application to enter it should be allowed, and that McDowell's applica

tion should be rejected.

Your office decision is accordingly reversed.

RAILROAD RIGHT OF WAY-RESERVATION IN PATENT.

DUNLAP v. SHINGLE SPRINGS AND PLACERVILLE R. R. Co.

A railroad right of way under the act of March 3, 1875, is fully protected by the terms of the act as against subsequent adverse rights, and a reservation of such right of way, in final certificates and patents issued for lands traversed thereby, is therefore not necessary, and should not be inserted.

Secretary Smith to the Commissioner of the General Land Office, July (W. A. L.)

7, 1896.

(C. W. P.)

By your office letter of October 20, 1894, Elon Dunlap was allowed thirty days within which to show cause why the patent issuing on his cash entry, No. 4702, for the SW. of the SW. of the NE. and the W. of the NW. of the SE. † of Sec. 24, T. 10 N., R. 10 E., Sacramento land district, California, which was sold to him by the local officers of the district on April 28, 1894, under section 2455 of the Revised Statutes, should not contain a reservation of right of way for the Shingle Springs and Placerville Railroad.

Upon the showing made by said Dunlap, your office, on March 26, 1895, held that patent should issue to Dunlap, without reservation of right of way for said railroad, saying:

Since the date of office letter calling on Mr. Dunlap to show cause, the Honorable Secretary in the case of Mary G. Arnett decided that the language of section 4 of the act of 1875 "is not a direction to the Land Department to insert limitations and restrictions in the final certificate and patent, but a legislative declaration of the reservation of a right of way to such railroad companies as may have complied with the law." The effect of this decision in the Arnett case is to revoke the instructions of the circular as to making reservations in the certificate, and patent will therefore issue thereon without reservation.

On April 2, 1895, the company filed a motion for review of your office decision of March 26, 1895, and on July 3, 1895, your office revoked said decision and held that said entry was subject to the action required by the instructions at the bottom of page 6, circular of March 21, 1892, that is, that the notation, "subject to the right of way of the Shingle Springs and Placerville R. R. Co.," should be written across the face of the final certificate in red ink.

Dunlap appeals to the Department.

It is contended by Dunlap that your office decision of March 26, 1895, is correct, and that no reservation should be made in his final certificate and patent.

It appears that a map of the definite route of said company's road through the W. of the NW. of the SE. 1, was approved by the

Department on April 27, 1888, under the act of March 3, 1875 (18 Stat., 482), and that the company, on December 28, 1888, filed a map, showing that the road had been constructed on the approved right of way.

The question is, should the right of way clause be inserted in the final certificate of entry and patent for the land over which a right of way has been acquired by a railroad company, under the act of March 3, 1875, supra.

In the case of ex parte Mary G. Arnett, 20 L. D., 131, it is said:

The injustice to the patentee of placing such a limitation in the conveyance, is apparent when it is remembered that the patent is the strongest and best evidence of title, and the patentee would be thereby concluded in an action at law instituted against him by the railroad company for the possession of such right of way. The right of way clause should not then be inserted in the applicant's final certificate, unless it is necessary to protect whatever rights the railway company may have in the land by virtue of its grant.

Under the act of March 3, 1875 (supra), such protection does not appear to be necessary. The act itself affords ample protection to the company, if it has any rights which the courts may hereafter determine have not been forfeited. The language of section four of said act is, "and thereafter all such lands over which such right of way shall pass, shall be disposed of, subject to such right of way." These lands are then disposed of, subject to such right of way, by virtue of the statute.

This is not a direction to the Land Department to insert limitations and restrictions in the final certificate and patent, but a legislative declaration of the reservation of a right of way to such railroad companies as may have complied with the law. The insertion of the right of way clause would answer no purpose except to embarrass the settler, and leaving it out does not affect the rights of any railroad company under said act.

In this regard, the case at bar may be distinguished from the recent case of the Pensacola and Louisville R. R. Co. (19 L. D., 386). In that case, the granting act did not impose a penalty of forfeiture on the company for failure to perform its conditions, nor did it direct that the lands over which the right of way was granted should be disposed of, subject to such right of way.

