No. 430.

ABBOTT v. CENTRAL PACIFIC RAILROAD COMPANY.

The application of a settler to file on railroad lands when settlement was subsequent to withdrawal should be rejected in the absence of evidence showing the pendency of a legal claim at the date of withdrawal. But when an affidavit is filed alleging the existence of such adverse claim, an investigation should be had to ascertain the facts, as the existence of such conflicting claim at the date of definite location would exclude the tract from the grant, notwithstanding the prior settler had made no filing on the land.

DEPARTMENT OF THE INTERIOR,

Washington, D. C., March 31, 1873. SIR-I have examined the case of Seneca J. Abbott v. The Central Pacific Railroad Company, involving title to S. 1, N. E. 4, S. 1, N. W. 4, Sec. 25, Tp. 11 N., R 3 E., Marysville, California, on appeal from your decision of July 23, 1872.

The tract in controversy is within the limits of the grants to the Western (now Central) Pacific Railroad Company and the California and Oregon Railroad Company, and was included in the withdrawal of September 13, 1862, and January, 1865, for the former, and that of February 25, 1867, for the latter road. The township plat was filed in the local office in 1870.

On the 20th day of December, 1871, Abbott appeared at the local office and offered to file on the land as a pre-emptor, alleging settlement thereon in July, 1868. Accompanying the application was his affidavit, in which he alleged that he was a qualified pre-emptor; that he settled on the tract in controversy in July, 1868; that he had since that date continuously resided thereon with his family; that he had cultivated and improved the tract; that at the time of his settlement he purchased the improvements of one James Smith; that said Smith settled on the tract in 1858; that he (Smith) was a qualified pre-emptor; that said Smith continuously resided on the tract, cultivating and improving it, from the date of his settlement in 1858 to the time of the sale of his improvements to him (Abbott) in July, 1868; and that to the best of his (Abbott's) information, knowledge, and belief he, (Smith,) in good faith, up to the time of such sale, claimed the tracts under the preemption laws of the United States.

The local officers rejected the application of Abbott, on the ground that the tract was included in the withdrawal limits of the California and Oregon Railroad.

On appeal, you reject the application of Abbott in favor of the Central Pacific Company, on the grounds stated in your letter of July 23, 1872. Abbott has appealed to the Department.

I agree with you that the application of Abbott to file as a pre-emptor should, so long as the land retains its present status, be denied, inasmuch as he does not allege or claim settlement prior to the withdrawal; but I am clearly of the opinion that the tract should not be awarded to the company without an examination into the matters of fact alleged in the affidavit of Abbott. If the allegations therein made are true, it is clear that at the date of definite location of the line of the road there was in existence a valid pre-emption claim to the tract in controversy, which would of course take it from the grant to the company.

Under these circumstances, and in view of the fact that Abbott

appears to have a valuable interest in the tract in controversy, which he can in no other way assert or defend, I am of opinion that an investigation should be ordered before the local officers of the facts alleged, and that he should be given an opportunity to show that at the date of the definite location of the line of the road the tract in controversy was covered by a valid pre-emption claim.

I modify your decision in the manner above specified, and return herewith the papers transmitted with your letter of February 6, 1873. Very respectfully, B. R. COWEN, Acting Secretary. HON. WILLIS DRUMMOND, Commissioner General Land-Office.

No. 431.

SCOTT v. WESTERN PACIFIC R. R. CO.

Unsurveyed lands in California were not subject to pre-emption settlement after the expiration of the act of March 1, 1854, (10 Stats., 268,) and prior to the act of May 30, 1862. (12 Stats., 409.) Pre-emption filings cannot be received by the local land-office prior to the filing of the township plat in their office, and such illegal filings, in the face of an adverse claim, cannot be perfected by proof and payment.

DEPARTMENT OF THE INTERIOR,

Washington, D. C., June 11, 1873. SIR-I have considered the case of Martin C. Scott v. The Western Pacific R. R. Co., involving the right to W. of N. W. 4, Section 33, T. 5 N., R. 7 E., Stockton district, California, appealed by the latter from your adverse decision of the 18th November last.

The land is unoffered, township plat filed May 25, 1859. The tract was duly selected by the R. R. Co Sept. 23, 1869, and patented to them under their grant April 9, 1870.

Scott, March 10, 1859, filed D. S. on this and other land, alleging settlement Dec. 10, 1858. Dec. 9, 1871, at his request, the R. R. Co. was cited to appear on Jan. 2, 1872, to show cause why he should not be allowed to complete his claim. At the latter date his proofs were received, and he was allowed to make payment for the land with A. C. Scrip.

