It is clear that after the cancellation of the entry, the entryman has no right to the land that he can sell or dispose of. It is equally clear that on the cancellation of an entry under the conditions prescribed in the statute, a claim against the government for the repayment of the purchase money and fees and commissions is created, and the statute declares that said payment shall be made to the entryman or his heirs or assigns but it is clear that the statute contemplated as assigns only those who became such while the entryman had an interest in the land, or in other words assigns prior to the date of the cancellation of the entry. In the case under consideration there had been no sale of the land prior to the date of cancellation and the title at that date was in Hamilton, and as a consequence she was and is the holder of the claim against the government for the repayment of the purchase money. Under the provisions of section 3477, Revised Statutes, this claim in its present condition, could not be transferred.

In the case now before me, I am satisfied, upon further consideration, that repayment should not be made to the present applicant, but that the only party qualified under the statute to make the application is the one in whom the title was vested at the date of the cancellation of the entry, or her heirs.

I would request that you return the case to this Department in order that proper disposition of the same may be made.

RIGHT OF WAY-STATION GROUNDS.

BUSK TUNNEL RAILWAY Co.

A plat of station grounds will not be approved where said grounds are so located as to exclude access to public lands not included therein.

Secretary Noble to the Commissioner of the General Land Office, January 28, 1892.

I have at hand the letter of the 19th instant from the Acting Commissioner of the General Land Office, submitting, and recommending the approval of, a plat filed by the Busk Tunnel Railway Company under the provisions of the right of way act of March 3, 1875, showing a tract of twenty acres of land in Colorado selected for station purposes. The line of the road of this company, where the tract in question is located, runs in close proximity to that of the Colorado Midland Railway Company. It also runs to and along the shore of Lake Ivanhoe. The selection is so made that in connection with the lake shore, the right of way of the Colorado Midland Railway Company and its own right of way the company inclose several tracts of public land. Access to these tracts can be gained only by crossing right of way already granted or by water communication.

The approval of this plat would, therefore, practically secure to the

company the use of lands additional to the proposed station grounds without authority of law and by the quasi countenance of the Department. It would virtually place an obstruction in the way of the acquisition of these tracts of public lands, by those so inclined, neither contemplated nor permissible under the right of way act nor under the general land laws.

I do not deem it proper to contribute to such results and return the plat herewith unapproved.

My present action is in harmony with that taken on the plat filed by the Continental Railway and Telegraph Company and returned to you without approval with letter of July 31, 1891, 13 L. D. 111.

RAILROAD GRANT-RELINQUISHMENT-ACT OF JUNE 15, 1880. FLORIDA CENTRAL AND PENINSULAR R. R. Co. v. CARTER.

The relinquishment of June 25, 1881, filed by the grantee under the act of May 17, 1856, was for the benefit of bona fide settlers, and an entryman who in fact never effected a settlement is not entitled to invoke the protection of said relinquish

ment.

The right of purchase under section 2, act of June 15, 1880, extends only to entries of land "properly subject to such entry," and does not include an entry of land previously withdrawn in aid of a railroad grant.

Secretary Noble to the Commissioner of the General Land Office, January 27, 1892.

I have considered the appeal by the Florida Central and Peninsular Railroad Company from your decision of April 28, 1890, rejecting its claim to lots 11 and 12, Sec. 7, T. 12 S., R. 23 E., Gainesville land district, Florida.

The facts in the present case are as follows:

On October 23, 1876, Stephen D. Carter made homestead entry No. 4225, for the above described tract, which entry was canceled November 21, 1885, for failure to make proof within the time limited by law. On December 4, 1885, he was permitted, however, to purchase the land under the second section of the act of June 15, 1880 (21 Stat., 237), and cash certificate No. 10,831 was issued upon such purchase. Your decision appealed from holds as follows:

Said company's relinquishment "in favor of all actual bona fide settlers who made improvements prior to the 16th day of March, 1881," protects the homestead entry of Mr. Carter, inasmuch as it appears to have been properly allowed and was of record and prima facie valid at the date of such relinquishment.

