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under the preemption or homestead laws of the United States subsequent to the time at which, by the decision of the Land Office, the right of said road was declared to have attached to such lands, the grantees, upon a proper relinquishment of the lands so entered or filed for, shall be entitled to select an equal quantity of other lands in lieu thereof from any of the public lands not mineral, and within the limits of the grant, not otherwise appropriated at the date of selection, to which they shall receive title the same as though originally granted. And any such entries or filings thus relieved from conflict may be perfected into complete title as if such lands had not been granted: Provided, That nothing herein contained shall in any manner be so construed as to enlarge or extend any grant to any such railroad, or to extend to lands reserved in any land grant made for railroad purposes: And provided further, That this act shall not be construed so as in any manner to confirm or legalize any decision or ruling of the Interior Department under which lands have been certified to any railroad company when such lands have been entered by a preemption or homestead settler after the location of the line of the road and prior to the notice to the local land office of the withdrawal of such lands from market.

By act of August 29, 1890 [26 Stat., 369], the act of June 22, 1874, was amended as follows:

That the privileges granted by the aforesaid act approved June twenty-second, eighteen hundred and seventy-four, are hereby extended (subject to the provisos, limitations, and restrictions thereof) to all persons entitled to the right of homestead or preemption under the laws of the United States, who have resided upon and improved for five years lands granted to any railroad company but whose entries or filings have not for any cause been admitted to record.

The following is the act of July 1, 1902 [32 Stat., 733]:

That the provision of the act of June twenty-second, eighteen hundred and seventyfour, entitled "An act for the relief of settlers on railroad lands," and all acts amendatory thereof or supplementary thereto, including the act approved March third, eighteen hundred and eighty-seven, entitled "An act to provide for the adjustment of land grants made by Congress to aid in the construction of railroads and for the forfeiture of unearned lands, and for other purposes," as modified or supplemented by the act approved March second, eighteen hundred and ninety-six, entitled “An act to provide for the extension of the time within which suits may be brought to vacate and annul land patents, and for other purposes," shall apply to grants of land in aid of the construction of wagon roads.

The act of June 22, 1874, authorizes the relinquishment by railroad companies, in favor of settlers, of lands within the limits of their grants which have been entered or tiled upon under the provisions of the preemption or homestead laws of the United States subsequent to the time at which, by decision of the Land Office, the rights of said roads have been declared to have attached, and to select in lieu of the land thus relinquished an equal quantity of other lands from any of the public lands within the limits of their grants, nonmineral in character, and not reserved or otherwise appropriated at the date of selection, and to receive title to the same as though originally granted.

As the act of June 22, 1874, limited the relief to persons who had been allowed to make entries, the act of August 29, 1890, extended the privileges granted thereby to persons who have resided upon and improved lands granted to any railroad company for five years, but

whose entries for any reason were not admitted of record, and the act of July 1, 1902, extended the provisions of said acts and the acts of March 3, 1887 (24 Stat., 556), which provided for the adjustment of railroad land grants and forfeited the lands then unearned by the construction of the roads, as modified and supplemented by the act of March 2, 1896 (29 Stat., 42), entitled "An act to provide for the extension of the time within which suits may be brought to vacate and annul land patents, and for other purposes," to grants of land to aid in the construction of wagon roads.

Therefore, upon the filing of any relinquishment as prescribed in said acts this office is authorized to treat the filing, entry, or claim of the settler as though the land had not been granted to the railroad or wagon-road company.

Where conflicting claims are brought to the attention of this office and the superior right of the company has been ascertained, and it is found that the claim of the settler in the absence of the railroad claim would be allowed, this office will direct the attention of the officers of the company to the facts and request the relinquishment of the land.

At the same time the party interested should himself seek the relief indicated by direct application to the railroad or wagon-road authorities, as the case may be, and thereby aid in securing an early adjustment.

Where patent or its equivalent has not been issued for the benefit of the company, relinquishment may be made by simple waiver of claim; but where title has passed, formal reconveyance will be required, as in other cases of surrender of patents.

The company may file its lieu selection and relinquishment at the same time, or it may file its relinquishment and make its selection at any subsequent time, in which latter case the relinquishment may be sent direct to this office, and upon its receipt proper annotations thereof will be made on the records and the settler's claim immediately released from suspension. But selections of lieu lands must be filed with the register and receiver of the proper local land office and be noted upon their records before transmission to this office.

Selections must be of lands, not mineral, within the limits of the grant, free from other claims and not reserved or otherwise appropriated at date of selection, but the word "reserved," as here used, shall not be held to include the sections alternate to those granted, the title to which remains in the United States.

Where selection fees have been paid upon the land relinquished they will be applied to the lieu selection, but where such fees have not been paid the usual selection fees will be charged.

The selections will be reported by the register and receiver in the same manner as other selections, with a reference to the proper act or acts by their date and title; and opposite each tract selected annotation

will be made on the records of the tract surrendered. See Forms A and B attached.

It is to be noted that the acts authorizing relinquishments by railroad and wagon-road companies are not mandatory upon the companies, but simply provide a mode of adjustment of conflicting claims depending upon their voluntary action, and the settlers should therefore assist this office to the extent of their ability in securing the relinquishments sought.

For instructions under act of March 3, 1887, see circular of February 13, 1889, 8 L. D., 348.

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I,

agent of the

- Company, hereby apply to select the following

described lands, in lieu of lands inuring to said company under the act of and surrendered by said company in favor of actual settlers thereon as provided by the act of

entitled "

FORM B.