Under date of Nov. 18, 1872, you notified the R. R. Co., through its attorney, Henry Beard, Esq., of Scott's claim to the land, and requested him (Beard) to cause relinquishment by the Company of the land claimed, and informed him that "in case of failure or refusal to file such relinquishment here (in your office) within sixty days from this date, steps will be taken to issue a second patent for said tract, reciting the erroneous patenting of the tract to your Company."

Mr. Beard regarded this as an interlocutory order, and not a final decision in the case, neglected to take appeal therefrom, although intending to contest Scott's right to the land. You accordingly, after the expiration of the sixty days, issued patent to Scott, and forwarded it to the land officers for delivery.

Mr. Beard having appealed from this action, the local officers were directed by your telegram of February 12 last, to hold and not deliver the patent, and it now remains in their hands subject to your orders. Two insuperable objections appear to Scott's claim:

1st. His settlement was made Dec. 10, 1858, upon unsurveyed land, after the expiration of the act of March 1, 1854, (10 Stat., 268,) and be

fore the passage of the act of May 30, 1862, (12 Stat., 409,) a period within which such settlements were inadmissible and without authority of law.

2d. At the date of his alleged filing, the township plat had not been filed, and he was therefore without authority to make and the Register without authority to receive his filing.

His claim having no legal inception, the local officers erred in receiving his proof and payments until these defects were healed.

This might have perhaps been done in the absence of a valid adverse claim. But the right of the road having intervened and been carried to patent, it was impossible, and his case must wholly fail.

I reverse your decision, and direct the recall and cancellation of the patent to Scott. The papers in the case, transmitted with your letter of April 8 last, are here with returned.

Very respectfully,

C. DELANO, Secretary.

HON. WILLIS DRUMMOND, Commissioner General Land-Office.

IV. VERSUS MISCELLANEOUS ADVERSE CLAIMS. No. 432.

SARGENTS, TREADWAYS ET AL. V. WESTERN PACIFIC R. R. CO. The decisions of the heads of departments should not be disturbed except in extraordinary cases. To ascertain the meaning of the word "reserved," resort may be had to the several Congressional acts in which the same term occurs.

Land embraced within an unadjusted private grant is "reserved" within the meaning of that word.

DEPARTMENT OF THE INTERIOR,

Washington, D. C., March 16, 1871. SIR-I return the papers in the case of the Sargents, Treadways et al. v. The Western Pacific Railroad Company, which accompanied the letter from your office of the 2d of December last.

The attorneys of the Company applied for a reconsideration of the decision of my immediate predecessor in this case, on the ground of an alleged error of law.

I submitted to the Attorney General for his opinion, whether in view of the decisions of the Supreme Court, and of his predecessors in previous similar cases, I was authorized to grant the application, and also whether there was any error of law in his decision. The Attorney General, on the 7th instant, rendered an opinion answering both questions in the negative.

I enclose said opinion (and when you have taken a copy you will return it), and direct that the decision in favor of the Sargents, Treadways, et al., be carried into effect.

Very respectfully, your obedient servant,

W. T. OTTO, Acting Secretary. HON. WILLIS DRUMMOND, Commissioner of General Land-Office.

DEPARTMENT OF JUSTICE,

March 7, 1871.

HON. C. DELANO, Secretary of the Interior. SIR: On the 7th of July last, Mr. Cox, then Secretary of the Interior, decided the case of R. C. Sargent and others, and S. V. Treadway and others v. The Western Pacific Railroad Company, in which an appeal to him had been taken from the Commissioner of the General Land-Office. He affirmed the decision of the Commissioner in favor of the Sargents and Treadways, and recognized those persons as the lawful purchasers of certain lands in California under the act of July 23, 1866. (14 U. S. Stat., 220.)

The Railroad Company has asked you to reconsider the case, and to reverse this decision of your predecessor.

The application rests solely upon the ground that his decision was erroneous in law. Your letter of the 6th of January last requests my advice upon the question, whether you are authorized to reconsider the case, and also upon the question whether there is any error of law in Mr. Cox's decision.

