Los Angeles herald., 1890-05-09
The Letter.

decision, as follows:
The Letter.
WASHINGTON, d. c., April 80, 1890.
Register and Receiver Land Office, Los
angeles, Cal.
GENTLEMEN-I have to advise you that
on the 10Th inst.the honorable secretary
of the interior affirmed Office decision of
October 27, 1888, in the case of Asa Lane
VS. the Southern Pacific Railroad Com
pany, involving the Sc. "a Sec. l, TIP. 6
N, r. 5 W., S. B. M.
have accordingly this day cancelled
the company's selection per list No. 20 OF
the tract in question and closed the case.
You will permit Mr.. Lane to complete
his entry, Inclosed please find copy
of the honorable secretary's decision.
Very respectfully, w. M. STONE,
Acting Commissioner
The Decision.
Asa Lane VS.. Southern Pacific Railroad
Company.
The Commissioner of the General Land
Office.
SIR-This case involves right to the
Sc. of Sec. l. TIP. 6 N, r. W., S. B.
M, Los Angeles, California, lying within
the indemnity limits of the grant to the
Southern Pacific Railroad Company.
The tract in controversy, which had
been withdrawn for the benefit of said
railroad company, was restored to the
public domain and opened to settlement
by the order of August IS, 1887, revoking
the withdrawal of indemnity lands
made for the benefit of said grant, ex-
cept as to lands covered by approved
selections.
At the close of the revocation of the
order of withdrawal the tract had not
been selected by the company, but on
October 7, 1887, it selected all of said
section.
On October Is, 1887, Asa Lane filed
declaratory statements for said tract, al
leging settlement March 4, 1885, and
after posting publication of notice, sub
mitted final proof before the local offices
on January 20, 1888, when the railroad
company appeared and filed formal pro-
test against the allowance of said proof,
claiming the right to said land under its
selection made October z, 1887, as in
demnity land. The local officers dis
missed the protest of the company and
rejected the proof of Lane for the reason
that it was presented before the expira-
ton of six months since his legal settle
ment on the land, from which action
both parties appealed.
Your Office affirmed the decision of
the local Office dismissing the protest of
the company, but reversed their de-
cision rejecting the proof OF Lane. From
this decision the railroad company ap-
pealed.
1t appears from the testimony that
Lame settled upon this quarter section
in March 4, 1886, and ON April 8, 1885,
made application to purchase it from
the railroad company; that he resided
upon and improved the tract with the
permission of the company from that
date to the date of final proof. At the
date of the revocation of the order of
withdrawal, when the land was opened
to settlement and entry under the gen.
eral land laws, it was occupied by Lane,
a qualified pre-emptor, and although he
went upon said land with permission of
the railroad company while it was a
reservation, yet the company, having
failed to make selection prior to revoca-
tion of the withdrawal, the right of Lane
attached Immediately upon the restora-
ton of the land to the public domain
by virtue OF his settlement existing at
that date. The company had no right
or claim to convey prior to selection, and
when the withdrawal was revoked he
was free to claim and initiate a right
adversely to the company.
1t is contended by the company that
its selection OF the section being re-
corded before the filing of Lane was an
appropriation of the land, and could
only be contested in the way provided
by the rules of practice.
The order of revocation provided that
entries and filings might be made upon
lands within said indemnity limits cov-
cred by unapproved selections, and that
when an application to file or enter is
presented, showing that the land is not
subject to the company's right OF selec-
ton, notice should be given to the COM
pany, who will be allowed thirty days
in which to present objections to the al
lowance of such entry, and if no response
is made, the filing or entry should be al
lowed, but should the company appear
and show cause, hearing should be
ordered to determine whether the land
is subject to the company's right of
selection. While the order evidently
had reference to some approved selec-
tions made prior to the revocation of the
withdrawal, | can see no reason why it
may not apply to selections made after
the revocation where application to
enter or file shows that the land is not
subject to the company's right of selec-
ton. While it may be admitted that
the filing of the declaratory statement
in the presence of selection of record,
without giving notice to the company as
provided in the order of withdrawal,
was irregular, yet it was an error
without injury inasmuch as the
company was notified OF the in
yention Of Lane to make final proofs,
and at that time appeared and protested,
and has had full opportunity to present
its claim.
One William w. Bemis also filed fol-
the east half of said quarter-section Oc-
tober 13, 1887, alleging settlement De-
cember /, 1851. He also protested
against the allowance of Lanes proof
and cross-examined the witness; but the
local officers dismissed his protest, from
which he failed to appeal. That decision
was declared by your Office final. and the
case closed as to him. He also failed tc
appeal from your said decision of October
27, 1888. As Bemis has waived all right
to the tract by failure to appeal from the
decision of the local officers and of youl
Office, and it not being necessary to con
slider his settlement and filing to deter