the exact cost thereof, as nearly as may be, taking into account the value of the material, the time consumed and the compensation of the employees doing the work.

Inasmuch as the charges to be made for like services by the Surveyor-General of Louisiana, are fixed by law (4 Stat., 494), the foregoing instructions do not apply to this office.

Very respectfully,

Approved:

FRANK PIERCE,

First Assistant Secretary.

R. A. BALLINGER,

Commissioner.

NORTHERN PACIFIC GRANT-ADJUSTMENT-ACT OF JULY 1, 1898.

NORTHERN PACIFIC RY. Co. v. HUSTON.

Claimants for lands within the limits of the Northern Pacific grant entitled to an election under the act of July 1, 1898, who after the passage of that act have placed it beyond their power to return the land to the railway company in substantially the same condition as at the date of the act, should be held to have elected to retain it.

First Assistant Secretary Pierce to the Commissioner of the General (G. W. W.) Land Office, February 26, 1908.

(E. O. P.)

The Department is in receipt of a communication dated February 2, 1908, from counsel for the Northern Pacific Railway Company, protesting against the action of your office of December 3, 1907, declining to suspend action upon the application of one Frank L. Huston to relinquish his claim to certain lands in townships 5 and 6 north, ranges 13, 14, 15, 17, 18 and 19, east, Vancouver land district, Washington, preliminary to a transfer thereof to other lands under the provisions of the act of July 1, 1898 (30 Stat., 597, 620).

November 2, 1907, counsel for the railway company advised your office that it had substantial reasons for believing that the land, or a large part of it, the claim to which Huston is seeking to transfer, had been or was about to be denuded of its timber, and complained that it would be inequitable to compel it to take lands the value of which had been greatly depreciated by acts chargeable directly or remotely to the party who now sought to take other lands in lieu thereof. This complaint was accompanied by a request that action on the application of Huston to relinquish be suspended pending an investigation by your office. The railway company contends that if such investigation discloses a condition substantially as alleged in its complaint, the application should be rejected upon the ground that the act of the original claimants or their grantee amounted to an election to retain the land.

It appears that patents have been issued for nearly all the lands involved, and the company alleges that each and every one of the claims was originally in conflict between the individual claimant and the company and that patents were only issued after final decisions had been rendered by the Department.

Your office in dismissing the protest of the company evidently proceeded upon the theory that the Government had no real interest in the controversy and that the transfer of the individual claims being authorized by the act under which application therefor was made, the right is strictly a legal one the exercise of which is in no manner controlled by equitable principles.

Your office denied the materiality of proof of any facts which might evidence an intent upon the part of the individual claimant to retain the land as against the company, upon the ground that the railroad company, having at all times asserted a superior right, should have taken steps to prevent the performance of any acts of waste tending to depreciate or destroy the value of the land.

In the opinion of the Department the force of this reasoning is destroyed when the relative positions of the parties to the adjustment under the act of July 1, 1898, are considered. By its acceptance of the terms of that act the railroad company put it out of its power to successfully assert a superior right to the land in dispute as against the individual claimant, whatever it might have done prior to that time. The individual claimant by the terms of the act became entitled to retain or relinquish his disputed claim. The first step in the plan of adjustment must be taken by him. The act placed in his hands the right of election and the exercise of that right the railway company could not defeat. The railway company having voluntarily lodged this power in the individual applicant, it can hardly be said that it was thereafter asserting a superior right to the land. Its right was wholly dependent upon the election of the individual claimant. Congress certainly never intended that the right of the railway company should be further impaired by permitting the individual claimant to defer his election until he had destroyed the value of the land and then relinquish a barren claim. Congress intended an adjustment of conflicting claims. Adjustment implies an equitable settlement and precludes the idea of unfair dealing or the taking of undue advantage by either of the parties thereto. When the object of a statute is plain every rule of construction requires that it be so interpreted and administered as to carry out such object, if this can be accomplished without doing violence to the language used. This is the view adopted by the Supreme Court in the case of Humbird v. Avery (195 U. S., 499), expressed as follows:

Obviously, the first inquiry should be as to the object and scope of the act of 1898. Upon that point we do not think any doubt can be entertained, if the

words of the act be interpreted in the light of the situation, as it actually was at the date of its passage. Here were vast bodies of land the right and title to which was in dispute between a railroad company holding a grant of public lands and occupants and purchasers,-both sides claiming under the United States. The disputes had arisen out of conflicting orders or rulings of the Land Department, and it became the duty of the Government to remove the difficulties which had come upon the parties in consequence of such orders. The settlement of those disputes was, therefore, as the Circuit Court said, a matter of public concern. If the disputes were not accommodated, the litigation in relation to the land would become vexatious, extending over many years and causing great embarrassment. In the light of that situation Congress passed the act of 1898, which opened up a way for an adjustment upon principles that it deemed just and consistent with the rights of all concerned,—the Government, the railroad grantee, and individual claimants.

