tificates "shall be regarded as conveying the fee simple of all the lands embraced in such lists," for if, as declared in St. Louis, etc. Ry. Co. v. McGee (supra), the forfeiting act "is to take the place of a suit by the United States to enforce a forfeiture," and when such is the object of the act beyond question, it must be held to be as effective in revesting the title in the United States as if a judgment or forfeiture to the same effect had been duly rendered in the proper judicial tribunal.

In the case of Wisconsin R. R. Co. v. Price County (133 U. S., 496510), the supreme court said that the road having been built, as required by law, it had an absolute right or title to the lands granted, and it matters not which term is used; that,

The subsequent issue of the patents by the United States was not essential to the right of the company to those parcels, although in many respects they would have been of great service to it. They would have served to identify the lands as coterminous with the road completed; they would have been evidence that the grantee had complied with the conditions of the grant, and to that extent that the grant was relieved of possibility of forfeiture for breach of them; they would have obviated the necessity of any other evidence of the grantee's right to the lands; and they would have been evidence that the lands were subject to the disposal of the railroad company with the consent of the government. They would have been in these respects deeds of further assurance of the patentee's title, and, therefore, a source of quiet and peace to it in its possessions.

It must be remembered that the absolute right of disposal of all of the lands granted can accrue only upon the building of the road by the company in accordance with the terms of the granting act, and, if the road is not built as required by law, then Congress is authorized to say in what manner the title shall be revested in the United States. Railroad Land Co. v. Courtright (21 Wallace, 310); Billups v. Lindsey (70 Ala., 521); Alabama and Chattanooga R. R. Co. (8 L. D., 33–37).

This being so, it necessarily follows that the lands embraced within the provisions of said forfeiting act were restored to the public domain, and, in the language of the act, they were therafter to "be disposed of as other public lands of the United States." Moreover, this view seems to have been acted upon by the Executive Department, for under the provisions of the act of July 4, 1876 (19 Stat., 73), a large amount of the lands certified to the State under said act of 1856, were sold at private entry, under the proclamations of the President, dated February 20 and May 8, 1879 (Nos. 847 and 852), and also to pre-emption settlers. The only departmental decision contrary to the view herein expressed, is the case of Horace B. Rogers, et. al. (10 L. D., 29), in which it was held that the lands applied for "have been certified to the State of Michigan," for the benefit of the Marquette, Houghton and Ontonagon R. R. Company, and, although Congress by act of March 2, 1889 (25 Stat., 1008), had forfeited said lands and "resumed title to the same," yet "as these lands have been certified to said State for the benefit of said company, and title is now outstanding, suit should be brought to cancel said certification, unless the company will reconvey said lands upon application." It does not appear in said decision when

the lands applied for were certified to the State, and it would seem to be unnecessary, if by the forfeiting act of 1889 the United States "resumed title to the same," to require any reconveyance, or to institute suit to cancel said certification. Besides, said case appears to be in conflict with the later case of Victorien v. New Orleans Pacific Ry. Co. (10 L. D., 637), which held that "the forfeiture of the grant of June 3, 1856, by the act of July 14, 1870, rendered the lands so forfeited at once subject to settlement." If the lands were subject to settlement it must have been because they were to "be disposed of as other public lands of the United States." It must therefore be held that said certificates, so far as they covered lands included in the terms of the forfeiting act of 1870, were annulled and vacated, and the lands restored to the public domain, and being public lands at the date the right of said company attached they passed under its grant.

The case of Horace B. Rogers et al. (supra) is overruled, and the decision of your office must be, and it is hereby, reversed.

RAILROAD GRANT-DECLARATION OF FORFEITURE.

NEW ORLEANS PACIFIC RY. Co. v. SANCIER.

Under a grant of lands in aid of a railway company, a forfeiture for breach of condition may be declared by judicial decree or act of Congress.

The grant of June 3, 1856, provided that if any of the roads for which lands were granted should not be completed within ten years the unsold lands should revert to the United States, and under this grant lands were certified to the State for the benefit of the New Orleans and Opelousas road. The act of July 14, 1870, declared a forfeiture of the lands so granted to said company, and provided that said lands "shall be hereafter disposed of as other public lands of the United States. Held, That said act of forfeiture operated to restore said lands to the public domain free from the effect of the original grant and the certification thereunder.

