"shall be forwarded to the Secretary [of the Interior] for his approval before being executed by the governor."

The said act of May 4, 1894, provides that all school lands in said Territory

may be leased under such laws and regulations as may be hereafter prescribed by the legislature of said Territory; but until such legislative action the governor, secretary of the Territory, and superintendent of public instruction shall constitute a board for the leasing of said lands under the rules and regulations heretofore prescribed by the Secretary of the Interior, for the respective purposes for which the said reservations were made, except that it shall not be necessary to submit said leases to the Secretary of the Interior for his approval.

It would seem that this last-named act deprives the land department of the government of any further jurisdiction in the matter of the leasing of these lands. If it is not necessary to submit these leases when made for the approval of the Secretary of the Interior, it is not apparent in what way he can exercise a supervisory control over the matter. Whatever may have been the purpose of the act of May 4, 1894, its legal effect is, until such time as the legislature of the Territory may prescribe laws and regulations for the leasing of these lands, to cast upon the governor, secretary and superintendent of public instruction, as a board, the authority and duty of deciding all questions in relation thereto which, under the said act of March 3, 1891, and said regulations, devolved upon the Secretary of the Interior. It follows that whatever action the board may determine upon in this matter, the assent of this Department is not necessary to give validity thereto.

Your office will forward to the proper officer of the Territory a copy of this communication.

REPAYMENT_RAILROAD GRANT-INDEMNITY WITHDRAWAL,

HENRY S. BRIDGE.

The indemnity withdrawal made March 22, 1867, on account of the grant of July 27, 1866, for the Southern Pacific Railroad Company, was in violation of law and without effect, and did not operate to reserve the lands covered thereby from entry; hence a homestead entry of lands while included in the withdrawal was not, for that reason, an entry erroneously allowed that could not be confirmed, and repayment of the fees and commissions paid by the entryman is not authorized.

Acting Secretary Ryan to the Commissioner of the General Land (W. V. D.) Office, March 21, 1902.

(C. J. G.) December 10, 1901, your office submitted to the Department, with favorable recommendation, the application of Henry S. Bridge for repayment of the fee and commissions paid by him on homestead entry for the SE. of Sec. 25, T. 24 S., R. 17 E., Visalia, California, land

district.

December 28, 1901, the application was approved, without reference to the law division, and referred back to your office for settlement. It was subsequently submitted by your office to the Auditor for the Interior Department to be certified for payment.

February 3, 1902, the Auditor, by letter of that date, returned the claim here for reconsideration with the statement that its allowance does not appear to be authorized by the act of June 16, 1880 (21 Stat., 287). This letter was referred to your office for report. Such report dated February 11, 1902, has been received, in which your office adheres to its former recommendation in the premises.

The land in question is in an odd section within the indemnity limits of the grant made by the act of July 27, 1866 (14 Stat., 292), for the Southern Pacific Railroad Company, and was included in the withdrawal made March 22, 1867, for the benefit of said company. This indemnity withdrawal was revoked by order of August 15, 1887, at the same time other indemnity withdrawals were revoked (6 L. D., 84, 93). Prior to such revocation, to wit, on January 8, 1886, Bridge made his said homestead entry, and November 12, 1886, John Wyruck filed affidavit of contest alleging abandonment. The entry was finally canceled upon this contest March 10, 1888, the entryman making default at the hearing. No appeal was taken and Wyruck was allowed to enter the land.

It appears that the claim for repayment was at first denied by your office on the ground that, while admitting that the entry was erroneously allowed, yet inasmuch as the indemnity withdrawal was subsequently revoked, every obstacle to the confirmation of said entry was thereby removed, and the same might have been confirmed if the entryman had complied with the law. Upon further consideration on motion for review, and conformably to the rule announced in the case of Barbour. Wilson et al. (on review, 28 L. D., 61, 70), namely:

In the administration of the public land laws it is uniformly and wisely held that an entry of land held in reservation or for other reasons not subject to entry, made and maintained in good faith under color or claim of right will, if the land has since become subject to that class or character of entry, be permitted to remain intact as having attached when the land became subject to entry, if there be no adverse claim

your office revoked its former decision and approved the claim for repayment, on the ground that by the intervention of the adverse right of Wyruck prior to the order of August 15, 1887, it became impossible for the entry of Bridge to have "attached when the land became subject to entry." And in your office report of February 11, 1902, it is further insisted that taking the facts as they actually existed there never was a time when Bridge's entry was in a condition to have been confirmed. It is pointed out by the Auditor for the Interior Department, among other things, that the entry was canceled for

abandonment long after the land was restored to entry; that if Wyruck had any adverse right it was acquired after the allowance of Bridge's entry and while the land was reserved for railroad purposes; and that if the entry was erroneously allowed because the land was so reserved, then it could not be lawfully contested and an adverse right acquired while the land was in that status.

Without specifically considering the matters presented by your office decision and report, and the letter of the Auditor for the Interior Department, it is sufficient to say that it has been repeatedly held by the Department that the indemnity withdrawal made on account of the grant of July 27, 1866, for the Southern Pacific Railroad Company was in violation of law and without effect. Such withdrawal therefore conferred no right upon the company, nor did it operate to reserve the land from entry. Bridge's homestead entry was, therefore, properly and not erroneously allowed and might have been confirmed if he had complied with the requirements of the law under which it was made. See cases of Southern Pacific R. R. Co. v. Kanawyer (23 L.. D., 500); State of California v. Southern Pacific R. R. Co. (27 L. D., 542); and Hewitt . Schultz (180 U. S., 139). In this view the application for repayment should have been, and hereby is, denied.

Your office will duly notify the Auditor for the Interior Department of this decision.

