office decision in favor of the company, and has continued to reside thereon, while in the case cited, Berg had no prior connection with the land as a settler or applicant, but applied to make entry about a year after departmental decision giving the company the right to make selection. Moreover, in the case at bar Knudson's entry should not have been canceled by your office, unless within a limited time the company paid the required fees, thus completing its selection of the land.

In this view of the case, your office decision reinstating Knudson's entry is affirmed, and the company's attempted selection of the tract rejected.

TIMBER LAND ENTRY-EQUITABLE ACTION.
THERESA MCMANUS.

A timber land entry should not be allowed in the absence of a personal examination of the land by the purchaser; but an entry made without such examination may be referred to the Board of Equitable Adjudication if the defect is subsequently cured by the purchaser.

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) April 11, 1900.

(J. L. McC.)

Theresa McManus, on August 25, 1898, made timber-land entry for the S. W. of the S. E. of Sec. 13, T. 66 N., R. 19 W., Duluth land district, Minnesota.

On September 15, 1899, your office, upon examination of the final proof, suspended the same, directed the attention of the local officers to the fact that Miss McManus had failed to make a personal examination of the land, as required by the regulations of your office (see General Circular of July 11, 1899, page 46, paragraph 8), and instructed them to notify her that unless such requirements were complied with, within sixty days, said entry would be canceled.

On November 18, 1899, counsel for Miss McManus addressed a letter to your office, urging that said order of suspension be revoked, contending that the case was, in all essential respects, similar to that of Mary E. Gardner (16 L. D., 560), and directing attention to a number of cases in which entry had been allowed and the lands passed to patent, where the person making the entry had not personally made an examination of the land.

Your office, by letter of December 13, 1899, declined to revoke its order of September 15, 1899, supra, suspending the entry.

From this action Miss McManus has appealed, still insisting that the case is ruled by that of Mary E. Gardner, supra; and that patent should issue upon the proof already offered.

It appears that your office, on October 18, 1898, in a letter to the local officers at Duluth, directed their attention to the fact that a number of timber-land entries had been allowed in that district where

the applicants had failed to make personal examination of the land, and instructed them to require all parties thereafter to make such personal examination.

In Miss McManus's sworn statement, filed in the local office May 4, 1898, in the printed portion of the blank furnished by your office, the sentence, "I have personally examined said land, and from my personal knowledge state that said land is unfit for cultivation and chiefly valuable for its timber," was in part erased, and certain words interlined in manuscript, so that the sentence reads: "said land has been examined, and from such information and knowledge state that said land is unfit for cultivation," etc. From this it would appear that there was no falsehood on her part, or attempt to mislead the local officers, at the time of her making application to enter said land. It appears upon the face of her final proof that she frankly stated that she had never personally examined the land, and that the local officers, before whom said proof was made, nevertheless accepted the same and received her money in payment therefor. Said final proof and payment were made (August 25, 1898) prior to the date of your office instructions of October 18, 1898, to the local officers at Duluth, requiring personal examination thereafter. But that was not by any means the first time that such instructions had been given. The circular of instructions approved by the Department July 16, 1878, prescribed the lauguage of the sworn statement in part as follows (see Grace v. Carpenter, 14 L. D., 436-9):

That I have personally examined said land, and from my personal knowledge state that said land is unfit for cultivation and valuable chiefly for its timber.

Substantially the same instructions are given in the departmental circular of May 21, 1887, section 8:

The sworn statement before the register and receiver required as above (section 2 of the act), must be made upon the personal knowledge of applicant, except in the particulars in which the statute provides that the affidavit may be made upon information and belief.

See also Gen. Cir., Oct. 30, 1895, p. 45.

Notwithstanding these circulars, it appears that a practice had grown up in the Duluth office of allowing entries to be made without the applicant making affidavit that he or she had personally examined the land.

In the case of Mary E. Gardner, supra, it appeared in the record that "she did go on the land and examine it two weeks prior to making final proof." In the case at bar it does not appear that the applicant has ever made a personal examination of the land. The Department is of opinion that this is a statutory requirement, which can not be dispensed with. Your decision, in so far as it so holds, is therefore hereby affirmed. In case, however, Miss McManus shall hereafter, within a reasonable period, make such personal examination of the

land, it would appear that, in the absence of any adverse right, her claim would be entitled to consideration by the board of equitable adjudication.

The decision of your office is modified as herein indicated.

RAILROAD GRANT-NOTICE OF WITHDRAWAL-ACT OF APRIL 21, 1876. OKEGON AND CALIFORNIA R. R. Co. v. JONES (ON REVIEW). Section 1, act of April 21, 1876, providing for the protection of entries made prior to the time when notice of the withdrawal under a railroad grant is received at the local office, has no applicability where rights have heretofore vested under railroad grants, but establishes a new rule subject to the conditions of which such rights shall thereafter attach.

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) April 11, 1900,

(L. L. B.) Counsel for the Oregon and California Railroad Company have filed a motion for review of the case of said company against Charles E. Jones (29 L. D., 550), involving the N. NW. SE. 4, the SE. 4 NW. SE. 1, the NE. SW. SE. 1, the E. SE. 4, and the NE. † NE. SW. 4, Sec. 11, T. 39 S., R. 3 W., Roseburg, Oregon, land district. The land in controversy is within the primary limits of that portion of the grant made by the act of July 25, 1866 (14 Stat., 239), of which the Oregon and California Railroad Company became the beneficiary under the designation of the legislature of the State of Oregon. The line of road opposite thereto was definitely located September 6, 1883, on account of which an executive order of withdrawal was made by letter of October 27, 1883, received at the local office November 7, 1883. October 4, 1883, nearly a month after such definite location, but before notice thereof or of the withdrawal made on account thereof was received at the local office, William R. Buck filed pre-emption declaratory statement for the land in controversy, alleging settlement thereon on the second of that month.

