In the absence of further legislation, the land department is without authority to patent to the Northern Pacific Railroad Company, or its successor in interest, any lands within the land districts named in the act of February 26, 1895, prior to the examination and classification of said lands as non-mineral, provided for in said act.

Acting Secretary Ryan to the Commissioner of the General Land (S. V. P.) Office, July 29, 1902. (F. W. C.)

Your office letter of the 6th ultimo calls attention to the fact that the classification made by the mineral land commissioners for the Coeur d'Alene land district, during the month of May, 1899, which classification was approved by the Department February 20, 1900, included certain lands outside of the Coeur d'Alene land district and within the Lewiston land district, Idaho. These lands, it appears, were classified by the commissioners as non-mineral lands, but as the act of February 26, 1895 (28 Stat., 683), limited the classification of lands in the State of Idaho to the lands within the Coeur d'Alene land. district, you recommend that said classification be not regarded and that the railroad company in listing or selecting these lands be required to give notice as to such of the lands as are within six miles of a mining claim, in the manner provided by the regulations of July 9, 1894 (19 L. D., 21). In this recommendation the Department concurs, and you will, in disposing of any listings or selections, proceed as indicated.

In said letter attention is also called to the fact that certain portions of sections 23 and 27, T. 43 N., R. 4 W., in the Coeur d'Alene land district, have not, so far, been classified as provided for in the act of 1895. The Northern Pacific Railroad Company has, however, made selection of these lands and you recommend that it be permitted to give notice and proceed as required by the regulations of July 9, 1894, supra. The act of 1895 providing for the classification of the lands within the limits of the Northern Pacific land grant, in certain land districts, provides:

SEC. 7. That no patent or other evidence of title shall be issued or delivered to said Northern Pacific Railroad Company for any land in said land districts until such land shall have been examined and classified as nonmineral, as provided for in this act, and such patent or other evidence of title shall only issue then to such land, if any, in said land districts as said company may be, by law and compliance therewith and by the said classification, entitled to, and any patent, certificate, or record of selection, or other evidence of title or right to possession of any land in said land districts, issued, entered, or delivered to said Northern Pacific Railroad Company in violation of the provisions of this act shall be void: Provided, That nothing contained in this act shall be taken or construed as recognizing or confirming any grant of land or right to any land in the said Northern Pacific Railroad Company, or as waiving or in any wise affecting any right on the part of the United States against the said Northern Pacific Railroad Company to claim a forfeiture of any land grant heretofore made to said company.

Appropriations have been made from time to time for payment of expenses incident to the classification of lands as provided for in the act of 1895, the last appropriation being found in the act of June 6, 1900 (31 Stat., 588, 615), which act appropriated $25,000 "to complete the examination and classification of certain lands within the land grant and indemnity land grant limits of the Northern Pacific Railroad Company in the Helena and Missoula land districts in the State of Montana and in the Coeur d'Alene land district in the State of Idaho, with special reference to the mineral or non-mineral character of such lands, as authorized by the act of February twenty-six, eighteen hundred and ninety-five (Twenty-eight Statutes, six hundred and eighty-three)," This appropriation has been exhausted but the classification of all of the lands in said land districts has not been completed.

It may be that no further appropriation will be made for the completion of the classification of the lands in these districts, but in view of the plain provisions of section seven of the act of 1895, before quoted, in the absence of further legislation, this Department is without authority to patent to the Northern Pacific Railroad Company, or its successor in interest, any of the land within the land districts named in said act, prior to the examination and classification of said lands as nonmineral, as provided for in said act.

The recommendation of your office with regard to these lands is not therefore approved.

RAILROAD GRANT-SELECTION-SECTION 4, ACT OF MARCH 2, 1899.

NORTHERN PACIFIC RY. Co. . PYLE.

The fact that a tract of unsurveyed land included in a list of selections filed by the Northern Pacific Railway Company under the provisions of section four of the act of March 2, 1899, was properly described in said list according to the description thereof in the official survey subsequently approved, does not relieve the company from filing a second list, within three months after the plat of survey of the township in which the land is situated is filed in the local land office, describing such tract according to such survey, as required by said section; and failure to file such second list within the required time subjects the land to intervening claims.

Acting Secretary Ryan to the Commissioner of the General Land
(S. V. P.)
(F. W. C.)

Office, July 31, 1902.

The Northern Pacific Railway Company has appealed from your office decision of March 20, last, holding for cancellation its selection of the SE. of NE. 4, Sec. 28, T. 37 N., R. 2 E., Lewiston land district, Idaho, with a view to permitting Harrie E. Pyle to include the same, by way of amendment, within his homestead entry.

The Northern Pacific Railway Company made selection of the tract in question September 14, 1899, while the land was yet unsurveyed, under the provisions of the act of March 2, 1899 (30 Stat., 993), in lieu of an equal quantity of land relinquished within the Mt. Ranier National Park and Pacific forest reserve.

The plat of survey of the portion of the township in question was officially filed April 25, 1900, and on that day Harrie E. Pyle tendered his homestead application, including in addition to the tract here in question, the SW. of NW. 4, the NW. 4 of SW. 4, of Sec. 27, of said township. Said application was rejected as to the tract here in question for conflict with the prior selection by the Northern Pacific Railway Company, from which rejection Pyle duly appealed to your office.

It appears that while said appeal was pending, to wit, on July 5, 1900, the local officers permitted Pyle to make homestead entry for the SW. of NW. and NW. of SW. 4 of Sec. 27. His appeal from the action of the local officers rejecting his application was considered by your office July 25, 1901, when a hearing was ordered to determine the status of the tract in question at the date of the selection by the railway company.

