usefulness and deprive them of the only vocation they are capable of pursuing, would be a cruelty that is abhorent to our policy. Therefore, within the reasonable construction of the law the protecting arm of the government will be extended to guard them from the avarice and cupidity of their more enlightened brother the white man. Inasmuch as the government has recognized their right to occupy this land, notwithstanding the treaty of 1859, I hold that their rights then are similar to those of a settler, and that the acts of Pullen in getting and holding possession of the land were those of a trespasser and he can take nothing thereby. As a further recognition of the right of the Indians to this land by the government the identical land in dispute, together with others in the neighborhood, were, by executive order of February 19, 1889, withdrawn from sale and settlement, subject, however, to any existing rights of any party.

The language of the supreme court in Atherton v. Fowler (96 U. S. page 519) seems particularly applicable to this case.

Does the policy of the pre-emption law authorize a stranger to thrust these men out of their houses, seize their improvements, and settle exactly where they were settled, and by these acts acquire the initiatory right of pre-emption? The generosity by which Congress gave the settler the right of pre-emption was not intended to give him the benefit of another man's labor, and authorize him to turn that man and his family out of their home. It did not propose to give its bounty to settlements obtained by violence at the expense of others. The right to make a settlement was to be exercised on unsettled land; to make improvements on unimproved land. To erect a dwelling-house did not mean to seize some other man's dwelling. It had reference to vacant land, to unimproved land; and it would have shocked the moral sense of the men who passed these laws, if they had supposed that they had extended an invitation to the pioneer population to acquire inchoate rights to the public lands by trespass, by violence, by robbery, by acts leading to homicides, and other crimes of less moral turpitude.

See also Christian v. Strentzel, 7 L. D., 68; Turner v. Bumgardner, 5 L. D., 377; and Roberts et al. v. Gordon, 14 L. D. 475.

It is urged by counsel that this entry should be confirmed under the seventh section of the act of March 3, 1891. I do not think it is confirmed under that act, for the reason that the entry was a nullity in its inception and it does not therefore come within the meaning of the statute. Mee v. Hughart, 13 L. D., 484; United States v. Smith, id.,

533.

The great conflict in the testimony is in regard to the character of the land included in the purchase under the act of June 3, 1878 (20 Stat., 89). The witnesses on behalf of the government, at least those who claimed to have any knowledge of it, are uniformly of the opinion that the soil is good for agricultural purposes and the timber of no value, except for firewood, while those on the part of the defendant, are equally as positive that its only value is for the timber. I think, however, that a fair preponderance of the testimony shows that the land was not subject to entry as timber-land. It strikes me that the gov ernment's witnesses, by reason of their long and thorough acquaint

ance with the land, are better prepared to know the true condition than those who are, for the most part entirely unfamiliar with the lines, the character of the soil or the growth thereon, except by a casual observation or superficial examination; that by reason of their apparent disinterestedness and the fairness and impartiality with which the witnesses for the government give their testimony, it is entitled to more weight than that offered by the defendant, supported as it is almost entirely by the relatives of himself and wife.

Your decision is therefore reversed and you will cause said entries to be canceled. You will, also, inform the Commissioner of Indian Af fairs of this decision.

PEREIRA v. JACKS.

Motion for review of departmental decision of September 8, 1892, 15 L. D., 273, denied by Secretary Noble, March 2, 1893.

RAILROAD GRANT-ADJUSTMENT.

FLORIDA CENTRAL AND PENINSULAR R. R. Co.

The right to the grant conferred by act of May 17, 1856, has not been forfeited by any act of the Florida R. R. Co., or its successors, and the State of Florida has by no act of its legislature denied to said company the benefits of said grant, but has through its executive recognized the rights of said company thereunder, and it is therefore incumbent upon the Department under the act of March 3, 1887, in the absence of any Congressional action looking toward forfeiture, to proceed with the adjustment of said grant, though the road was not constructed within the time fixed therefor.

Secretary Noble to the Commissioner of the General Land Office, March 2, 1893.