July 6, 1886, Buck transmuted his pre-emption filing into a homestead entry, and August 24, of the same year, relinquished said entry, whereupon Charles E. Jones made homestead entry of the land. Jones afterward submitted proof of his compliance with the homestead law, upon which final certificate issued to him December 12, 1892.

The decision complained of sustained the entry of Jones as against the claim of the company.

The grounds stated in the motion are:

1. That upon the definite location of the road the title to said land absolutely vested in the railroad company and that Buck by his subsequent settlement and pre-emption filing could not defeat the title thus vested in the company.

2. That as the settlement and filing of Buck was illegal and void, the subsequent

homestead entry of Jones could confer no right on him because the land was not "unappropriated public lands" at the time of his application to make homestead entry, and his entry thereof was likewise illegal and void.

In the argument filed in support of the motion several decisions of the supreme court are cited, holding that the title of the company attached upon the filing of the map of definite location with the Secretary of the Interior. That this is the correct interpretation of the act creating this grant has not, it is believed, been seriously questioned by this department, since the decision in Van Wyck v. Knevals (106 U. S., 360), and certainly not in the decision sought to be reviewed.

The question adjudicated in the case at bar was as to the effect of the statute of April 21, 1876 (19 Stat., 35), upon the acts of Congress conferring grants in aid of railroads, and it was therein held that:

This act is in pari materia with the several railroad land grants, and section one thereof clearly has the effect, as to all lands the right to which had not theretofore vested in the grantee company by definite location of the line of road or other identification of the lands granted, of protecting actual settlers, who, prior to the time when notice of the withdrawal of the lands was received at the local land office, made pre-emption or homestead entries thereof.

The decisions cited by counsel in their brief are in nowise contrary to the above interpretation of the act of April 21, 1876. The construction of this act is not involved in any of those decisions, except the Northern Pacific Railroad Company v. Amacker (175 U. S., 564), which was followed in the decision complained of.

It has been repeatedly decided by the supreme court that Congress, prior to the definite location of the road, has the right to dispose of the lands on the general route of the road as it saw proper.

In Northern Pacific Railroad Company r. Sanders (166 U. S., 620), it is said:

The company acquired, by fixing its general route, only an inchoate right to the odd numbered sections granted by Congress, and no right attached to any specific section until the road was definitely located and the map thereof filed and accepted. Until such definite location it was competent for Congress to dispose of the public lands on the general route of the road as it saw proper.

In Menotti r. Dillon (167 U. S., 703, 705, syllabus), it is said:

The railroad company accepted the grant subject to the possibility that Congress might, in its discretion, and prior to the definite location of its line, sell, reserve or dispose of enumerated sections for other purposes than those originally contemplated.

If Congress had the right to dispose of these lands prior to the definite location of the road, before which time title would not pass to the company, it had the right as to all lands not so vested in the company to enact other needful legislation for the protection of the rights of entrymen upon lands embraced within the limits of the grant. Congress exercised this right in the enactment of the statute now under consideration. It is in pari materia with the statutes pertaining to railroad grants and by all rules of construction it must be con

sidered in connection with such statutes. Prior to the enactment of this statute, in general (and the grant of this company is not an exception), upon filing the map of definite location the land within the limits of the grant passed irrevocably to the beneficiary in the grant, to the exclusion of all subsequent claimants. In view of the hardships frequently arising from permitting entries and filings to be made and money and labor expended in improvements by claimants whose claims might thereafter be asserted before information could be had at the local office of the action of the company in filing its map of definite location with the Secretary, Congress passed the act of April 21, 1876, which allowed such bona fide claimants to go on and perfect their claims, so initiated, "prior to the time when the notice of the withdrawal of the lands embraced in such grants was received at the local land office," etc. Congress thus adopted a new rule for the purpose of avoiding the hardships theretofore arising under these land grants. While this act has no application to lands to which rights had heretofore become vested, it established a new rule subject to the conditions of which the right of railroad companies under their respective grants would attach in the future.

But although the statute under consideration may be one of a series or group, it may still be that the legislature designs to depart from the general purpose or policy of its previous enactments on the general subject; and if such a design is unmistakably apparent on the face of the act, it must be given effect. It would be entirely erroneous, in such a case, to defeat the will of the legislature by undertak ing to reconcile the act with prior statutes, or to control its terms by theirs. (Black on interpretation of Laws, 209.)

In this instance the design of Congress to depart from the general policy of its previous enactments is so plain as to render discussion unnecessary.

In the case at bar, the line of the California and Oregon Railroad Company opposite the lands in controversy having been definitely located in 1883, subsequent to the passage of the act of April 21, 1876, the rights of the company attaching upon such location are subject to the provisions and restrictions contained in said act, one of which is that the grant to the company shall not prevail over a homestead or pre-emption claimant who was an actual settler upon the land and whose entry was made in good faith prior to the time when notice of the withdrawal of the lands embraced in the grant was received at the local office.

In the Amacker case (supra) the only question discussed having relation to the act of April 21, 1876, was as to whether the protection of that act extended to any claimant other than the original entryman, and the court held, in effect, that if there was an entry of record at date of the filing of the map (in that case of general route) in the local office, although such entry might afterwards be abandoned or canceled, the land did not come within the operation of the withdrawal, 2967-VOL 29-42