is hereby reduced to one dollar and twenty-five cents per acre.

By the act of March 2, 1889 (25 Stat., 854) private sales of public lands were discontinued except in the State of Missouri, and by the act of March 3, 1891 (26 Stat., 1095) public sales of public lands were discontinued, save in exceptional instances not here material. The pre-emption and timber-culture laws were also repealed by that act. Originally the controlling purpose in disposing of the public lands was to obtain public revenue, and the several statutory provisions increasing or doubling in price the alternate reserved or retained sections within the limits of railroad and other similar land grants were enacted in furtherance of that purpose, but beginning with the enactment of the homestead law of May 20, 1862, supra, this purpose has been gradually and largely departed from, as shown by the legislation here recited, and there is no longer any statute which prescribes a method of disposing of such alternate reserved or retained sections which is different from that applicable to other lands, and there is no statute which sets apart or appropriates these sections for any specific or exclusive purpose. The second section of the act of March 3, 1891, supra, amended the act providing for the sale of desert lands, which amendment has been construed by this Department as reducing in price to $1.25 per acre all desert lands within the limits of any railroad land grant.

Section 2455 of the Revised Statutes, as amended February 26, 1895 (28 Stat., 687) authorizes the Commissioner of the General Land Office in his discretion to order into market and sell at public auction isolated or disconnected tracts or parcels of the public domain containing less than one quarter-section, and this legislation is held by this Department to be as applicable to lands in alternate retained sections as to lands located elsewhere. Charles Tyler (26 L. D., 699).

The surveyed public lands valuable chiefly for timber or stone, whether within or without the limits of a railroad land grant, are subject to purchase at $2.50 per acre under the acts of June 3, 1878 (20 Stat., 89), and August 4, 1892 (27 Stat., 348), but such lands are not

by reason of this "reserved" or excluded from the operation of other public land laws.

It appears therefore that the right of an individual to appropriate these alternate sections is now in no manner different from his right to appropriate other public lands. Upon what principle then can recent legislation like that of March 2, 1899, be held to treat these alternate retained sections as "reserved," in the sense of withheld from disposition under the general land laws, and thus excepted from selection under that act. The increase in price was the only cause for the reservation of these alternate sections, which, it will be seen, has been practically removed by later legislation.

In filing its relinquishment under that act the Northern Pacific Railway Company surrendered its title to granted or place lands only, supposedly of equal value to the alternate retained sections. This act was in the nature of an exchange act, and after most careful consideration of the entire matter, I am of opinion that the even-numbered sections alternate to those granted in aid of the construction of the Northern Pacific railroad, should not be considered as "reserved" within the meaning of that term, as employed in the said act of 1899. The lists heretofore approved are herewith returned that patents may issue thereon.

NORTHERN PACIFIC RY. Co. v. SMITH ET AL.

Motion for review of departmental decision of December 5, 1901, 31 L. D., 151, denied by Secretary Hitchcock January 17, 1902.

PRIVATE CLAIM-SURVEY-LOS LUCEROS GRANT.

THE LAND COMPANY OF NEW MEXICO, LIMITED, ET AL. Congress having confirmed and directed the survey of a private land grant, it is not within the province of the land department to question its integrity or validity. If there is doubt as to the translation of the original title papers relating to a confirmed private land grant, the land department must be guided by the translation which governed the action of the surveyor-general and of Congress in the proceedings leading up to the confirmation of the grant.

Where conflicting private land grants have been confirmed by Congress, each without any reference to the other, it is the duty of the land department to follow the confirmations and survey and patent each grant, leaving to the judicial tribunals the determination of all matters of priority and superiority of right to the area in conflict.

Where the confirmatory act provides that the survey of a private land grant "shall conform to and be connected with the public surveys of the United States, ... so far as the same can be done, consistently with land marks and boundaries specified" in the grant, and, on account of the absence of public surveys in the vicinity of the land, it appears to be impracticable to make the survey conform to and be connected with the public surveys, the same will not be required. The cost of the survey of a private land claim shall be paid by the claimant, after the completion of the survey, but prior to the issuance of patent.

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) January 17, 1902. (J. H. F.)

This case is before the Department on appeal by The Land Company of New Mexico, Limited, its trustees and shareholders, from your office decision of May 3, 1900, whereby your prior office decision of May 29, 1894, directing a resurvey of private land claim No. 47, known as the Los Luceros, or Antoine Leroux, grant in Taos county, New Mexico, was revoked and the previous survey of said grant disapproved and rejected, it being held in the later decision that a survey of said grant was impossible by reason of uncertainty and vagueness in the description of its boundaries.