Secretary Noble to the Commissioner of the General Land Office, April 2,

1892.

I have considered the case of New Orleans Pacific Railway Company v. Alcie Sancier, on the appeal of the former from your decision of May 24, 1889, rejecting its claim to the SW. of Sec. 5, Tp. 4 S., R. 1 E., New Orleans, Louisiana, land district.

This tract is within the granted limits of the grant made by the act of March 3, 1871 (16 Stat., 573) to the New Orleans, Baton Rouge, and Vicksburg Railroad Company, the appellant here being recognized as the successor of that company. The line of the company's road was definitely located opposite this tract November 17, 1882, and on December 28, 1883, said company applied to list this tract as a part of its grant.

On June 30, 1888, Sancier applied to make homestead entry for said tract, alleging settlement thereon March 1, of that year. The company

filed objections to the allowance of such application, and a hearing was ordered to determine the rights of the parties. Before the day set for such hearing, the homestead applicant filed a statement setting forth that he had settled upon said tract as public land; that the company's claim was against the government and to be settled between them and not between him and the company, whereupon the local officers forwarded the papers to your office for instructions in the premises.

Your office, in deciding the case, recited the fact that this tract was certified to the State of Louisiana, October 7, 1859, for the New Orleans, Opelousas and Great Western Railroad Company, under the act of June 3, 1856, and that while said grant was declared forfeited by act of July 14, 1870, yet the certificate to the State remained intact until February 24, 1888 when a reconveyance was made by the governor, and held that at the date the rights of the New Orleans Pacific Company attached "the title to the land was in the State of Louisiana and did not pass under said grant but was excepted therefrom by the certification aforesaid."

The question then is as to the effect of the forfeiting act upon the title to this land, and it is all the more important because a large body of land, stated by counsel for the railroad company as nearly two hundred thousand acres, will be affected by the ruling upon this question.

The act of June 3, 1856 (11 Stat., 18) was as to the granting clause in the same words as grants to other States made about that time, viz. "That there be and is hereby granted to the State of Louisiana" etc. and further provided that if any road for which land was thus granted should not be completed within ten years, the land then remaining unsold should revert to the United States. A list of lands, embracing the tract here in question, was, on October 7, 1859, certified to as containing lands inuring to the State under said grant. The company claiming that part of the grant to the State pertaining to the line of road "from New Orleans to Opelousas to the State line of Texas" failed to complete its road, and by act of July 14, 1870 (16 Stat., 377) that part of the grant of 1856 was declared forfeited. The forfeiting act reads as follows:

Be it enacted etc. That all lands which were granted by Congress, in the year eighteen hundred and fifty-six, to the State of Louisiana, to aid in the construction of the New Orleans, Opelousas, and Great Western Railroad, and which have not been lawfully disposed of by the said State under said grant, which has expired by limitation, or by act of Congress since the original grant, are hereby declared forfeited to the United States, and these lands shall hereafter be disposed of as other public lands of the United States.

Section 22 of the act of March 3, 1871 (16 Stat., 573) declares "there is hereby granted" to the New Orleans, Baton Rouge and Vicksburg Railroad Company in aid of its construction from New Orleans to Baton Rouge, thence by way of Alexandria to connect with the eastern terminus of the Texas Pacific road, the same number of alternate sections of public lands per mile as had been in section 9 of said act granted the

Texas Pacific Company in California, and said lands were to be withdrawn from market, selected, and patents issued therefor, upon the same terms and in the same manner as provided for in the case of the Texas Pacific Company. This grant was of alternate sections of public lands, not mineral, designated by odd numbers, to the amount of ten sections per mile "where the same shall not have been sold, reserved, or otherwise disposed of, by the United States, and to which a preemption or homestead claim may not have attached at the time the line of said road is definitely fixed." It was also provided (Section 12) that the company should, within two years, designate the general route of its road and file a map thereof in this Department, and that thereupon, the Secretary of the Interior should immediately cause the lands within the granted limits to be withdrawn from pre-emption private entry and sale.

On November 11, 1871, the company filed a map of designated route of that portion of its road running from Shreveport by way of Alexandria to Baton Rouge, and on November 29, a withdrawal of public lands along the line so designated was ordered by your office. On February 13, 1873, a map of general route covering that portion of the road from New Orleans to Baton Rouge was filed, and the public lands along the line designated thereby were ordered withdrawn.

