mineral applicant may procure a reconveyance of the tract by the townsites to the United States, together with proper abstract of title show. ing that the tract has not been previously disposed of by said townsites. If the conveyance be made you will readjudicate the claim of Pederson; if not, you will transmit the papers to this Department.

From the showing made at the hearing, there can be no doubt but that the mine in this case was known to exist and capable of being profitably worked for its product long before and at the dates upon which the townsites applied for their patents. Your judgment is accordingly modified.

RAILROAD GRANT-CONFLICTING LIMITS-FORFEITURE.

OREGON AND, CALIFORNIA R. R. Co.

The grant of the odd numbered sections within the over-lapping primary limits of the Northern Pacific, and Oregon and California roads, east of Portland, Oregon, was for the benefit of the former company under the act of July 2, 1864, and the forfeiture thereof by the act of September 29, 1890, is to the extent of the withdrawal made under the sixth section of the act of 1864; and under said act of forfeiture no rights of the Oregon and California road are recognized within said conflicting limits.

Secretary Noble to the Commissioner of the General Land Office, February 17, 1892.

I have considered the protest filed on behalf of the Oregon and California Railroad Company, against so much of the instructions issued by your office, under the forfeiture act of September 29, 1890 (26 Stat., 496), as relates to the lands falling within the conflict, or overlap, of the grants for the Northern Pacific and Oregon and California Railroad Companies, east of Portland, Oregon.

By the act of Congress approved July 2, 1864 (13 Stat., 365), a grant was made to the Northern Pacific Railroad Company, to aid in the construction of a railroad from a point on Lake Superior, in the State of Minnesota, or Wisconsin, westwardly by the most eligible route, to be determined by the company, on a line north of the 45th degree of latitude, to some point on Puget Sound, with a branch via the valley of the Columbia river, to some point at or near Portland, in the State of Oregon.

The joint resolution of May 31, 1870 (16 Stat., 378), authorized the company to locate and construct "its main line to some point on Puget Sound via the valley of the Columbia river, with the right to locate and construct its branch from some convenient point on its main trunk line across the Cascade mountains to Puget Sound."

It will be seen that the effect of said resolution was to change the branch to main line, and vice versa, and also to provide for a land grant

for the new line-viz: a connecting piece between Portland, Oregon, and Puget Sound.

The location of the road, as shown upon the map of general route filed and accepted August 13, 1870, follows the Columbia river from Wallula, Washington, to a point on the north side of the river just op posite to Portland, Oregon. Between Wallula, Washington, and Portland, Oregon, the road was not constructed, and, hence, comes within the terms of the first section of the forfeiture act, before referred to, which provides:

That there is hereby forfeited to the United States, and the United States hereby resumes the title thereto, all lands heretofore granted to any State or to any corporation to aid in the construction of a railroad opposite to and conterminous with the portion of any such railroad not now completed, and in operation, for the construction or benefit of which such lands were granted; and all such lands are declared to be a part of the public domain: Provided, That this act shall not be construed as forfeiting the right of way or station grounds of any railroad company heretofore granted.

The protestant claims under the act of Congress approved July 25, 1866 (14 Stat., 239), which provided for the building of a road from Portland, Oregon, to the south boundary of Oregon to connect with the California and Oregon Railroad, and made a grant of "every alternate section of public land, not mineral, designated by odd numbers, to the amount of twenty alternate sections per mile (ten on each side) of said railroad." It further provided:

and when any of said alternate sections or parts of sections shall be found to have been granted, sold, reserved. occupied by homestead settlers, pre-empted, or otherwise disposed of, other lands designated as aforesaid shall be selected by said companies in lieu thereof, under the direction of the Secretary of the Interior, in alternate sections designated by odd numbers, as aforesaid, nearest to and not more than ten miles beyond the limits of said first-named alternate sections.

The Oregon and California Railroad Company filed a map of definite location of its road opposite this land October 29, 1869, which was accepted by this Department January 29, 1870, upon which withdrawal was ordered, and the road was duly built opposite these lands within the time limited by law for the construction of the road.