This tract is within the primary limits of the grant to the State of Florida under the act of May 17, 1856 (11 Stat., 15), 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 Key, on the Gulf of Mexico," under which the appellant lays claim to this land.

On December 14, 1860, a map showing the location of this road was filed in your office, which map was returned for the purpose of procur ing and attaching thereto the certificate of the governor of Florida, as evidence that it was filed by authority of the State.

This map was never re-filed, but a duplicate map was approved by Mr. Secretary Schurz, by his decision of January 28, 1881, and the order of withdrawal, directed in the same decision, was made March 16, 1881, and received at the local office the 26th of that month.

The question as to the effect of the filing of the map of 1860 was considered by Mr. Secretary Teller (2 L. D., 561), where it was held that said map "was valid and sufficient to fix and locate definitely the line of the road, and to bring home to the Interior Department notice of such location," and "that a legislative withdrawal followed the filing of that map. Van Wyck v. Knevals, 106 U. S., 360.”

It will therefore be seen that this tract was withdrawn from entry on December 14, 1860, and as the grant was never forfeited, it could not thereafter be entered without permission or license from the company.

It is unnecessary to here recite all the facts and circumstances leading to the execution of certain general relinquishments, in favor of actual settlers, by the railroad companies claiming this grant through the State; suffice it to say that two such relinquishments have been filed. The first, dated April 1, 1876, was of such lands "as may be found by the general land department at Washington to be occupied by actual settlers who may be entitled to equitable relief up to Decem ber 13, 1875." The second, dated June 25, 1881, is as follows:

In due consideration of all the circumstances, the company has decided to extend the relinquishment or waiver heretofore made to actual bona fide settlers who made improvements prior to the 16th day of March, 1881, upon which day your instructions were issued to the local land office. The Department can accordingly apply this waiver or relinquishment in its action upon the cases of all such actual settlers who shall have entitled themselves to patents.

From the above it is apparent that Carter was not included in the first relinquishment; hence, at the date of his entry, October 23, 1876, there was no authority for the allowance of the same, and the mere fact that, at this time, the rights of the company under its location of 1860 were disregarded, does not affect the position above stated.

The second section of the act of June 15, 1880 (supra), provides: That persons who have heretofore under any of the homestead laws entered lands properly subject to such entry .. may entitle themselves to said lands by paying the government price therefor.

The condition upon which this privilege is given is, that the lands at the date of the entry were "properly subject to such entry."

This was not the condition here, and I am therefore of the opinion that the allowance of the purchase under said act was error, and that the same should be canceled.

As to the effect of the relinquishment, executed by the company

1881, upon its claim to this land, I am of the opinion that had Carter been a bona fide settler, the same would have been effective in his favor; but, from his own statement, he did not live upon the land, merely having it cultivated for one year, and with the cancellation of his entry any claim, as against the grant, was at an end. In other words, the relinquishment of 1881 did not include Carter's entry.

This is not in conflict with the holding in the case of the Northern Pacific Railroad Company v. Munsell (9 L. D., 237), wherein it was held that a relinquishment under the act of June 22, 1874 (18 Stat., 194), relieves the land included therein from all claim on the part of the railroad company.

In that case but one tract was described, and by such description the relinquishment became absolute, as it was made by the company with a knowledge of the status of the land therein described.

Here the relinquishment, or waiver, is general, and the character of the claims included is clearly described. It must therefore first be shown that the condition exists, before it can be held that the relinquishment applies.

The statement by Carter, before referred to, relative to his settlement upon this tract was made in response to a call from your office for a corroborated affidavit by Carter showing date of settlement, duration of residence, nature and extent of improvements and cultivation, and entire connection with the land. As against Carter, I am of the opinion that he would be bound thereby, but it is not my intention to make such an award of this land, as will preclude any other person, claiming an interest therein, from showing by competent evidence that Carter's claim was such as would be protected by the relinquishment of the company..

Your decision is accordingly reversed.