By order of January 30, 1873, your office directed that all lands approved to the State under the act of 1856 "and falling outside the withdrawn limits of New Orleans, Baton Rouge, and Vicksburg Railroad, authorized by act of March 3, 1871" be restored to settlement and sale. This was the condition of the land in question at the date the New Orleans Pacific Company filed its map of definite location, and the question presented is as to whether it was public land which had not then "been sold, reserved or otherwise disposed of by the United States."

It may be mentioned as a part of the history of this grant that by act of February 8, 1887 (24 Stat., 391) a portion of the grant to the New Orleans, Baton Rouge and Vicksburg Company was declared forfeited, and the title of the United States and said company to the lands in that portion of the grant not therein declared forfeited was "relinquished, granted, conveyed and confirmed" to the New Orleans Pacific Company as assignee of the former company.

The fundamental proposition submitted in behalf of the appellant company that the act of 1856 made a present grant, and that the title to the tracts to be afterwards designated by the location of the roads passed to the State as of the date of said act, and in support of which counsel cite Schulenberg v. Harriman (21 Wall., 60) no one will attempt to controvert. It is equally well settled that the title thus conveyed did not revest in the United States upon default in the construction of the road within the time limited in the granting act in the absence of appropriate action upon the part of the grantor to that end. These specific points were considered by Attorney General Brewster, and his conclu

sions thereon are found in his opinion of June 13, 1882, addressed to Secretary Teller (17 Ops., 370).

Whether the action taken in this case was effectual, proprio vigore, to re-invest in the United States the title to this tract of land, and others similarly situated, is the question to be determined.

One of the earliest cases in which the question as to the forfeiture of a public grant was presented to, and discussed by, the supreme court of the United States is the case of United States v. Repentigny (5 Wall., 211) in the decision of which case it was said:

We agree that before a forfeiture or reunion with the public domain could take place, a judicial inquiry should be instituted, or, in the technical language of the common law, office found, or its legal equivalent. A legislative act, directing the possession and appropriation of the land, is equivalent to office found. The mode of asserting or of assuming the forfeited grant, is subject to the legislative authority of the government. It may be after judicial investigation, or by taking possession directly, under the authority of the government, without these preliminary proceedings.

That case was referred to in the case of Schulenberg v. Harriman (21 Wall., 44) wherein was involved the question of the status of a tract of land, included in a grant to the State of Wisconsin, in all respects similar to the grant in the case now under consideration, after condition broken, but prior to any declaration of forfeiture. The court there said:

In what manner the reserved right of the grantor for breach of the condition must be asserted so as to restore the estate depends upon the character of the grant. If it be a private grant, that right must be asserted by entry or its equivalent. If the grant be a public one it must be asserted by judicial proceedings authorized by law, the equivalent of an inquest of office at common law, finding the fact of forfeiture and adjudging the restoration of the estate on that ground, or there must be some legislative assertion of ownership of the property for breach of the condition, such as an act directing the possession and appropriation of the property, or that it be offered for sale or settlement. At common law the sovereign could not make an entry in person, and, therefore, an office-found was necessary to determine the estate, but, as said by this court in a late case, "the mode of asserting or of resuming the forfeited grant is subject to the legislative authority of the government. It may be after judicial investigation, or by taking possession directly under the authority of the government without these preliminary proceedings."

In the case of Farnsworth et al. v. Minnesota and Pacific R. R. Co. et al. (92 U. S., 49), which involved the effectiveness of a legislative declaration of forfeiture, it was said:

A forfeiture by the State of an interest in lands and connected franchises, granted for the construction of a public work, may be declared for non-compliance with the conditions annexed to their grant, or to their possession, when the forfeiture is provided by statute, without judicial proceedings to ascertain and determine the failure of the grantee to perform the conditions. Such mode of ascertainment and determination-that is by judicial proceedings-is attended with many conveniences and advantages over any other mode, as it establishes as matter of record, importing verity against the grantee, the facts upon which the forfeiture depends, and thus avoids uncertainty in titles, and consequent litigation. But that mode is not essential to the divestiture of the interest where the grant is for the accomplishment of an ob