said south-east quarter on August 31, 1820. The land officers and the local officers in so doing administered the law as it then was, and ever since has been construed.

But Congress came to the aid of the New Madrid claimants and passed the act of April 26, 1822 (3 Stat., 668), which provides as follows:

That the locations heretofore made of warrants issued under the act of the fifteenth (seventeenth) of February, one thousand eight hundred and fifteen, entitled 'An act for the relief of the inhabitants of the late county of New Madrid, in the Missouri Territory, who suffered by earthquakes,' if made in pursuance of the provisions of that act, in other respects, shall be perfected into grants, in like manner as if they had conformed to the sectional or quarter-sectional lines of the public surveys; and the sales of fractions of the public lands, heretofore created by such locations, shall be as valid and binding on the United States as if such fractions had been made by rivers, or other natural obstructions.

But this act did not affect the location of Huff, the land of which had already been appropriated in part to Burris, and the balance to Williams. Intervening rights, which had vested prior to the passage of said act, were carved out of its operation.

In Wilcox v. Jackson (13 Pet., 498, 513), the court say,

That whensoever a tract of land shall have once been legally appropriated to any purpose, from that moment the land thus appropriated becomes severed from the mass of public lands; and that no subsequent law, or proclamation, or sale, would be construed to embrace it, or to operate upon it.

In Lytle v. Arkansas (9 How., 314, 333), the court say,—

The claim of pre-emption is not that shadowy right which by some it is considered to be. Until sanctioned by law, it has no existence as a substantive right. But when covered by the law, it becomes a legal right, subject to be defeated only by a failure to perform the conditions annexed to it.

See also Frisbie v. Whitney, 9 Wall., 187; and The Yosemite Valley case, 15 Wall., 77.

It appears from the original certificate issued to Britton Williams. above cited, that his right of pre-emption was "adjudged in his favor," on February 25, 1820, from which judgment no appeal appears to have been taken. This judgment must then have disposed of the Huff claim. It further appears that the assignees of Williams at the date of the final certificate issued to them on March 28, 1829, were also largely, if not wholly the assignees of the Huff claim. The deeds showing the chain of title from Williams to the said assignees are transmitted with the record, but those deeds do not show the chain of title from Huff, but they do show several assignments by persons claiming to own the Huff location, as if the intent was to unite both claims into one when final payment was made.

In view of these assignments, and of the statement made by the counsel for the appellants, that said "land has been held in actual open and notorious occupancy by said parties and their grantors for over

seventy years," it may well be doubted that there are now any claimants under the Huff location, aside from the appellants.

In my opinion patent should issue on the entry of Britton Williams. Your judgment is reversed.

REPAYMENT-DOUBLE MINIMUM LANDS.

FREDERICK B. SOUTHWORTH.

The price of lands within the limits of the forfeited Texas Pacific grant remained at double minimum until the act of March 2, 1889, and under an entry made prior to said act, there is no authority to repay any part of said price.

Secretary Noble to the Commissioner of the General Land Office, January 2, 1892.

On the 4th of November, 1890, application was made to you, in behalf of Frederick B. Southworth, for repayment of the sum of two hundred dollars, being the excess above single minimum price paid by him at the Tucson land office, Arizona Territory, in the purchase of the NE of Sec. 27, T. 8 S., R. 22 W., on the 28th of December, 1888.

On the 8th of November, 1890, you addressed a letter to the attorneys making the application, in which you declined to recommend such repayment. An appeal from your decision brings the question before me for consideration.

The twelfth section of the act of Congress approved March 3, 1871 (16 Stat., 573), granted certain lands to the Texas Pacific Railroad Company. On the 28th of February, 1885, Congress passed an act (23 Stat., 337), which declared,—

That all lands granted to the Texas Pacific Railroad Company under the act of Congress entitled "An act to incorporate the Texas Pacific Railroad Company and to aid in the construction of its road, and for other purposes," approved March third, eighteen hundred and seventy-one, and acts amendatory thereof or supplemental thereto, be, and they are hereby, declared forfeited, and the whole of said lands restored to the public domain and made subject to disposal under the general laws of the United States, as though said grant had never been made: Provided, That the price of the lands so forfeited and restored shall be the same as heretofore fixed for the even sections within said grant.