MINING CLAIM-NOTICE-RIGHT OF WAY ACT.

EUGENE MCCARTHY.

The published notice of application is sufficiently definite, in the matter of showing the connection of a mining claim with the public survey, where it identifies said claim by connecting the same with a corner of a patented townsite, which is also the corner of a patented placer claim, both of which are connected with a United States mineral monument.

A mining claim in conflict with a prior grant to a railroad company for station purposes may pass to patent subject, however, to the right of occupancy by the company as to the part in conflict.

Secretary Noble to the Commissioner of the General Land Office, January

27, 1892.

On October 27, 1885, Eugene McCarthy and Knut. Benson located the Kendall Mountain Placer Claim on unsurveyed land in Animas mining district, San Juan county, Colorado, containing 27.96 acres,

which was recorded November 2, 1885, in book D 1. page 375, of the records of said county. On February 13, 1886, said Benson conveyed his interest in said claim to said McCarthy.

On March 30, 1886, said McCarthy made application at the Durango land office for a patent for said claim.

The register ordered the following notice of said application to be published in a weekly newspaper for ten consecutive weeks, beginning April 3, 1886, and ending June 5, 1886, which was so published in the "Silverton Democrat"

Mining application, No. 587.

UNITED STATES LAND OFFICE,
Durango, Colo., March 30, 1886.

Notice is hereby given that Eugene McCarthy, whose post-office address is Silverton, San Juan county, Colorado, has this day filed his application for a patent for the Kendall Mountain Placer claim, situated in Animas mining district, San Juan county, Colorado, and known and designated by the field notes and official plat on file in this office as Lot No. 2468 on the unsurveyed domain, and being more particularly described as follows, to wit:

Beginning at Cor. No. 1 a post marked 1x2468, whence Kendall mountain bears S 34° 12' E, Bear mountain bears S 73° 40′ W, Red peak bears N 33° 40′ W., cor. No. 11 townsite of Silverton, which is also cor. No. 6, survey No. 601 Clemmons, et al. placer bears S 390 5′ W. 352 ft. Thence-Var. 14° 35' E.-S 39° 5' W. 1100 feet to cor. No. 2, a post marked 2x2468. Thence S 58° 20' E. 1010 ft. to cor. No. 3, a post marked 3x2468. Thence N 34° 6' E, 1460 ft. to cor. No. 4, a post marked 4x2468. Thence N 79° 55′ W, 1000 ft. to place of beginning.

Area-containing 27.96 acres.

Said Kendall Mountain Placer claim is recorded in Book D 1 page 375 of the records of San Juan county, Colorado.

Adjoining claims, Silverton townsite and survey No. 601 Clemmons et al. placer, Charles C. Clemmons, et al., claimants.

First publication, April 3, 1886.

Last publication, June 5, 1886.

D. L. SHEETS, Register.

No adverse claim was filed and said placer claim was entered July 14, 1886 (mineral entry No. 513), and final receipt and certificate were issued to said McCarthy for said claim, designated as lot No. 2468.

On July 23, 1886, the Denver and Rio Grande Railroad Company filed a protest against the issuance of a patent to said applicant for so much of said placer claim "bounded and described in United States survey No. 2468 as is included within the following limits, to wit":

Beginning at corner No. 2 of the Kendall Mountain Placer (U. S. Survey No. 2468) near Silverton; thence S 58° 20′ E.along the southerly side of said placer a distance of 165 feet, more or less, to an intersection with the easterly line of the Denver and Rio Grande Railroad depot grounds; thence northeasterly along said line of depot grounds a distance of 715 feet, more or less, to an oak post at the northeast corner of said depot grounds; thence northwesterly 164.59 feet to the northeast corner of Silverton townsite, said corner being on the line between corners No. 1 and No. 2 of aforesaid Kendall Mountain Placer, and 352 feet southwesterly from corner No. 1 thereof; thence S 39° 05′ W. along said line between corners No. 1 and No. 2 a distance of 748 feet, more or less, to the place of beginning; containing 2.72 acres, more or less.