Said protest is based upon the ground that said company is the owner and possessor of said 2.72 acres, as part of twenty acres claimed by said company for station and depot purposes, under the act of Congress of June 8, 1872 (17 Stat., 339), granting to said company a "right of way over the public domain," together with such public lands adjacent thereto as might be needed for station purposes, "not exceeding twenty acres at any one station."

The papers were transmitted to your office.

By your letter of December 27, 1888, to the local officers, you hold that as the plat and field notes of the survey of said placer claim describe the claim as being connected with the United States Silverton locating monument, by a line from a corner of said claim, which is omitted from said published notice, the latter is insufficient to put parties on their guard who might desire to file adverse claims, and you directed a republication and posting of an amended notice. You also held that "as said placer claim was not located until October 27, 1885, more than two years after the copy of the station plat was received at your office, the land was clearly subject to the right of occupation for station purposes." You also directed that claimant be notified of his right of appeal.

An appeal was filed in the local office April 22, 1890, by C. M. Frazier, as attorney for the claimant.

The specifications of error allege that said decision is erroneous, among other reasons, because,

1st-That said Kendall Mountain Placer claim is tied to corner No. 11, townsite of Silverton, and

2nd-It is tied to corner No. 6 of the Clemmons et al. placer claim; both of which are patented and tied to the U. S. government monument, for this reason, the claim is connected with certain corners of the townsite of Silverton, Colo., and the Clemmons et al., placer, which corners are themselves connected by course and distance to U. S. mineral monument.

By your letter of May 5, 1890, you declined to entertain said appeal, and held said entry for cancellation. An appeal from this decision was duly taken and the case is now brought before me, and all questions arising upon the whole record can now be determined upon their merits. The principal question in the case is whether or not the published notice sufficiently described the placer claim to comply with the law and regulations. Section 2325, Revised Statutes of the United States, requires the claimant of a mining claim to file with the register a certificate of the surveyor-general "that the plat is correct, with such further description by such reference to natural objects, or permanent monuments, as shall identify the claim, and furnish an accurate description to be incorporated in the patent," and the register is directed to "publish a notice that such application has been made."

The object of publishing a notice is to afford all parties claiming adversely an opportunity to present their claims, and therefore the notice should sufficiently "identify" the claim for that purpose.

With this end in view the regulations of the Department (Mining Circular 1889, page 22, Sec. 43) require the surveyor-general to describe the locus of the claim with reference to the lines of public surveys by a line connecting a corner of the claim with the nearest public corner of the United States surveys, unless such claim be on unsurveyed lands at a remote distance from such public corner, in which latter case the reference by course and distance to permanent objects in the neighborhood will be a sufficient designation by which to fix the locus until the public surveys shall have been closed upon its boundaries.

In this case the claim was connected to a corner of a townsite, which was also a corner of a placer claim, both of which were patented and connected with a United States mineral monument. Was such a connection sufficient to "identify" the claim?

In Alta Mill Site (8 L. D., 195), it was held that the survey of the mill site need not be connected with a mineral monument, or corner of the public surveys, if connection be shown with the lode claimed in conjunction therewith. Such secondary connection of the mill-site

through the survey of the mining claim was held sufficient in law.

It appears by the report of the deputy surveyor-general on file in the papers of this case, that "The natural center of trade is the town of Silverton, a place of fifteen hundred inhabitants, which adjoins this claim on the west."

In case of the Emperor Wilhelm Lode (5 L. D., 685), the survey of the claim was connected with a corner of the George M. Tibbets lode, and bounded by the Wyoming lode southwesterly, and it was said "It does not appear that the Wyoming lode ever went to entry, and the George M. Tibbets lode was not patented until March 6, 1884," or after the notice which was given December 26, 1882. Here the implication is that if the Tibbets lode had been patented when the notice was given it would have been sufficient.

Surveys of townsites and mining claims are made under public authority by virtue of acts of Congress, and are therefore official surveys of the United States, and certainly when they are patented, such surveys are an official part of the patents and may then be said to be public surveys of the United States, within the contemplation of the law requiring the survey of mining claims to be connected with such "public surveys."

A survey of a mining claim is "incorporated" in the patent by law. It is then finally and permanently fixed and determined beyond possibility of alteration. The patent is a quit-claim deed from the United States, and is recorded upon its public records, and is notice to the world of all it contains. The same is true of a patent of a townsite.

In this case the protestant recognizes the survey of this placer claim as a legal survey, and bases the survey of said 2.72 acres upon it, and there is no pretense that any one was misled by the notice, or prejudiced by the omission of the notice to refer to the Silverton monument. The notice refers to Kendall mountain and Bear mountain, which are natural monuments, and states that the claim adjoins the Silverton

townsite and the Clemmons placer, and connects the survey to a corner of both which would naturally be a well-known corner in that neighborhood. The omission, if there was one, was technical rather than material, and was that of the register, for which the claimant is not responsible, and as his good faith is apparent, and he has complied with the law, he should not be put to the expense and delay of a new publication and posting of an amended notice.

The grant to the railroad company referred to in the protest was a grant in presenti, subject to the limitations mentioned in said act. The supreme court held in Railroad Company v. Baldwin (103 U. S., 426, 430), in relation to a similar grant, as follows:

We are of opinion, therefore, that all persons acquiring any portion of the public lands, after the passage of the act in question, took the same subject to the right of way conferred by it for the proposed road.