Referring to my letter of February 15, 1893, returning to your office, with my approval, clear list No. 3 of lands within the Gainesville land district, Florida, selected on account of the grant made by the act of May 17, 1856, to aid in the construction of a railroad" from Amelia Island on the Atlantic to the waters of Tampa Bay, with a branch to Cedar Keys on the Gulf of Mexico," which road is now known as the Florida Central and Peninsular Railroad Company, I have deemed it proper to submit for your information the reasons that prompted the decision and action of the Department in said matter.

On March 16, 1891, I addressed you a letter stating that the Department was in receipt of a communication from Mr. Wayne Mac Veagh, complaining of the delay in the adjustment of said grant, in which I stated that I had not taken action thereon for the following reasons: 1st. That Senator Call, of Florida, has been urging upon the consideration of Congress for several years a forfeiture of this grant;

2d. The possibility that Congress might take some action looking to a forfeiture thereof.

It appearing that it was not the policy of Congress to forfeit any land grants where the road had been constructed, although built out of time, I could see no necessity for further delay in the adjustment of this grant, under the provisions of the act of March 3, 1887, and directed that, unless some reason existed why such adjustment should not be proceeded with, you will prepare a clear list of the pending selections of said company and present it for my approval.

At the time such instructions were given, there was pending before the Department a motion filed by Senator Call for review of the decision of Secretary Schurz ofJanuary 28, 1881, in the matter of the reservation of lands granted to the State of Florida, under the act of May 17, 1856, for the construction of a road from Amelia Island to Tampa Bay, and Cedar Keys.

The effect of these instructions was to deny said application, no sufficient reason being shown why the decision of Secretary Schurz, which had been affirmed by Secretaries Teller and Lamar, should be disturbed.

Said decision of Secretary Schurz held, that a map showing the definite location of said road from the junction of the Cedar Keys branch, at Waldo, to the waters of Tampa Bay, was filed in the Department December 14, 1860, and within the time required by the act for the construction of the road, all other portions of the road having been previously exhibited by maps filed in and recognized by the Department. By this decision the Commissioner of the General Land Office was directed to make the necessary withdrawal of lands to protect the rights of the company and to secure the proper adjustment of the grant upon the line designated. It was made upon the application of the Atlantic, Gulf and West India Transit Company, formerly the Florida Railroad Company, for a review of the decision of Secretary Chandler of April 29, 1876, rejecting the claim for a withdrawal of lands and the recognition of the rights of said company under the act of May 17, 1856. Secretary Chandler held that no map showing the definite location of the road from Waldo to Tampa Bay had ever been filed in the Department, and the failure of the company to perform this important act within a reasonable time after the date of the grant should be taken as conclusive evidence of the abandonment of the grant.

It was urged by Senator Call, in support of his application, that the action of Secretary Chandler in this matter was binding upon his successors, and could not be revoked by Secretary Schurz, and that if it was competent for Secretary Schurz to reverse the decision of Secretary Chandler, it was equally competent for any subsequent Secretary to reverse the decision of Secretary Schurz.

The company resisted this application, upon the ground that it was clearly shown that the map of definite location of the entire road had been filed in the Department, and the greater part of the road com

pleted long prior to the expiration of the time allowed for the completion of the road. It requested the Department to proceed with the adjustment of the grant in accordance with said decision.

In passing upon this application Secretary Lamar, in an elaborate opinion in which all the issues were carefully presented (5 L. D., 107), concurred in the ruling of Secretary Schurz-which had also been concurred in by Secretary Teller in his decision of January 30, 1884,—that the map of definite location was filed by the Florida Railroad Company within the time required, and it was held that, under the facts presented, Secretary Schurz had the right to entertain jurisdiction of the subject; but he declined to direct the Commissioner to proceed with the adjustment of the grant, because proceedings were then pending in Congress looking to the forfeiture of said grant.