Under the rulings in force in the administration of land grants, in this Department, prior to 1878, it was held that priority of location gave priority of right to lands within conflicting limits, and a large number of tracts were patented to the Oregon and California Railroad Company, within the conflict now under consideration.

In your instructions to the register and receiver at Oregon City, Oregon, dated January 19, 1891 (not reported), under the forfeiture act, it was held by you that, east of Portland, Oregon, the grant for the Northern Pacific Railroad Company is under the act of July 2, 1864 (supra), which being prior to the act making the grant for the Oregon and California Railroad Company, it follows that the lands embraced within the withdrawal under the 6th section of the act of 1864 were excepted

from the later grant, and by the forfeiture act said lands were restored to the public domain.

The principal grounds on which the protest on behalf of the Oregon and California Railroad Company is based are as follows:

The Northern Pacific received its authority of law to locate its main line to Portland by the joint resolution of 31st May, 1870, and filed a map of general route 13th August, 1870. It never made a definite location opposite this place where the conflict under discussion exists, and though in the general sense of the forfeiture act of 1890 that company had a grant of lands on that general route, that grant not having been definitely located, it could not now be held that it ever took effect by relation as of the date of the grant, whether the date of the grant be July 2, 1864, or May 31, 1870.

It is further claimed that the joint resolution of 1870 was substantially a new grant of lands within limits to the extent mentioned in the charter of the company, and excepted therefrom lands included in grants made subsequent to July 2, 1864, and prior to the definite location of the road.

As stated by the company, "The Northern Pacific Company was thus provided with indemnity therefor, if it lost lands because of the grant to the Oregon and California Company which Congress intended to recognize."

It is first necessary to determine which is the prior grant within the conflict referred to, for within conflicting limits neither priority of location nor priority of construction gives priority of right, but in each case the respective rights are determined as of the dates of the acts making the grants. Missouri, Kansas and Texas Railroad Company v. Kansas Pacific Railroad Company, 97 U. S., 491; St. Paul and Sioux City R. R. Co. v. Winona and St. Peter R. R. Co., 112 U. S. 720. It is true that in these cases the roads had been definitely located, but it would seem that the reasoning in said cases applies with equal force to the matter under consideration.

It will be remembered that the act of July 2, 1864 (supra), provided for the construction, by the Northern Pacific Railroad Company, of a branch line via the valley of the Columbia river to some point at or near Portland, Oregon.

In March, 1865, the president of said company filed in this Department a map of general route of the entire line of the road, showing a location down the Columbia river to a point opposite Portland, and thence north to Puget Sound, and asked that a withdrawal be ordered thereon, which was refused, the same being deemed insufficient.

As held by Attorney General Garland, in his opinion of January 17, 1888 (8 L. D., 14), "the map thus filed accomplished no good purpose for the company, but afforded the public a general knowledge of probable location of the prospective road."

This was the condition of affairs at the date of the passage of the act of 1866, making the grant for the Oregon and California Company. The act of 1864 made the location of the grant therein provided for,

in this vicinity, reasonably certain, and the location of 1865 imparted additional information upon the subject.

The joint resolution of 1870 merely changed the name of this part of the line, by designating it as the main line, instead of the branch line, but the grant remained under the act of 1864, and the map of general route filed in August, 1870, being accepted by this Department, with drew the lands under the 6th section of the act of 1864. The section provides:

That the President of the United States shall cause the lands to be surveyed for forty miles in width on both sides of the entire line of said road, after the general route shall be fixed, and as fast as may be required in the construction of said railroad; and the odd sections of land hereby granted shall not be liable to sale, or entry, or pre-emption, before or after they are surveyed, except by said company, as provided in this act.

It is true that the Northern Pacific Railroad was never definitely located opposite this land, but in view of the requirement in both acts prescribing that the road was to be built via the valley of the Columbia river, and of the provision in the sixth section of the act of 1864, that the general route shall be fixed, it would seem that the location of 1870 fixed this grant as against the location upon any other grant subsequent in date to the act of 1864.