The question arises what is the extent of the right of way granted in this case? It is alleged in the protest that the railroad company "is the legal owner" of the 2.72 acres in dispute. But there is no foundation for this contention. On the contrary, the mineral claimant "is the legal owner" of the fee of the land, subject only to the easement in favor of the company for the particular use and occupation specified in the grant. The language of the act is,

That the right of way over the public domain, one hundred feet in width on each side of the tract, together with such public lands adjacent thereto as may be needed for depots, shops, and other buildings for railroad purposes, and for yard room and side tracks, not exceeding twenty acres at any one station ... be, and the same are hereby, granted and confirmed unto the Denver and Rio Grande Railway Company.

It is evident that this is a grant of a right of way to said Company over so much of the twenty acres "as may be needed" for the purposes specified. The company, under these limitations in its grant, is not authorized to use the twenty acres for any other business or purpose than as above specified, and this use is to be measured by its "need." If the land in dispute is not "needed" by the Company for the specified purposes, then the mineral claimant can mine the soil and take therefrom the minerals which belong to him, without infringing upon the grant to the company. If the company does not actually use the land in dispute for station purposes, then it will be presumed not to "need" it, and so long as this non-user continues the mineral claimant can use it for any purpose he pleases, provided he does not thereby interfere with any present or prospective use that may be needed by the company. If the company should at any time abandon the occupancy of the land, or should its right of way be lost or destroyed, the title of the mineral claimant thereto would become free and unrestricted.

In the Kansas Central Railway Company v. Allen (22 Kansas, 285, 293), it is said that the proprietor of the soil, over which the railroad company has an easement, "retains the fee of the land, and his right to

the land for every purpose not incompatible with the rights of the railroad company. Upon the discontinuance or abandonment of the right of way, the entire and exclusive property and right of enjoyment revest in the proprietor of the soil." Upon page 295 it is further said,—

It is our opinion that it is a question of fact, not of law, whether the necessities of the railroad demand exclusive occupancy for its purposes, and what use of the property by the owner is a detriment to, or inteference with, the rights of the road. And this question of fact, if it should ever arise, would have to be determined by the courts.

The protest alleges that

at the time the said land was located upon and selected by said Denver and Rio Grande Railway Company, and approved and set apart by the United States for said company by the Honorable Secretary of the Interior, the same was not known to be valuable for minerals.

This allegation is substantially found to be true in your letter of December 27, 1888, in which you say,

As said placer claim was not located until October 27, 1885, more than two years after the copy of the station plat was received at your office, the land was clearly subject to the right of occupation for station purposes.

It is said, in Railway Company v. Alling (99 U. S. 463, 475),

The intention of Congress was to grant to the company a beneficial easement in the particular way over which the designated routes lay, capable, however, of enjoyment only when the way granted was actually located, and in good faith appropriated for purposes contemplated by the charter of the company, and the act of Congress. When such location and appropriation were made, the title, which was previously imperfect, acquired precision, and by relation took effect as of the date of the grant.

The mineral claimant must therefore take the land in dispute (2.72 acres) subject to the right of occupation by said company for station purposes. It was held in Dakota Central Railroad Company v. Downey (8 L. D., 115, 120), that any patent granted "which should include a portion of this grant to the railroad company, must therefore be subject to that grant, because the grant is already perfect and complete."

Patent may issue to said McCarthy therefore for said placer claim, but subject, as to that part in conflict, to the right of occupation by said company for station purposes.

Your judgment is modified accordingly.

RAILROAD GRANT-INDEMNITY-SELECTION-FINAL PROOF.

SOUTHERN PACIFIC R. R. Co. v. STILLMAN.

A timber culture entry of land withdrawn for indemnity purposes is no bar to the company's right of selection if exercised before the revocation of the withdrawal becomes effective.

An entry should not be allowed of land while a case involving the right thereto is pending on appeal.

Special notice of intention to submit final proof should be given a railroad company where the land is embraced within a pending indemnity selection.

An entry, though irregularly allowed, should not be canceled without giving the entryman an opportunity to be heard in its defense.

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

I have considered the case of the Southern Pacific Railroad Company r. Edith A. Stillman on appeal by the former from your decision of April 22, 1890 rejecting its application to select as indemnity the SW of Sec. 5, T. 17 S., R. 16 E., M. D. M., Visalia, California, land district.

This tract is within the indemnity limits of the grant of July 27, 1866, (14 Stat., 292) to the Southern Pacific Railroad Company, and is within the limits of the withdrawal of March 19, 1867.

On March 24, 1887, while said order of withdrawal was still in force, one George Herring was allowed to make timber culture entry for said tract of land. The order of withdrawal was revoked by order of August 15, 1887 (6 L. D., 92) it being said:

The order of revocation herein directed shall take effect as soon as issued, but filings and entries of the lands embraced therein shall not be received until after giving notice of the same by public advertisement for a period of thirty days, it being the intention of this order that, as against actual settlement hereafter made, the orders of the Department withdrawing said lands shall no longer be an obstacle. Rights heretofore attaching both of the company and of settlers, will be decided according to the facts in each case.

Notice was given under this order fixing November 16, 1887, as the day on which filings and entries might be made for lands within the limits of such withdrawal.

In the meantime, on October 4, the railroad company had presented its application to make selection of the tract here in question as indemnity. This application was rejected by the local officers, on the ground that the existence of Herring's entry prevented such selection, from which action the company appealed. While this appeal was pending undetermined in your office, Herring's entry was, on March 2, 1888, canceled, but whether on voluntary relinquishment or for other reason is not shown by the papers now before me, and on the same day Edith A. Stillman was allowed to make homestead entry for the land. Afterwards, and while the case was still pending in your office, she was allowed to submit final commutation proof without giving special notice