It has not yet been settled how the decisions of the head of a department have the conclusive force of the judgments of courts. But the better opinion certainly is that such decisions should not be disturbed except in extraordinary cases. The United States v. The Bank of the Metropolis, 15 Peters' R. 401; Opinion of Mr. Wirt, 2 Opinions, 9; of Mr. Taney, 2 Opinions, 464; of Mr. Nelson, 4 Opins., 341; of Mr. Toucey, 5 Opins., 29; of Mr. Johnson, 5 Opins., 123-4; of Mr. Black, 9 Opins., 101, 301-2, 387; of Mr. Stanbery, 12 Opins., 358; of Mr. Hoar (not yet published), dated April 26, 1867, in relation to the case of Admiral Goldsborough, and another unpublished opinion of May 5, 1870, in relation to the claim of George Chorpening. Against this current of authority is to be set the opinion of Attorney General Bates, 10 Opins., pp. 61-62. His dissent is, however, somewhat weakened in force by his later opinion in the case of Anson Dart, 10 Opins., 255, in which he seems substantially to concur with the other opinions which I have cited.

In the case in hand, the parties in interest were heard before Secretary Cox. His decision was the result of careful and thorough consideration. It is not alleged that any material fact in the case can now be laid before you which was not before him. There was no haste, no surprise, no inadvertence. I am, therefore, of opinion that his decision should be considered as the final adjudication of your Department. But you also ask whether his decision was correct.

The claim of the Railroad Company rests upon the donation in the act of July 1, 1862, sec. 3 (12 U. S. Stat., 492), " of five alternate sections per mile on each side of said railroad, on the line thereof, and within the limits of ten miles on each side of said road, not sold, reserved, or otherwise disposed of by the United States, and to which a pre-emption or homestead claim may not have attached, at the time the line of said road is definitely fixed."

This section is amended by the act of July 2, 1864, sec. 4. (13 U. S. Stat., 358.) The lands in question are a part of what is known as the "Moquelemas" grant. This grant was confirmed by a decree of the District Court in California, in April, 1857. In March, 1860, the Supreme Court on appeal reversed this decision and remanded the case for further evidence. The District Court, upon a new hearing in June

1862, rejected the claim, and this decision was affirmed by the Supreme Court on appeal, February 13, 1865.

The Sargents and Treadways contend that the pendency of this claim brings the land in question within the meaning of the term "reserved," in section 3 of the act of July 1, 1862, and this excepts it from the donation to the company. On the other hand the company contends that the pendency of such a claim, ultimately ascertained by the decision of the Supreme Court to have been invalid, does not bring the land within the meaning of that term.

To ascertain the meaning of Congress in the use of this word "reserved," we may resort to other legislation in which the same term occurs. An act was passed March 3, 1851, to ascertain and settle the private land claims in the State of California, in which the mode of proceeding to settle such claims is prescribed in full. (9 U. S. Stat., 631.) It was under this act that the above proceedings in relation to the Moquelemas grant were had. In an act to extend pre-emption rights to certain lands therein mentioned, passed March 3, 1853, (10 U. S. Stat., 244,) this language is found: "That any settler who has settled, or may hereafter settle, on lands heretofore reserved on account of claims under French, Spanish or other grants, which have been or shall be hereafter declared by the Supreme Court of the United States to be invalid, shall be entitled to all the rights of pre-emption granted by this act, and the act of fourth of September, 1841, entitled, An act to appropriate the proceeds of the public lands and to grant pre-emption rights,' after the lands shall have been released from reservation, in the same manner as if no reservation existed.

In this act Congress treats lands in the condition of the "Moquelemas" grant as lands reserved. Here, then, we have a legislative definition of this word as used in the act of July 1, 1862. The land covered by the "Moquelemas" grant was held back from survey on account of a claim under a Spanish grant which has been declared by the Supreme Court of the United States to be invalid, and such land in the act of March 3, 1853, is described as reserved. A word should be taken in the same sense when used in different statutes upon the same subject, unless there is something in the context to denote a different sense.

The case of Walcott v. Des Moines Company, (5 Wall., 681,) cited by Secretary Cox, seems to me to be an authority in support of his decision.

The substance of that case is this, that in a grant of lands to certain railroads, an exception of lands heretofore reserved to the United States by an act of Congress, or in any other manner by competent authority, for the purpose of aiding in any objects of internal improvement or for any purpose whatsoever, was applicable to lands which had been supposed to pass under a previous grant, but which were afterwards determined by adjudication not to have so passed.

I am unable to find a distinction between the principle of that decision of the Supreme Court and the principle upon which Secretary Cox has proceeded in his decision. If, therefore, I were called upon to decide the question as an original one, I should come to the conclusion which he has reached.

Very respectfully, your obedient servant,

A. T. AKERMAN, Attorney General.