status of the land at the time of the filing of the amended location. It but remains, therefore, to determine the effect of the occupancy of this land by Howard at the date of the filing of the amended map of location.

Howard never asserted a claim to this land by any proceeding before the land department, and there is nothing in the record to show that his occupation prior to and at the time of the filing of the map of amended location was with any intent to acquire title from the United States. It is true that he could not have made entry or filing for this land, because it had not been surveyed; but assuming that he intended to claim it under the settlement laws, that he had continued to occupy and claim it until the filing of the township plat (which was subsequently to the filing of the map of amended location), and that he might have been permitted to prosecute his claim to a successful termination notwithstanding the filing of such map of location, his subsequent sale of his improvements and the abandonment of the land would not have passed such right to the purchaser thereof.

In the case of Tarpey v. Madsen (178 U. S., 215) one Olney had, after the filing of the map of location by the Central Pacific Railroad Company opposite the land there in question, filed a pre-emption declaratory statement, in which settlement was alleged subsequently to the filing of the map of location. Madsen, who had succeeded to the possession of the tract long after the definite location of the line of road, sought to show that in point of fact Olney had occupied, improved and claimed the land prior to the filing of the map of location; and in considering this branch of the case it was said by the court (page 220):

Assume that such declaration was subject to correction by him [Olney], that he could thereafter have corrected the mistake (if it was a mistake) and shown that he occupied the premises prior to October 20, 1868, with an intent to enter them as a homestead or pre-emption claim, he never did make the correction, and there is nothing in the record to show that his occupation prior to April 23, 1869, was with any intent to acquire title from the United States.

And in this respect we must notice the oft-repeated declaration of this court, that "the law deals tenderly with one who, in good faith, goes upon the public lands with a view of making a home thereon." Ard v. Brandon, 156 U. S., 537, 543; Northern Pacific Railroad v. Amacker, 175 U. S., 564, 567. With this declaration, in all its fulness, we heartily concur, and have no desire to limit it in any respect, and if Olney, the original entryman, was pressing his claims every intendment should be in his favor in order to perfect the title which he was seeking to acquire. But when the original entryman, either because he does not care to perfect his claim to the land or because he is conscious that it is invalid, abandons it, and a score of years thereafter some third party comes in and attempts to dispossess the railroad company (grantee of Congress) of its title-apparently perfect and unquestioned during these many years he does not come in the attitude of an equitable appellant to the consideration of the court.

In said case the court proceeds to a consideration of the rights of occupants upon the public lands, and the numerous decisions of the

court construing the excepting clauses from railroad land grants, and, in summing up the whole (page 228), says:

We are of opinion that a proper interpretation of the acts of Congress making railroad grants like the one in question requires that the relative rights of the company and an individual entryman, must be determined, not by the act of the company in itself fixing definitely the line of its road, or by the mere occupancy of the individual, but by record evidence, on the one part the filing of the map in the office of the Secretary of the Interior, and, on the other, the declaration or entry in the local land office. In this way matters resting on oral testimony are eliminated, a certainty and definiteness is given to the rights of each, the grant becomes fixed and definite; and while, as repeatedly held, the railroad company may not question the validity or propriety of the entryman's claim of record, its rights ought not to be defeated long years after its title had apparently fixed, by fugitive and uncertain testimony of occupation; for if that be the rule, as admitted by counsel for defendant in error on the argument, the time will never come at which it can be certain that the railroad company has acquired an indefeasible title to any tract.

In view of said decision it is the opinion of this Department that the mere occupancy of the land by Howard was not sufficient to defeat the operation of the railroad grant, and that the tract in question passed to the railroad company under its grant, upon the filing of the map of amended location.

Your office decision is accordingly reversed and the homestead application by Croy will stand rejected.

SCHOOL LANDS-LIEU SELECTION—ACTS OF MAY 2, 1890, AND FEBRUARY 28, 1891.

THOMAS J. CREEL.