From the evidence adduced at said hearing it appears that the tract in question was occupied by one Frank R. Sanders at and prior to the date of the selection by the railway company, and that he made improvements thereon of some value. Sanders continued to occupy and improve the tract until December 7, 1899, when he sold his possessory claim and improvements to Pyle, who immediately took possession and, with his family, has continued to reside upon and improve this tract since about January 1, 1900.

From Pyle's testimony given at said hearing, it appears that he made his homestead entry with the understanding that thereby he would not lose any right to the tract here in question in case he was successful in his contest with the railway company.

Your office decision holds that the tract in question was subject to selection by the railway company September 14, 1899, because the settlement claim then being asserted for this land was subsequently abandoned, the present applicant not succeeding to the rights of the prior settler by the purchase of his improvements, but said selection is held for cancellation for the reason that it was not until August 29, 1901, more than a year after the filing of the plat of survey of this township, that the railway company filed a new list of selections conformable to the requirements of the act of March 2, 1899, under which its selection of the tract in question was made, Pyle's claim intervening. In its appeal the company urges error in failing to give full recognition to its selection of September 14, 1899, as the same correctly described the land according to the township plat of the survey sub

sequently filed. From the decision of the local officers it seems that the land in contest had been actually surveyed in the field prior to the selection by the railway company on September 14, 1899. As the survey had not been approved, however, and the plat officially filed, it was, to all intents and purposes, unsurveyed land, and the selection of September 14, 1899, must be treated as a selection of unsurveyed land. Section 4 of the act of March 2, 1899, supra, under which the selection in question was made, provides that

In case the tract so selected shall at the time of selection be unsurveyed, the list filed by the company at the local land office shall describe such tract in such manner as to designate the same with a reasonable degree of certainty; and within the period of three months after the lands including such tract shall have been surveyed and the plats thereof filed by [in] said local land office, a new selection list shall be filed by said company, describing such tract according to such survey; and in case such tract, as originally selected and described in the list filed in the local land office, shall not precisely conform with the lines of the official survey, the said company shall be permitted to describe such tract anew, so as to secure such conformity.

It will thus be seen that where selection is made of unsurveyed land, the company is required to file a new selection list, conformable to the lines of the official survey, within three months after the plat of survey of the township is filed in the local land office, and the fact that the list filed before survey described the lands according to the description of the official survey subsequently approved, does not relieve the company from the duty of filing a second list as required by the statute. It is not until the filing of this new or second list that a selection originally made of unsurveyed land becomes a completed selection, and a failure on the part of the company to file such new or second list within the required time subjects the land to an intervening claim.

The record in this case shows that a large portion of the improvements made by both Sanders and Pyle are upon the forty-acre tract here in question, and the homestead claim of Pyle, regularly asserted, although initiated after the preliminary selection made by the railway company, should be recognized, the company having failed, within three months after the filing of the township plat in the local land office, to file a new list of selections conformable to the plat of survey. Since your office decision Pyle has tendered a formal application to amend his existing homestead entry to include the tract here in question, which application is herewith returned, with the remaining papers in the case, and upon completion of said amendment, within a time to be fixed by your office, the selection by the company will be canceled. Your office decision is accordingly affirmed.

BOUNTY LAND WARRANT-ASSIGNMENT-ACT OF AUGUST 30, 1890.

JOHN W. CLARKSON.

The general provision in the act of August 30, 1890, limiting the amount of land to which title may be acquired by any one person, under the public land laws, to three hundred and twenty acres, has no application to the location of military bounty land warrants held by assignment under the special provisions of section 2414 of the Revised Statutes.

Acting Secretary Ryan to the Commissioner of the General Land (S. V. P.) Office, July 31, 1902. (A. S. T.)

On June 23, 1900, John W. Clarkson located lot 5, the NE. of Sec. 6, T. 29 N., R. 4 W., Ironton land district, Missouri, containing eighty acres, with military bounty land warrant No. 48232, issued on September 3, 1858, to Thar-cah-mi-qui, warrior, for eighty acres, under the act of March 3, 1855, and regularly assigned to said Clarkson.

Your office, on February 19, 1902, held said location for cancellation on the ground that it appears that Clarkson had previously acquired three hundred and twenty acres of agricultural land by cash entry, and that under the act of August 30, 1890 (26 Stat., 391), he could not acquire more than three hundred and twenty acres of such lands, and as the eighty acres located with said land warrant would, together with the three hundred and twenty acres already entered, amount to more than he was allowed to enter under said act, said location must be canceled.

Clarkson has appealed to this Department, his contention being that inasmuch as military bounty land warrants are by law assignable, and inasmuch as the assignee of such warrant is by law entitled to all the rights of the original holder thereof, therefore, he has the right to purchase an unlimited number of such warrants and to locate public lands with the same.

There is no statute limiting the number of such warrants that may be purchased by one person, but the act of August 30, 1890, limits the number of acres of public lands that may be acquired by one person who enters upon the same after its passage, under any or all of the publie land laws.

The act of August 30, 1890, supra, provides that:

No person who shall, after the passage of this act, enter upon any of the public lands with a view to occupation, entry, or settlement under any of the land laws, shall be permitted to acquire title to more than three hundred and twenty acres, in the aggregate, under all of said laws, but this limitation shall not operate to curtail the right of any person who has heretofore made entry or settlement on the public lands, or whose occupation, entry, or settlement is validated by this act.

This legislation is general in its character, and should not be construed to deprive persons of rights under special legislation, and it will be seen that the holder of this warrant, under section 2414,