The act of March 3, 1871, granting the odd numbered sections to the railroad increased the price of the even sections to two dollars and fifty cents per acre, and by the forfeiting act quoted above, this was fixed as the price for the restored lands, or the odd sections. This remained the price until the passage of the act of March 2, 1889, (25 Stat., 854) fixing the price of all public lands within the limits of railroad grants, which should be forfeited, at the price of $1.25 per acre.

The lands in question were within the limits of the Texas Pacific Railroad Company's grant, and the entry of Southworth was made prior to the passage of the act last mentioned. The price which he

paid was properly charged, and there is no authority for repayment of any part of said amount. Texas Pacific Grant (8 L. D., 530).

Your decision of November 8, 1890, from which the appeal before me was taken, is approved and affirmed.

RAILROAD GRANT-PRE-EMPTION FILING-ACT OF MARCH 3, 1887.

OLE HALVORSON.

An unexpired pre-emption filing of record at the date when a railroad grant becomes effective, excepts the land covered thereby from the operation of the grant. Proceedings for the recovery of title are authorized where patent has erroneously issued for lands excepted from a railroad grant.

Prior to the institution of suit for the recovery of title in such case a demand for reconveyance must be made upon the company, and this demand can only be directed by the Secretary of the Interior.

Secretary Noble to the Commissioner of the General Land Office, January 2, 1892.

On December 18, 1889, Ole Halvorson through Hon. Knute Nelson, filed in this Department a petition representing that in July, 1884, he applied, at the Fergus Falls, Minnesota land office, to make timberculture entry of the NW. of Sec. 13, T. 134, R. 45, basing his application upon the alleged facts that the land was excepted from the grant to the State (of Minnesota) for the St. Paul, Minneapolis and Manitoba Railway Company, by reason of the pre-emption filing of one Gunder M. Kallor made for said land June 22, 1871. That a hearing was had on said application before said local land officers on the 26th day of July, 1884, and after the hearing the case and testimony therein was forwarded to and filed with the Commissioner of the General Laud Office. That while the case was pending in the General Land Office and undetermined, the land in question was erroneously and through mistake and inadvertence on the 13th day of February, 1889, patented and conveyed to the State of Minnesota, for and on account of said railway company, and the said State on the 13th day of March, 1889, conveyed said land to the railway company. That on the 17th day of June, 1889, the Commissioner of the General Land Office called the attention of the governor of Minnesota to this case and the facts therein, and requested the governor to reconvey or procure the reconveyance of the land to the United States. That afterwards the governor of said State requested the railway company to reconvey and relinquish the land, to the United States for the benefit of said Halvorson, and the company refused to comply with said request. Upon these facts the petitioner asks that a demand be made upon said company for a reconveyance of the land to the United States and in case the company fails to reconvey it, then that suit be recommended to cancel the patent issued for said tract.

Halvorson's application was referred to you for a report and under date of September 26, 1890, you reported thereon, from which it appears that on the 13th day of February, 1889, a patent was issued conveying lands to the State of Minnesota on account of the St. Vincent Extension of the Manitoba Railway Company and by inadvertence the tract applied for by Halvorson was embraced therein, his pending appeal and the pre-emption filing of Kallor having been overlooked.

The tract is within the twenty mile indemnity limits of the grant made by the act of March 3, 1855 (13 Stat., 525), in aid of what is known as the main line of the St. Paul, Minneapolis and Manitoba Railway extending to Breckenridge.

The orders of withdrawal of indemnity lands on account of said grant have been revoked and the lands not embraced in pending or approved selections have been restored.

No claim has ever been made to the tract on account of said main line and further consideration of said grant is unnecessary.