In the absence of such statutory protection, and it not appearing that the rights of the company had been forfeited by legislative enactment, or judicial determination, it became the duty of the Land Department to insert the right of way clause in all patents issued for lands over which such right of way had been granted.

In the case of Florida Central and Peninsular R. R. Co. v. Heirs of Lewis Bell, deceased (22 L. D., 451), it is said:

In the case of ex parte Mary G. Arnett (20 L. D., 131), it was held that a claim reserving the right of way should not be inserted in final certificate of entry and patent for land over which a right of way has been granted under the act of March 3, 1875, where it appears that there has been a breach of the conditions imposed by said act, but no re-assertion of ownership by the government. This was put on the express ground that the fourth section of said act provided, that "all such lands over which such right of way shall pass shall be disposed of subject to such right of way," that therefore the rights of the railroad company (if it had any) were protected by statute, and the case of the Pensacola and Louisville railroad company (supra) was in this regard distinguished.

In the case at bar there is no question of forfeiture for failure of the conditions subsequent, and the public land laws under which these patents will issue do not in terms protect the company's rights. I am, therefore, of opinion that if the plaintiff company has a grant of right of way across said reservation on the line of its constructed road, and is not estopped from asserting that right by its own acts, the limitation asked for should be incorporated in the patents.

The latter case is not to be understood as overruling or modifying the decision of the Department in the Mary G. Arnett case.

In the case at bar, the land being subject to the right of way by virtue of the act of March 3, 1875, comes within the reason of the decision in the Arnett case, to wit, that the act itself affords ample protection to the company for its rights.

The decision of your office of July 3, 1895, is, therefore, reversed.

MINING CLAIM-ADVERSE CLAIM-PROTEST-APPEAL.

PARSONS ET AL. v. ELLIS.

A protest against a mineral application, filed after the period of publication, will not be considered by the Department on appeal, unless it is shown that the protestant has an interest in the ground involved, and that the law has not been complied with by the applicant.

Secretary Smith to the Commissioner of the General Land Office, July

It is shown by the record in this case that Charles W. Ellis by W. S. Morse, his attorney in fact, on September 27, 1894, filed application for patent for Pine Mountain lode mining claim, survey 1146, in Prescott, Arizona, land district. The first publication of notice was on October 3, and the last December 5, 1894. The sixty days period within which protest and adverse claim should be filed expired December 3, 1894.

E. D. Parsons and Anna D. Faulkner, by J. C. Herndon, attorney in fact, filed on December 5, 1894, their protest and adverse against the entry of Pine Mountain. The local officers "rejected the same as an adverse, for the reason that it was not filed within the sixty days period of publication of notice, but filed and allowed the same as a protest and set for hearing on December 29, 1894."

On December 6, 1894, applicant made application to purchase and tendered payment for the land. On December 10 following, a certifi cate of the clerk of the district court, dated December 8, was filed, wherein it is stated that no suit was pending in said court affecting the title to the Pine Mountain, prior to December 4, 1894.

It is alleged in the protest that the protestants are the owners and in possession of the Morning Star lode; that the same was located in 1882, and the law and mining regulations have been complied with in all respects by themselves and their grantors; their mining improve ments, consisting of shafts and tunnels are recited and valued at $3,800; "that the said Ellis desiring to wrong, defraud and injure protestants, shifted the monuments of the Pine Mountain lode so as to cover six and one-tenth acres of the Morning Star lode and in so shifting said monuments, he caused to be embraced within the boundaries

of his pretended Pine Mountain location" some of the improvements belonging to protestants; that Ellis knew these improvements belonged to protestants; that these improvements are noted on the plat of the Pine Mountain, but are designated as belonging to unknown claimants; that Morse was the only assistant of the deputy surveyor in making the survey, and on information and belief charges that he is interested in the Pine Mountain lode; that he is the attorney in fact of Ellis.

A hearing was had on the protest, and as a result the local officers recommended that Ellis' application to purchase be rejected.

The applicants appealed, and your office by letter of May 17, 1895, reversed their action, whereupon the protestants prosecute this appeal, assigning numerous grounds of error. It is not deemed necessary to quote these for the reason that there is but one material question involved in this controversy, and upon that the case may be determined. A motion to dismiss the appeal has been filed on the ground “that the protestants as such have no right of appeal, occupying the position of amicus curiae, merely, and not being parties in interest."