Congress having failed to provide for the forfeiture of this grant, the company, on March 7, 1887, again urged that the Commissioner of the General Land Office be directed to proceed without delay with the adjustment of said grant, and pending the consideration of this application, Senator Call again filed in the Department a request that no action be taken looking to the certification of lands to the Florida Railway and Navigation Company, upon the following grounds:

(1.) That no location was ever made under this grant within the lifetime of the grant, under any authority from the State, or its legislature, or its executive.

(2.) That no grant was ever made by the State of this land to the Florida Railway Company or its successors, or to any other company.

(3.) That none has ever been made up to this date.

(4.) That the State is is the grantee named in the act.

(5.) That no road has ever been built under the grant or upon the line of any survey made by authority of the State during the lifetime of the grant.

(6.) That the Supreme Court of the United States has in numerous cases decided that a location under a grant was a condition precedent to the vesting of any title. (7.) That the grant being for lands within six miles of either side of a road between certain designated points, that it could describe no land or line of road which was not built.

(8.) That no road has ever been built on any line of survey or location made by authority of the State under the grant of May 17, 1856.

(9.) That the State of Florida has, by continuous legislation since the year 1858, repeatedly denied to the Florida Railroad Company any of the benefits of this grant, and has granted a right of way and incorporated various other companies for the construction of a railway between Waldo and Tampa, giving, however, to none of them the benefit of the grant of May 17, 1856.

(10.) That the governor of Florida, M. S. Perry, in 1858, in his message to the legislature of Florida, officially declares that no survey and no location of any road had been made from Waldo to Tampa, and that he had refused to approve the location of the lands under the road then projected to be built by the Pensacola and Georgia Railroad Company to Pensacola.

This is the motion above referred to, the several grounds of which may be embraced under three general heads:

1: That no location of the road was made under proper authority, within the time required.

2: That no grant was made by the State of this land to the Florida Railroad Company, or its successors.

3: That the State of Florida has denied to the Florida Railroad Company the benefits of this grant, and has incorporated and granted to other roads the right of way between Waldo and Tampa, giving to none the benefits of the grant of May 17, 1856.

The first ground was fully settled and disposed of by Secretary Lamar's decision of August 30, 1886, re-affirming the decision of Secretary Teller, who by that decision re-affirmed the decision of Secretary Schurz, holding that a map of definite location of the whole line of road was filed in the General Land Office within the time required for the construction of the road. (See 2 L. D., 561; 5 L. D., 107, and Ex. Doc. in record, page 12.)

It is further alleged by Senator Call "that no grant was made by the State of this land to the Florida Railroad Company, or its successors."

This question was also considered by Secretaries Lamar and Teller, in the decisions above referred to, in which it was distinctly held that the benefits of the grant of May 17, 1856, was conferred by the State of Florida upon the Florida Railroad Company, whose rights and interests thereunder have been assigned and transferred, through its successors, to the Florida Railway and Navigation Company.

The act of January 6, 1855, known as the internal improvement act of the State of Florida, by section 4, provided for the building of certain roads, among which was one from Amelia Island on the Atlantic to the waters of Tampa Bay, in south Florida, with an extension to Cedar Keys, in east Florida. This was done in anticipation of a grant of lands from the United States for the purpose of aiding in the construction of said roads. (Ex. Doc., page 18.) Section 5 of said act then provides:

That the several railroads now organized or chartered by the legislature, or that may hereafter be chartered, any portion of whose route as authorized by their different charters and amendments thereto shall be within the line or routes laid down in section four (4), shall have the right and privilege of constructing that part of the line embraced by their charter, on giving notice to the trustees of the internal improvement fund of their full acceptance of the provisions of this act, specifying the part of the route they propose to construct; and upon the refusal or neglect of any railroad company now organized to accept within six months from the passage of this act the provisions of the same, any other company duly authorized by law may undertake the construction of such part of the line as they may desire to make, and which may not be in progress of construction under a previous charter.

The Florida Railroad Company, which had previously been incorporated with authority to build a road from the Atlantic Ocean across the State to the Gulf of Mexico, accepted the provisions of said act March 6, 1855, within three months after the passage of said act. (Journal 1858, p. 72; Documents accompanying Governor's message.) By act of December 14, 1855, the charter of said company was amended,