The tract is also within the forty mile limits of the grant to the Northern Pacific Railroad Company, but no selection of said tract has ever been made on account of that grant; the withdrawal under the grant to this road has been revoked and the further consideration of the same is also unnecessary.

Upon the definite location, December 20, 1871, of the St. Vincent Extension of the St. Paul, Minneapolis and Manitoba Railway company, under the act of March 3, 1871 (16 Stat., 588), the tract came within the ten-mile granted limits of said line. The withdrawal on account of the grant to this road was ordered February 6, 1872, received at the local land office February 15, 1872. The tract in question was listed February 7, 1882, as inuring under this grant. The rights of the railway company under this grant attached, if at all, on December 20, 1871, the date of the acceptance of its map of definite location. At that date the filing of Kallor was intact upon the records. It was unexpired and a subsisting claim and served to except the land covered thereby from said grant. Malone v. Union Pacific Ry. Co. (7 L. D., 13); Northern Pacific Railroad Co. et al. v. John O. Miller (11 L. D., 1); Union Pacific Ry. Co. v. Phillips (11 L. D., 163); St. Paul, Minneapolis and Manitoba Railway Co. v. Northern Pacific Railroad Co. (12 L. D., 567).

The patent issued to said company was therefore illegally issued, and I concur in your recommendation that suit should be instituted to set it aside, in case the railway company shall refuse to reconvey the land to the United States. However, before such suit can be properly recommended it will be necessary under the second section of the act of March 3, 1887, (24 Stat., 556) to demand from the railroad company a reconveyance of the land embraced in said patent. The demand for reconveyance is a statutory requirement to be made only by direction. of the Secretary of the Interior. Union Pacific Ry. Co. (12 L. D., 210). You are accordingly directed to demand from the St. Paul, Minneap

olis and Manitoba Railway company (St. Vincent Extension) a recon veyance of the tract embraced in Halvorson's application in accordance with section two of the act of March 3, 1887, and report the action taken thereunder by the company.

The papers in the case are herewith returned to be kept with the files in your office, and in case the railway company shall fail or refuse to reconvey the land to the United States, within the time prescribed by said act, you will return them with your report.

MINING CLAIM-MILL SITE-SECTION 2337, R. S.

HECLA CONSOLIDATED MINING Co.

The building of a tram road, or the grading of the road bed therefor is not such a use or improvement of the land as warrants the allowance of a millsite.

An application for a millsite cannot be allowed where it appears that the improvements are located on the line between two mill sites, without either location possessing the requisite improvements independently of the other.

Secretary Noble to the Commissioner of the General Land Office, January 2, 1892.

I have examined the papers transmitted by your letters of December 17, 1890, consisting of the certificate of incorporation of the Hecla Consolidated Mining Company, organized under the laws of Indiana, with its application for a patent for "The Everest Mill-Site No. 1," situate in T. 3 S., R. 10 W. Beaver Head county, Montana, Helena, Montana, land district, together with a plat of the survey, proof of notices properly advertised and posted, with all the necessary proceedings, including the final certificates of entry, also from the same company like certificate, papers, and proof with application for patent for "Everest Mill-Site No. 2" immediately adjoining No. 1 on the south.

It appears that when the surveys were made the company had expended five hundred dollars on each site, according to the certificate of the surveyor, but the same had been expended in grading half of a tram-way road-bed across a portion of each tract and about two and one-half miles long, worth two thousand dollars. It had expended no money in the erection of any mill or works for the reduction of ores, and you held that the building of a tram-road or the grading of the road-bed was not such improvement or use of the land as would warrant a patent as a mill-site, and you held the entries for cancellation. From this action, the company, in each case, appealed. Your decisions were certainly correct as the cases were presented, but after your decisions, evidence was presented and forwarded to the Department showing that the surveys were preliminary matters, and that the company fol lowed up this initial step by erecting upon the ground surveyed, in the two sites, concentrating buildings, crushers, and the various buildings