the assumption that the land was in reservation and not subject to entry at the date of the several applications, except that of Crowley. It turns out that the Department was mistaken as to this fact, and this is deemed sufficient reason for the reconsideration of the former departmental decisions in this case. The departmental decision of May 21, 1894, which reversed your office decision of September 14, 1892, rested solely upon the supposed fact that the land was in reservation at the time all of the applications to enter were made, except that of Crowley, and for that reason the doctrine in the case of Smith v. Malone was invoked. There was, therefore, a mistake of a material fact in said decision, which mistake has been followed in subsequent departmental action in the case, but which should now be corrected. Under this view of the case, the facts disclosed by the record as to the acts of settlement performed by the several applicants become important. In reference to the acts of settlement, the local officers found as follows: The condition of the land at the time Margaret Ritchie established settlement thereon was wholly unimproved and uncultivated, that there were no marks upon any of the corners indicating that any person claims this land; it was free from improvements of any kind; that she had no notice of any prior claim of any party, and that she followed up her settlement with residence and improvements is undisputed.

Your office made the following finding from the record:

The preponderance of the proof is that Crowley is a single man; that he went on the land on the morning of November 2, after twelve, cut brush and started a house, cut down some trees and built a house two logs high; remained there eight hours; he has since built a house and cleared some brush; he went on the land again December 1, stayed three days and built his house on the 8th; he never lived in the house; it was built of logs, pole roof covered with boughs and earth; no floor, no furniture; the house was not finished at date of hearing. House worth $25. He saw Mrs. Ritchie's house when he went on the land to build his house. I find that John Provost made his settlement and improvements on the NE. of the section, and I do not find sufficient evidence to show any settlement or improvements on the NW. 1, the land in controversy, to give notice of any intention of claiming the same. I also find from the evidence that McCoy made his settlement and improvements on the NE. and not on the quarter-section involved, and that he made no such improvements on the NW. ‡ as to give notice of any intention of claiming the

same.

As to the claims of Provost, McCoy and White, whilst their applications were simultaneous with Mrs. Ritchie's, their settlements and improvements having been made on other quarter-sections than the one in dispute and having given no legal notice of claim to any part of the NW. 1, they can claim nothing by reason of their settlement on other quarters.

The facts found by the local officers and by your office are in accord with the record. In departmental decision of March 7, 1896, it was held that Mrs. Ritchie could take no benefit from her acts of settlement and occupancy performed prior to the hour of opening on Novem ber 2, 1891, which holding was error, since the tract was subject to settlement from September 29, 1890. It appears, therefore, that the finding of the local officers and your office should have been affirmed

instead of reversed. Departmental decisions of May 21, 1894, and March 7, 1896, are revoked, in so far as they deny to Margaret Ritchie the right to make entry and perfect her claim to the land in dispute, and your office decision of September 14, 1892, awarding the land to her, is affirmed.

AURORA LODE v. BULGER HILL AND NUGGET GULCH PLACER.

Motion for review of departmental decision of July 13, 1896, 23 L. D., 95, denied by Secretary Francis, October 3, 1896.

SCHOOL LANDS-ACT OF APRIL 28, 1870.

MILLER v. STATE OF NEBRASKA.

By section 2, act of April 28, 1870, extending the jurisdiction of the State of Nebraska over the territory added thereto by the provisions of said act, Congress conferred upon said State all the rights incident to the original enabling act, and it therefore follows that the reserved school sections, embraced within such added territory, passed to said State by such transfer of jurisdiction, though the statute does not in terms make an express grant thereof to the State.

Secretary Francis to the Commissioner of the General Land Office, October (W. A. L.) 3, 1896.

(A. B. P.)

It appears from the record in this case that on March 15, 1895, James A. Miller applied to make homestead entry of lots 3, 4, 6 and 7, Sec. 36, T. 89, R. 48, O'Neill, Nebraska.

The local officers rejected his application for the reason that the land is part of a section belonging to the State of Nebraska for the support of common schools. On appeal to your office the action below was affirmed. Miller again appeals.

The land was originally within the Territory of Dakota, but now lies. in the State of Nebraska, south of the Missouri River.

By the fourteenth section of the act of March 2, 1861 (12 Stat., 239), organizing the Territory of Dakota, it was provided:

That when the land in said Territory shall be surveyed, under the direction of the government of the United States, preparatory to bringing the same into market, sections numbered sixteen and thirty-six in each township in said Territory shall be, and the same are hereby, reserved for the purpose of being applied to schools in the States hereafter to be erected out of the same.

The State of Nebraska was formed under the act of April 19, 1864 (13 Stat., 47), whereby the middle of the channel of the Missouri River was established as the eastern, and in part the northern boundary lines thereof. As the river then ran, the land in question was left to the north, and in the Territory of Dakota. Subsequently, however, the channel of the river changed completely at this point and the land in question fell to the south thereof.

By the seventh section of the Nebraska enabling act, there was granted to the State for the support of common schools, sections sixteen and thirty-six of every township therein, but the land in question was not within the then prescribed limits of the State.

Subsequent to the change in the channel of the river, however, the Congress, by act of April 28, 1870 (16 Stat., 93), appears to have recognized the change, and in view thereof, provided that upon Nebraska's giving her consent thereto in the manner prescribed, which was done, the center of the main channel of the Missouri River, as it then existed, should be the boundary line between the State and the Territory of Dakota, at certain stated points, which placed the land in controversy within the limits of the State of Nebraska.

By the second section of that act it was provided:

shall

That the respective jurisdictions of said State and Territory extend to and over all of the territory, within their limits, according to the line herein designated, to all intents and purposes as fully and completely as if no change had taken place in the channel of said Missouri river. And the Secretary of the Interior is hereby authorized and required to cause to be made all necessary surveys and meanderings, and to order the transfer of all plats, papers, and documents which may be necessary in the premises.