The act of May 2, 1890, reserving for school purposes sections sixteen and thirtysix in each township in the Territory of Oklahoma, did not make a grant to said Territory, either of sections in place or of the lieu selections therein authorized, but made a reservation for a future grant, which reservation included both seetions in place and lieu selections, where such selections were made in accordance with law and are of the character of land appropriated for that purpose. In case of a lieu selection of land not subject thereto, such land was not reserved or granted by any act of Congress, and such selection, although it may have been approved and certified by the Secretary of the Interior, is still subject to his jurisdiction and control.

Lands within said Territory included in a bona fide settlement claim, initiated before survey, must be treated as "appropriated" within the meaning of the act of February 28, 1891, and therefore not subject to lieu selection by the Territory, for school purposes, within the period of three months after the filing of the township plat accorded to the settler within which to place his settlement claim of record.

Secretary Hitchcock to the Commissioner of the General Land Offer, (S. V. P.) September 11, 1900.

(G. B. G.)

The land in controversy in this case is the NE. 4 of the NW. 4 of Sec. 13, T. 1 N., R. 15 E., Woodward land district, Oklahoma, and

the case is before the Department upon the appeal of Thomas J. Creel from your office decision of October 17, 1895, approving the action of the local officers in rejecting his homestead application, presented August 29, 1895, for this tract, together with the balance of the NW. 4 of said section. This action of the local officers and of your office was had because of the school indemnity selection of the tract in controversy by the Territory of Oklahoma, December 14, 1891, and the approval thereof by the Secretary of the Interior, August 8, 1894.

By section 18 of the act of May 2, 1890 (26 Stat., 81), sections numbered sixteen and thirty-six in each township in the Territory of Oklahoma were reserved for the purpose of being applied to public schools in the State or States thereafter to be erected out of the same, and in cases where sections sixteen and thirty-six, or either of them, are occupied by actual settlers prior to survey, the county commissioners of the counties in which such sections are so occupied are authorized to locate other lands to an equal amount, within their respective counties, in lieu of the lands so occupied. This act did not designate the character of lands which might be selected in lieu of the sections lost in place, but the act of February 28, 1891 (26 Stat., 796), amending sections 2275 and 2276 of the Revised Statutes, which was a general act applying to all of the public-land States and Territories, provides that the lands thereby appropriated and granted in lieu of sections sixteen and thirty-six, where settlements with a view to preemption or homestead have been made before the survey of the lands in the field, "shall be selected from any unappropriated, surveyed public lands, not mineral in character, within the State or Territory where such losses or deficiencies of school sections occur." The act of May 2, 1890, supra, did not make a grant to the Territory of Oklahoma, either of sections in place or of the lieu selections therein authorized. It did, however, make a reservation for a future grant, and this reservation included not only the sections in place, but also lieu selections, where such selections are made in accordance with law and are of the character of land appropriated for that purpose. But if a lieu selection is of land not subject to selection, the land was not reserved or granted by any act of Congress, and such selection, although it may have been approved and certified by the Secretary of the Interior, is still subject to his jurisdiction and control. Whether the land in controversy was subject to the selection of December 14, 1891, must be determined, as has been seen, by the provisions of the act of February 28, 1891, supra, and as to this the question presented by the record is, whether the land was appropriated at the date of selection.

It appears from the corroborated, sworn statement of Creel, accompanying his appeal, that he made homestead entry of a tract of land in Kansas in the year 1886, which he commuted to cash in 1887; that he removed to the land in controversy, which is in the public land strip,

and settled thereon September 27, 1890, believing that he was entitled to enter the same under the homestead law, notwithstanding his previous commuted entry, and that he has since that time continuously resided upon and improved the tract with a bona fide intention of acquiring title to the same under the homestead laws; that after a number of entries by parties similarly situated had been allowed by the local officers, he heard that your office ruled that the provisions permitting a second entry to those who had commuted an entry elsewhere did not apply to lands within the public-land strip, and that thereupon, January 22, 1894, he addressed a letter of inquiry to your office as to whether he would be permitted to make such entry, and received a reply in the negative; that an appeal having been taken from a similar ruling of your office in another case, he continued to reside upon and cultivate the tract, awaiting the determination of said appeal, and that. after the departmental decision in the case of William T. Dick (19 L. D., 540), he presented his application to make homestead entry, which was rejected, as hereinbefore stated.