UNITED STATES LAND OFFICE,

- 1902.

We hereby certify that we have carefully and critically examined the foregoing list of lands claimed by the Company in lieu of lands heretofore granted for said company and selected by its duly authorized agent, and that we find the same to be correct; and we further certify that the filing of said list is allowed and approved, and that the whole of said lands are surveyed public lands of the United States and within the limits of

miles.

We further certify that the foregoing list shows an assessment of the fees payable to us under the act of July 1, 1864, and that the said company have paid to the undersigned, the receiver, the full sum of in full payment of said fees.

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Motion for review of departmental decision of December 12, 1901, 31 L. D., 169, denied by Acting Secretary Ryan October 6, 1902.

JACOBY . KUBAL.

Motion for review of departmental decision of July 24, 1902, 31 L. D., 382, denied by Acting Secretary Ryan October 6, 1902.

HOMESTEAD-SOLDIERS' ADDITIONAL-SECTIONS 2304 AND 2306, R. S.

GEORGE W. Cook.

The qualifications of a soldier who makes application for an additional homestead under section 2306 of the Revised Statutes, must be determined under the limitations found in section 2304, which provides that the soldier shall have "served in the army of the United States during the recent rebellion, for ninety days." Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) October 23, 1902.

(C. J. G.)

A motion has been filed by George W. Cook, assignee of the claimed soldiers' additional homestead right of Alban E. Bentley, for review of departmental decision of August 26, 1902 (not reported), wherein is affirmed the action of your office in rejecting his application to enter, under section 2306 of the Revised Statutes, the NW. NW. 4, sec. 17, T. 9 N., R. 19 E., Lewiston, Montana, land district.

The report furnished by the Record and Pension Office of the War Department as to the soldier's military service was as follows:

Alban Bentley was enrolled June 9, 1862, at Camp Chase for 3 mos., and mustered into service as a pvt. in Co. E, 85 Reg't Ohio Inf., June 10, 1862, and dischg'd as a pvt. Aug. 18, 1862, on surgeon's certificate of disability.

Name Alban E. Bentley not found on rolls of Co.

The basis of your office decision was that as shown by the above report the soldier served only two months and eight days in the army, and for that reason, under the decisions of the Department, he was not entitled to a soldiers' additional homestead right, although he was discharged on account of disability. In the case of Leslie M. Hamilton (31 L. D., 165, 166), it was said:

Section 2306 of the Revised Statutes is expressly limited to the particular class mentioned in section 2304, namely, those who have served in the Army, Navy, or Marine Corps of the United States during the war of the rebellion, for ninety days. The provisions in section 2305 of the Revised Statutes with respect to soldiers “discharged on account of wounds received or disability incurred in the line of duty,” were made solely with respect to the credit that should be allowed a soldier for his military service in computing the period of his residence under an original entry, and in no way can be invoked as bearing upon the qualifications of an applicant under section 2306, whose status in that respect must be determined under limitations found in section 2304.

It is insisted in the motion for review, as was done upon appeal, that it was error to follow the decision in that case, as the statements

made therein, as above, were not necessary to its adjudication and are therefore mere dicta; that it was error to construe section 2306 of the Revised Statutes solely in relation to section 2304, which also should be construed in connection with section 2305; that in seeking a correct. interpretation of the sections named resort should be had to the original act of June 8, 1872 (17 Stat., 333), as it stood prior to revision, and which it is alleged comprehends all classes of soldiers. The decision of your office in the case of Leslie M. Hamilton, supra, denying an application for the exercise of a soldiers' additional right, was on the ground that the soldier served less than ninety days during the war of the rebellion and was not discharged for disability incurred in the line of duty, "even if in that case he would be entitled to the additional right." This ruling called directly for a construction of section 2305 of the Revised Statutes-as to its relation to section 2306-which provides that if the soldier is " discharged on account of wounds received or disability incurred in the line of duty, then the term of enlistment shall be deducted from the time heretofore required to perfect title, without reference to the length of time he may have served," and required a modification of the decision of your office to that extent. Hence the statement made in said case, as above quoted, was necessary to the proper adjudication thereof and may not therefore be regarded as mere dicta. Nor is the ruling in said case one of recent origin. It has been held uniformly that the qualifications of the soldier, when application is made for a homestead under section 2306 of the Revised Statutes, must be determined under the limitations found in section 2304, which provides that the soldier shall have "served in the Army of the United States during the recent rebellion for ninety days." Thus, in the case of J. B. Haggin (7 L. D., 287, 288), it was said:

Section 2306 gives the right to an additional homestead under certain circumstances to those only who are entitled under the provisions of section 2304 to enter a homestead, etc., and said section 2304 is applicable by its terms only to those who served in the Army of the United States, etc., for ninety days (the original act of June 8, 1872, said ninety days or more), and a copy of the said soldier's discharge attached to the entry herein discloses the fact that he enlisted on the 10th day of September, 1864, to serve sixty days, and was discharged on the 2d day of December, 1864, having served but eighty-three days in all.

This seems to have been overlooked heretofore, but as it is conclusive of the case it will be unnecessary to discuss, the military status of the "enrolled Missouri Militia."

Residence is not required to perfect title under section 2306, while by the express terms of section 2305 it relates to those of whom a period of residence is required. Therefore section 2305 necessarily refers to the original entry made by a soldier, so that even in the absence of the express limitation found in section 2306, based on section 2304, said section 2305 would not be looked to in determining the

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