In the forfeiture act special provision was made for the disposition of the forfeited lands lying south of the present terminal at Wallula, Washington, and north of what is known as the "Harrison line." When it is remembered that these lands are opposite that portion of the road not definitely located, it is apparent that Congress treated the lands embraced in the withdrawal on general route for this road as "granted lands," within the meaning of the forfeiture act.

As against the holding of your office, that a moiety of the lands within the conflict, or overlap, of the grants for the main and branch lines of the Northern Pacific Railroad, opposite the unconstructed por tion of the main line, was forfeited by the act of September 29, 1890 (supra), the Northern Pacific Railroad Company urged that the main line had not been definitely located between Wallula and Portland. In answer to this contention, it was held (11 L. D., 625),

In the first place, there was a grant along said route, which lacked only action on the part of the company to consummate. Furthermore, a reading of the entire act leaves no room to doubt that a forfeiture along said stretch of the main line was contemplated, and the lands so forfeited are described in the first section of the act as 'granted lands.'

This applies with equal force in the present controversy, and having determined that the grant for the Northern Pacific Railroad Company, east of Portland, Oregon, is under the act of July 2, 1864 (supra), the forfeiture declared by the act of September 29, 1890 (supra), is to the extent of the withdrawal made under the 6th section of the act of 1864. It but remains to consider the question as to whether the exception

clause in the act making the Northern Pacific grant included grants to aid in the construction of other roads, made subsequent to the passage of said act and prior to the definite location of the road.

This question was considered by the Supreme Court in the case of the St. Paul and Pacific Railroad Company v. Northern Pacific Railroad Company (139 U. S., 1), and therein it was held,

We are of opinion that the exception in the act making the grant to the Northern Pacific Railroad Company was not intended to cover other grants for the construction of roads of a similar character, for this would be to embody a provision which would often be repugnant to and defeat the grant itself. Missouri, Kansas and Texas Railway v. Kansas Pacific Railway (97 U. S., 491, 498, 499).

It is clear, had the Northern Pacific Railroad been constructed through this conflict, its right would have been superior to that of the Oregon and California Railroad Company; hence, any claim the latter company may assert in and to these lands must rest upon the act declaring the forfeiture.

The 6th section of that act provides:

That no lands declared forfeited to the United States by this act shall by reason of such forfeiture inure to the benefit of any State or corporation to which lands may have been granted by Congress, except as herein otherwise provided.

I can find no provision in the act under which the Oregon and California Railroad Company would be entitled to these lands, but, on the contrary, the 5th section of the act provides:

That the rights of way and riparian rights heretofore attempted to be conveyed to the city of Portland, in the State of Oregon, by the Northern Pacific Railroad Company and the Central Trust Company of New York, by deed of. conveyance dated August eighth, eighteen hundred and eighty-six, and which are described as follows: A strip of land fifty feet in width, being twenty-five feet on each side of the center line of a water-pipe line, as the same is staked out and located, or as it shall be hereafter finally located according to the provisions of an act of the legislative assembly of the State of Oregon approved November twenty-fifth, eighteen hundred and eighty-five, providing for the means to supply the city of Portland with an abundance of good, pure, and wholesome water over and across the following described tracts of land: Sections nineteen and thirty-one in township one south, of range six east; sections twenty-five, thirty-one, thirty-three, and thirtyfive, in township one south, of range five east; sections three and five in township two south, of range five east; section one in township two south, of range four east; sections twenty-three, twenty-five, and thirty-five in township one south, of range four east, of the Willamette meridian, in the State of Oregon, forfeited by this act, are hereby confirmed unto the said city of Portland, in the State of Oregon, its successors and assigns forever, with the right to enter on the herein before described strip of land, over and across the above-described sections for the purpose of constructing, maintaining, and repairing a water-pipe line aforesaid.

This pipe-line traverses the entire conflict, and had Congress recognized any rights in the Oregon and California Railroad Company, within the conflict, the above provision would not only have been unnecessary, but in conflict with the rights of said company.

From a review of the entire matter, I can see no error in your instructions, and the same will be carried into effect, if heretofore sus