In the case of William T. Dick, supra, it was held that a person is not disqualified from making an entry of land in the public-land strip because of the fact that he had previously commuted a homestead entry to cash elsewhere, and this ruling has since been followed.

It appearing, therefore, that Creel was qualified to enter said land under the homestead law, he was a qualified settler, and his settlement claim was an appropriation of the land for the time allowed him by law to place that claim of record, within the meaning of the act of February 28, 1891. For the protection of settlement rights at date of survey, being the time when the reservation, or, in the case of a State, when the grant of lands in place becomes effective, indemnity is provided, and, although no limitation is made in the act of 1890 in providing for the selection of lieu lands, it must be clear that it was not intended to protect a settler on the section in place at the sacrifice of another settler's interest on the tract that might be selected in lieu thereof. Lands included within a bona fide settlement claim must be treated as "appropriated" within the meaning of that word as used in the act of 1891. At the date of Creel's settlement the land was unsurveyed. The township plat of survey was filed in the local office, October 10, 1891, and the law allowed him three months from that time, or until January 10, 1892, to place his claim of record. Before that time, and on December 14, 1891, the Territory of Oklahoma selected the tract. At the date of selection, therefore, the land was appropriated by Creel's settlement and the Territory took nothing by its selection, or by the subsequent approval thereof by the Depart

ment.

Inasmuch as the commissioners for the county in which this land is situated admit that the selection was a mistake and request that it be

canceled, it will not be necessary to order a hearing to establish the facts shown prima facie by the affidavit of Creel.

The decision appealed from is reversed, and the cause remanded, with directions to cancel the Territory's selection, and allow Creel's application.

RAILROAD GRANT-GENERAL ROUTE-DEFINITE LOCATION.

SOUTHERN PACIFIC R. R. Co.

The act of July 27, 1866, making a grant of lands to aid in the construction of the main line of the Southern Pacific railroad, provided for the filing of a map of general route and for withdrawal thereon, and also for the filing of a map of definite location, or its equivalent, which latter map fixes the limits of the grant, and upon the filing thereof rights under the grant are held to attach. The filing of the map of general route, and withdrawal thereon, do not prevent an appropriation of the land within said withdrawal, by the government, for Indian or other needful purposes, at any time prior to the filing of the map showing the line of definite location of the road opposite thereto.

Secretary Hitchcock to the Commissioner of the General Land Office, (S. V. P.) September 13, 1900. (F. W. C.)

The Southern Pacific Railroad Company has appealed from your office decision of June 15th last, wherein the listing by said company of the N. of Sec. 19, T. 5 S., R. 8 E., S. B. M., Los Angeles land district, California, as a portion of the land granted by the act of March 3, 1871 (16 Stat., 573), to aid in the construction of the Southern Pacific railroad (branch line), was canceled.

By the 23d section of the act of March 3, 1871, supra, Congress made a grant of land to the Southern Pacific Railroad Company, to aid in the construction of a railroad from

Tehachapa Pass, by way of Los Angeles, to the Texas Pacific railroad at or near the Colorado river, with the same rights, grants, and privileges, and subject to the same limitations, restrictions and conditions as were granted to said Southern Pacific Railroad Company of California, by the act of July twenty-seven, eighteen hundred and sixty-six.

Among the provisions of the act of July 27, 1866 (14 Stat., 292), are the following:

Sec. 3. That there be, and hereby is, granted to the Atlantic and Pacific Railroad Company. . . . ten alternate sections of land per mile on each side of said railroad whenever it passes through any State, and whenever, on the line thereof, the United States have full title, not reserved, sold, granted, or otherwise appropriated, and free from pre-emption or other claims or rights, at the time the line of said road is designated by a plat thereof, filed in the office of the commissioner of the general land office.

Sec. 6. And be it further enacted, That the President of the United States shall cause the lands to be surveyed for forty miles in width on both sides of the entire line of said road after the general route shall be fixed, and as fast as may be required by the construction of said railroad; and the odd sections of land hereby granted shall not