It will be observed that the allegations of the protest raise but a single issue, and that is the possessory right to the ground in controversy. This is a question, the determination of which Congress has lodged in the local courts. (Sec. 2325 and 2326 R. S.).

The Department will consider a protest against a mineral entry, after the period of publication has elapsed, where it is shown that the protestant has an interest in the ground in controversy, and that the law has not been complied with by the applicant. Both of these elements must be present. In the case at bar the protestants allege interest in the ground, but they do not charge a failure on the part of the applicant to comply with the reqirements of the law in any particular. Hence it must be assumed that the proceedings on the part of the applicant were regular. The protestants were therefore charged with notice of the application for patent, and to protect their interests were required to do so in the manner provided by law. (See Bright v. Elkhorn Mining Company, 8 L. D., 122; Hopeley et al. v. McNeil et al., .20 L. D., 87; Gowdy et al. v. Kismet Gold Mining Co., 22 L. D., 624). The appeal is therefore dismissed.

RAILROAD GRANT—ADJUSTMENT-TERMINAL LINE.

NORTHERN PACIFIC R. R. Co.

The joint resolution of May 31, 1870, designated the city of Portland as the point of connection between the branch line as originally provided for in the grant of July 2, 1861, and the extension to Puget Sound authorized by said joint resolution, and it therefore follows, that in the establishment of a terminal line between the lands granted by said joint resolution, and those of the prior grant forfeited by the act of September 29, 1890, said line should be drawn through the city of Portland.

Secretary Smith to the Commissioner of the General Land Office, July (W. A. L.) 9, 1896. (F. W. C.)

With your office letter of March 26, 1896, was transmitted a petition filed on behalf of certain settlers praying for a change in the terminal established to the unconstructed portion of the Northern Pacific railroad via the valley of the Columbia River, to a point at or near Portland.

To a proper understanding of the question a brief recitation of the legislation and previous action taken by this Department in relation to the grant is necessary.

The act of July 2, 1864 (13 Stat., 365), incorporating the Northern Pacific R. R. Co. made a grant to aid in the construction of a continuous line of railroad

Beginning at a point on Lake Superior, in the State of Minnesota or Wisconsin, thence westerly by the most eligible railroad route, as shall be determined by said company, within the territory of the United States, on a line north of the forty-fifth degree of latitude, to some point on Puget Sound, with a branch via the valley of the Columbia River, to a point at or near Portland, in the State of Oregon, leaving the main trunk line at the most suitable place, not more than three hundred miles from its western terminus.

By the joint resolution of April 10, 1869 (16 Stat., 57), said company

was

authorized to extend its branch line from a point at or near Portland, Oregon, to some suitable point on Puget Sound, to be determined by said company, and also to connect the same with its main line west of the Cascade Mountains in the Territory of Washington.

By the joint resolution of May 31, 1870 (16 Stat., 378), said company was authorized

To locate and construct, under the provisions and with the privileges, grants, and duties provided for in its act of incorporation, its main road to some point on Puget Sound ria the valley of the Columbia River, with the right to locate and construct its branch from some convenient point on its main trunk line across the Cascade Mountains to Puget Sound.

In the case of Spaulding v. Northern Pacific R. R. Co. (21 L. D., it was held that

57),

At Portland, Oregon, the Northern Pacific has two grants, the first for the line eastward, under the act of 1864, and the second northward, under the joint resolution of 1870, and, so far as the limits of the grant cast of said city overlaps the subsequent grant, the latter must fail; and, as the road at such point eastward is unconstructed, and the grant therefor forfeited by the act of September 29, 1890, the lands so released from said grant, do not inure to the later grant, but are subject to disposal under the provisions of said forfeiture act. (Syllabus.)

After this decision it became necessary to establish a terminal separating the grants in the neighborhood of Portland, and the diagram submitted showed the location of the terminal to be at a point selected on the line of general route to the north of the Columbia River, which point your office denominated as Vancouver, Washington.