The substance of appellant's contention is that inasmuch as the lands affected by said change in the channel of the river were thus transferred from the Territory of Dakota to the State of Nebraska after the passage of the enabling act under which said State was formed, there never has been a grant to the State, for school purposes, of sections sixteen and thirty-six of the townships embracing said lands.

It does not appear to me that this contention could, in any event, avail the appellant, for the reason that if said sections sixteen and thirty-six do not belong to the State of Nebraska for school purposes, they are still in a state of reservation under the act organizing the Territory of Dakota, and therefore could not be entered under the public land laws.

The reservation in the Dakota territorial act, of sections sixteen an thirty-six of every township therein, was for the purpose of applying the same to schools in States thereafter to be erected out of said Territory.

In view of the change in the channel of the Missouri River, and of the subsequent legislation by Congress relative thereto, as stated, it is clear that the State of Nebraska was in part erected out of the lands affected by said change and legislation. While not within the limits prescribed by the Nebraska enabling act of 1864, they were brought within the boundaries of the State as extended by the act of 1870, and thus became a part and parcel of the lands of that State.

The remaining question is, whether the State of Nebraska is entitled to sections sixteen and thirty-six for school purposes. We have seen that by the act of April 28, 1870, the jurisdiction of the State was extended to and over the newly acquired territory, to all intents and

purposes as fully and completely as if no change in the channel of the Missouri River had ever taken place. By that act it was the intention of Congress, in my judgment, to place the lands within the newly defined boundary limits of the State of Nebraska, the same as though they had originally fallen, and subject to all the provisions, conditions, and limitations relative to the lands which did fall, within the boundary limits as prescribed by the act under which the State was formed. In other words, it was the purpose of the act to place the lands within the jurisdiction of the State of Nebraska, subject to all the conditions and restrictions imposed, aud with full right in the State to all the privileges granted, by the original enabling act.

If the main channel of the Missouri River had always been where it was at the date of the passage of the act of 1870, and is now, then the said lands would have fallen within the original jurisdictional limits of the State of Nebraska, and would have been in all respects subject to the operation of the act under which the State was formed; and sections sixteen and thirty-six of every township thereof would have passed to the State by that act. It was in that position exactly that Congress intended to place the lands, in my judgment, when by the second section of the act of 1870 it extended the jurisdiction of the State of Nebraska to and over the same, "as fully and completely as if no change had taken place in the channel of said Missouri River." And although that act is without words of express grant of sections sixteen and thirty-six to the State of Nebraska for school purposes, yet the intention of Congress obviously was to transfer said sections (and the other lands embraced by the act) to said State, the same, and with like effect, as though they had originally been a part of said State.

It can hardly be presumed that Congress intended to continue the reservation of sections sixteen and thirty-six, under the Dakota territorial act, after the lands had been thus transferred to the State of Nebraska, without any purpose for such continued reservation, specified or otherwise.

I am of the opinion, therefore, that the land here in question belongs to the State of Nebraska for school purposes, and the decision appealed from is accordingly affirmed.

CHILDS v. FLOYD.

Motion for review of departmental decision of April 6, 1896, 22 L. D., 442, denied by Secretary Francis, October 3, 1896.

RAILROAD GRANT-INDEMNITY SELECTIONS-ADVERSE CLAIM.

GAMBLE v. NORTHERN PACIFIC R. R. Co.

Indemnity selections of the Northern Pacific resting on alleged losses east of Superior City, regular and legal under the existing construction of the grant at the time when made, should be protected under the changed construction of the grant, with due opportunity to assign new bases, as against intervening adverse claims.

Secretary Francis to the Commissioner of the General Land Office, October (W. A. L.) 3, 1896. (F. W. C.)

With your office letter of May 20, 1896, was forwarded an application, filed in behalf of E. R. Gamble, for a writ of certiorari, in the case of Gamble v. Northern Pacific Railroad Company, involving the SW. # of Sec. 31, T. 147 N., R. 49 W., Fargo land district, North Dakota.

The tract is within the indemnity limits of the grant for said company and was included in the company's selection list No. 6, filed March 12, 1883.

Said list was not accompanied by a list of losses as bases for the selections made, but an amended list was filed October 12, 1887. This list contained losses, but were in bulk, not tract for tract, with the selected lands.

On February 23, 1892, further amendment was made by arranging the losses tract for tract with the selections. The losses assigned were, however, in Wisconsin and east of Superior.

On November 13, 1895 (21 L. D., 412), this Department held that the grant for the Northern Pacific Railroad Company did not extend east of Superior, Wisconsin.

It was further held in said opinion, that:

I further learn upon inquiry at your office that the lands east of Superior City were made the basis for the selection of a large quantity of lands from the indemnity belt of the company's grant in North Dakota. These selections having been made some while ago, many, if not all, of the lands selected have, perhaps, been sold by the company.

The previous action of this Department giving color to the company's right to a grant east of Superior City, and the application of the rule that the indemnity lands should be selected nearest to those lost, were the probable causes for the specification of these lands as a basis for the selections referred to.

In view thereof, I have to direct that the company be allowed sixty days from notice of this decision within which to specify a new basis for any of its indemnity selections avoided by this decision, and that during that period no contests against such selections, where the charge is that the basis was made of lands east of Superior City, or application to enter under the settlement laws, will be received.

Acting under this holding the company, on November 25, 1895, filed a further amendment to said list No. 6, substituting losses in Montana. Gamble's claim rests upon an application tendered on March 20, 1895, and rejected for conflict with the company's selection, from which action. he appealed. This appeal was dismissed by your office because the