It is true the individual claimant is entitled to notice of his right to retain or relinquish his claim to the land in dispute. It does not follow, however, that prior to the receipt of such notice he may not by his own act estop himself from exercising his option. An election may be made as well by an act in pais as by formal declaration. The Department has recognized this principle by requiring election to be made within a certain time after notice and treating a failure to act within that time as an election to retain the land. Should the claimant after the passage of the act perform other acts indicating a clear intention to retain the land, he might thereafter be estopped from asserting the contrary. The commission of waste upon the land might well be treated as an act of election when it occasions a substantial detriment to the estate. The use or destruction of timber standing upon the land at the time the claimant became entitled to relinquish or retain the land is certainly strong evidence of his intention to exercise the latter right. If not evidence of that it could only be evidence of unfair dealing and this the spirit of the act upon which his alternative right depends does not sanction. The failure of the railway company, even if it had the power to do so, to prevent the performance of such acts would not operate to defeat the estoppel arising therefrom. Ignorance of his rights under the statute is equally immaterial. In the opinion of the Department, all persons entitled to an election under the act of July 1, 1898, who after its passage have placed it beyond their power to return the land to the railway company in substantially the same condition as at the date of the act, should be held to have elected to retain it.

The Department agrees with your office that the Government should not be put to the expense of investigation necessary to determine the truth of the matters alleged by the railway company in opposition to the application of Huston to transfer his claim to other lands. No provision has been made for a hearing in such cases, yet it is clear that this is the only method by which the facts can properly be presented for consideration. The railway company will, in the

event it desires to further oppose the right asserted by Huston, be required to fully set forth the grounds of its complaint and apply for a hearing thereon. If, in the judgment of your office, the matter can be determined at a single hearing, the local officers will be directed to proceed therewith. If this is impracticable, separate hearings may be ordered, at which the respective parties will be permitted to make such showing as they desire, the burden in each case being upon the railway company to sustain the charges made by a preponderance of the evidence.

Until full opportunity has been given the railway company to apply for a hearing, no further action will be taken by your office looking to the adjustment of the pending claims of Huston or others of a like character, and final action thereon will be governed by the facts disclosed at such hearings.

SURVEY-DEPUTY SURVEYOR-RETURNS.

HOMER SANTEE.

A deputy surveyor is required by his contract with the government to execute all surveys in his own proper,person," and in case he attempts to delegate this power, and returns surveys as having been executed by him which in fact were executed by another, he is liable to the penalty of having the surveys rejected, notwithstanding they may in other respects conform to all requirements.

First Assistant Secretary Pierce to the Commissioner of the General (F. W. C.) Land Office, February 28, 1908. (E. F. B.)

By decision of January 11, 1908, you rejected the surveys made by Homer Santee, deputy surveyor, of the boundaries of the Colorado Indian reservation, under contract No. 146, and of public lands in township 5 N., R. 13 W., Colorado, under contract No. 143, for the reason that said surveys were not executed by said deputy " in his own proper person," as stipulated in his contract.

Upon the returns of these surveys the attention of the deputy surveyor was called to necessary correction required to be made before they could be filed for platting. These corrections were made by the agent of the deputy surveyor and the surveyor-general reported that they were in satisfactory form and appear to have been executed conformably to the instructions and spirit of the manual," but it was then learned that the surveys had not been executed by the deputy in person, but by a representative employed by him, and for that reason the surveys were rejected.

It is contended by appellant that the stipulation entered into with the government to execute said surveys in his own proper person is

merely directory, and that even though said requirement should be held to be mandatory, the offer of the deputy to return to the field and execute in his own proper person all the lines run during his personal absence should have been accepted as a substantial compliance with the terms of the contract, and said surveys should be accepted.

A deputy surveyor is required to execute all surveys "in his own proper person" and such is the express stipulation in the contract. He can not delegate this power to another, and if he fraudulently or otherwise returns surveys appearing to have been executed by the deputy, but which in fact were not executed by him, he is liable to the penalty of having his surveys rejected, whether they in other respects conform to the instructions or not. It is such a violation of the terms of his contract as will warrant your office in rejecting them or not as you may see proper.

While the Department is not disposed to control or interfere with your discretion in such matters, it is suggested, in view of the importance of having the surveys in question expedited, and to avoid any unnecessary delay and expense incident to the issuing of notices inviting proposals for new survey, that the offer of the deputy to return to the field and execute in his own proper person all the lines run during his personal absence from the field, be accepted not in acknowledgment of any right or privilege due him, but solely in the interest of the government.

While the deputy has no right to complain of the result of his conduct in submitting fraudulent returns of said surveys, your office has the right to waive it and not to enforce the penalty which he has incurred when it may be to the interest of the government to do so. See W. C. Miller et al. (21 L. D., 526).

In the event this course is adopted, a very definite and limited period should be fixed for the completion of the work. With this added suggestion, your decision is affirmed.

ENTRY-AMENDMENT-SECTION 2372, REVISED STATUTES.

INSTRUCTIONS.

Rules governing amendments of original entries.

Acting Secretary Pierce to the Commissioner of the General Land (G. W. W.) Office. February 29, 1908.

(F. W. C.)

Section 2372 Revised Statutes authorizes amendments of entries only in cases where final certificate has issued. However, under the supervisory authority vested in the Secretary of the Interior, in