RAILROAD GRANT-INDEMNITY SELECTION-ERRONEOUS DESCRIPTION.

SOUTHERN PACIFIC R. R. Co. v. BRUNS.

The statement in a patent as to acreage of the land conveyed must yield to the terms of description therein employed.

In case of the erroneous patenting to a railroad company, as indemnity, of a tract of land for the selection of which no previous application had been made, the company will be afforded an opportunity to specify a basis therefor and the patent allowed to stand.

Where a fractional section in California has been described differently under the original survey of April 27, 1869, and the Carpenter survey of April 6, 1894, and selection thereof is made by a railroad company, as indemnity, under the description given in the original survey, such selection should be considered as a selection of the tract as described under the later survey, and patent should issue accordingly.

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) March 26, 1902. (F. W. C.)

The land involved in this case was by the original survey of T. 30 N., R. 21 E., M. D. M., Visalia land district, California, made April 27, 1869, returned as a portion of the N. of Sec. 12, and was, by the Carpenter survey of said township, approved April 6, 1894, returned

as fractional section 1 containing 206.47 acres divided as follows: Lots 1, 2, 3 and 4, S. SE. and S. SW. 4.

,

According to the survey of April 27, 1869, section 1 was returned as fractional containing 641.40 acres, and on February 17, 1892, the Southern Pacific Railroad Company, under its grant made by act of June 27, 1866 (14 Stat., 292), made indemnity selection of said frac tional section 1 containing 641.40 acres.

The Carpenter survey of 1894 preserves the exact location of all disposals under the 1869 survey of this township without regard to the section lines as established under the Carpenter survey, designating such disposals as lots numbered respectively from 37 to 117 inclusive. Fractional section 1 under the survey of 1869 containing 641.40 acres, is returned by the Carpenter survey as lot 37, and includes land which would fall in sections 1 and 2, according to the lines of that survey, if made as original surveys are usually made.

January 4, 1896, nearly two years after the approval of the Carpenter survey, this Department approved a clear list of selections submitted by your office on account of the grant of July 27, 1866, to the Southern Pacific Railroad Company, which list includes, according to its own terms, all of fractional section 1, T. 30 S., R. 21 E., containing 641.40 acres, and patent issued upon said approved list January 25, 1896, the description in the patent following that contained in the approved list, being "all of fractional section one containing six hundred and forty-one and forty hundredths acres." This patent made no reference to either of the surveys of this township and contains many lands in other townships.

On December 30, 1899, Carl A. Bruns filed in the local office at Visalia, under the act of June 4, 1897 (30 Stat., 36), his application to select lots 1, 2, 3 and 4, S. SE. and S. SW. of Sec. 1, T. 30 N., R. 21 E., M. D. M., in lieu of certain described lands situate within the Sierra forest reserve, which application and accompanying proofs were forwarded with register's letter of January 17, 1900.

On January 10, 1900, the Southern Pacific Railroad Company filed in the local office an application to select the S. of SW. and S. of SE. of said section 1, in lieu of certain described land situate within the primary limits of its grant, which application was rejected by the local officers for conflict with the prior application by Bruns, from which action the railroad company appealed.

Your office decision of November 22, 1900, considered the applica tions by Bruns and the Southern Pacific Railroad Company and rejected both applications upon the ground that the patent to the railroad company issued on January 25, 1896, included the land embraced in said applications. Thereafter, to wit, on December 15, 1900, you recalled the decision of November 22, 1900, permitted the selection by Bruns to stand and affirmed the action of the local officers in rejecting 6855-Vol. 31-01-18

the selection presented by the railroad company on January 10, 1900, holding, in effect, that the railroad patent of January 25, 1896, did not embrace the land covered by said applications, because it was land added to section 1 by the survey of 1894. From said decision the Southern Pacific Railroad Company has appealed to this Department. It becomes first necessary to determine to what lands title was passed to the railroad company in section 1, T. 30 N., R. 21 E., M. D. M., by the patent of January 25, 1896.

Said patent conveyed title to "all of fractional section one," within said township.

This language is clear and unambiguous and the only land meeting the description "all of fractional section one," according to plat of survey of 1894 which was the then accepted plat in use governing the disposal of public lands in this township, is the land now in question.

As before shown, the land returned as fractional section one by the survey of 1869, was returned by the survey of 1894 as lot 37, and includes land within the section lines of what would be both sections one and two, according to the survey of 1894, if made as original sur veys are usually made. The statement of acreage in the patent must yield to the other and more definite terms of description there employed.

It results that a tract was patented to the railroad company for the selection of which no previous application had been made and that the tract selected by the company in 1892 has not been patented. Consequently, a basis for the patented tract has not been assigned. While the patenting of a tract not previously selected was irregular the effect of the patent is unimpaired, and you are directed to call upon the company to specify from the lands lost within the place limits of its grant a basis for the land so irregularly patented.

The selection made February 17, 1892, of all of fractional section one containing 641.40 acres, should have been considered, after the Carpenter survey, as a selection of lot 37 of township 30 N., R. 21 E., M. D. M., and said selection will be so treated and passed to patent unless, upon consideration by your office, a sufficient objection appears thereto.

The Department concurs in the views expressed in your office decision of November 22, 1900, and therefore reverses your office decision of December 15, 1900, appealed from.

APPLICATION TO MAKE ENTRY-FINAL PROOF.

CIRCULAR.

Registers and Receivers, United States Land Offices.

GENTLEMEN: Your attention is called to the provisions of an act of Congress entitled: "An act to amend section twenty-two hundred and ninety-four of the Revised Statutes of the United States,” approved March 11, 1902 (Public No. 39), a copy of which is hereto attached.