A brief history of the grant in question, together with a statement of the various actions taken by your office relative thereto, is essential to a proper understanding of the questions involved in the appeal. House Ex. Doc. No. 112, 37th Cong., 2d Sess., pp. 22-29, sets forth the history of the grant.

In 1742 Pedor Vijil de Santillana, on behalf of himself and his two nephews, Juan Bautista Vijil and Christoval Vijil, who joined with him therein, petitioned Don Gaspar Domingo de Mendoza, governor and captain-general of the Kingdom of New Mexico, for the grant of a certain tract of land called Los Luceros, in the jurisdiction of the pueblo of Taos, said tract being described in said petition as follows:

Red river being the boundary towards the north, on the east the lands of the pueblo and the mountain, on the west the bed of the river, and on the south lands of Sebastian Martinez.

August 9, 1742, Governor Mendoza issued the following decree making a grant in response to said petition:

In the town of Santa Fe, on the ninth day of the month of August, one thousand seven hundred and forty-two, I, Lieutenant Colonel Don Gaspar Domingo de Mendoza, governor and captain-general of this kingdom of New Mexico, in virtue of this petition, should and did order the senior justice of the jurisdiction of the pueblo of San Geronimo de los Taos to give him the possession by him therein asked for in the name of the King, our sovereign (God preserve him!) upon the conditions and terms required in the royal grants, and in particular that portion which refers to not working injury to third parties, requiring sufficient proof thereof, and shall be in the following manner: He shall erect his house or habitation two leagues distant, little more or less, from the pueblo of Taos, taking for the boundary on the north to the Arroyo Hondo, and two leagues in latitude shall be given him in the direction of the Del Norte river and towards the mountain to its summit. And with this understanding the possession will be given him as aforesaid, for himself, his children, and successors. I have so provided, ordered, and signed, with my attending witnesses, acting by appointment on account of the known absence of a royal or public notary, there being none in all this kingdom, and on this paper, there being no stamped paper in these parts.

DON GASPAR DOMINGO DE MENDOZA.

Note. That the pasturing and watering places remain common.
Witness: MANUEL SANZ DE GARUIZU.

JUAN FELIPE DE RIVERA.

August 12, 1742, juridical possession was given to the petitioners, the certificate of the officer who gave juridical possession containing the following:

I proceeded to give the possession granted by said governor to the above, wherefore I summoned the natives of said pueblo of Taos, who were the governor, casique, officers, and others of authority, and having made to them the measurement from the cemetery of the church of their pueblo and then given them one hundred varas besides, they stated that they were satisfied and that no injury would result to them in any manner whatsoever. I also caused the grant to Sebastian Martinez to be produced and stated that no injury would result to his lands by the grant made to the petitioners. Therefore, descending from my horse, with the three witnesses, I took each of the petitioners personally by the hand and walked with them over the tract and gave royal possession in the name of his Majesty.

May 21, 1857, in pursuance of the act of July 22, 1854 (10 Stat., 308), Antoine Leroux, on behalf of the legal representatives of the original grantees, then deceased, filed in the office of the United States surveyor-general for New Mexico the original title papers, accompanied by an application praying for the confirmation of said grant. This application sets forth that the original grantees became possessed of a piece of land by virtue of a grant made by the governor of New Mexico, under the government of Spain, on the 12th day of August, A. D. 1742

as set forth in the original deed of grant herewith presented to which reference is hereby made for full proof that said grant was made as aforesaid as described in said deed of grant in the petition, decree and judicial possession, compared and reconciled one with the other; the said piece of land is described and bounded as follows, to wit: that their house or habitation should be built two leagues, more or less, from the pueblo of Taos, should be bounded on the north by the Arroyo Jondo (Hondo), on the west by a line running in a northerly and southerly direction, two leagues west of the house or habitation aforesaid or four leagues west of a line over one hundred varas west of the cemetery of the church of said pueblo and running parallel from north to south with the line running in the same direction on the west of said cemetery; on the east by the west line of said pueblo as above described and by the summit of the mountains on either side of the extent of said pueblo line and on the south by lands of Sebastian Martin.

It was further stated in said application that said Antoine Leroux, on behalf of the legal representatives aforesaid, claimed a perfect title to said lands by virtue of the original deed of grant aforesaid, and that

They can not show the quantity of land claimed, except as set forth in said grant, as contained in the above known metes and bounds, nor can they furnish an accurate plat of the same as no survey has ever been made.

In his report of October 5, 1861 (Private Land Claims, New Mexico, Vol. 2, p. 943), the surveyor-general considered the claim thus presented and recommended that the grant be confirmed, and such report having subsequently been laid before Congress, said grant, with others,