Under the view heretofore announced, the right of Wilson to perfect his entry and receive patent for said tract was confirmed by the act of April 21, 1876, and the company has no right to make selections of lieu lands under the act of June 22, 1874, upon said tract as a basis.

The decision of your office holding for cancellation said selection is affirmed, and if McCulloch should renew his application you will take appropriate action thereon.

ISOLATED TRACT-UTE INDIAN LAND.

H. R. SAUNDERS.

Ute Indian land subject to disposal under the restrictions of section 3, act of June 15, 1880, can not be sold as an isolated tract under section 2455, R. S., as amended by the act of February 26, 1895.

Acting Secretary Ryan to the Commissioner of the General Land Office, (W. V. D.) June 6, 1898.

(J. L. McC.)

H. R. Saunders has appealed from the decision of your office, dated October 20, 1896, rejecting his application to purchase, as an "isolated tract," the SW. of the NW. of Sec. 8, T. 15 S., R. 95 W., 6th P. M., Montrose land district, Colorado.

The statute authorizing the sale of "isolated tracts" of land is Sec. 2455, R. S., as amended by the act of February 26, 1895 (28 Stat., 687), which permits such sale:

Provided, That lands shall not become so isolated or disconnected until the same shall have been subject to homestead entry for a period of three years after the surrounding land has been entered, filed upon, or sold by the government.

The land here in question is a part of the lands within the limits of the former Ute Indian reservation that were declared to be public lands by the act of July 28, 1882 (22 Stat., 178), and thereby made subject to disposal under the restrictions of section 3 of the act of June 15, 1880 (21 Stat., 199), which provides, inter alia:

That none of said lands, whether mineral or otherwise, shall be liable to entry and settlement under the provisions of the homestead law, and shall be subject to cash entry only in accordance with existing law.

As the land here in question has not "been subject to homestead entry for a period of three years" (indeed has never been subject to homestead entry at all), your office holds that it has no authority to sell the same as an "isolated tract." It must therefore be disposed of under the provisions of said act of 1880, inasmuch as the act of March 3, 1891 (26 Stat., 1095), repealing the pre-emption law, contained, in section 10 thereof, an express exception in favor of lands in the category of those within the former Ute Reservation.

The language of section 10 is as follows:

That nothing in this act shall change, repeal, or modify any agreements or treaties made with any Indian tribes for the disposal of their lands, or of any land ceded to

the United States, to be disposed of for the benefit of such tribes, and the proceeds thereof to be placed in the treasury of the United States; and the disposition of such lands shall continue in accordance with the provisions of such treaties or agreements, except as provided in section five of this act.

The decision of your office rejecting Saunders' application to purchase under the amendatory act of February 26, 1895, supra, is therefore affirmed.

RAILROAD GRANT-LANDS EXCEPTED-PRE-EMPTION FILING.

UNION PACIFIC RY. Co. r. WADE.

An unexpired pre-emption filing existing of record at the date of a railroad grant excepts the land covered thereby from the operation of the grant.

Acting Secretary Ryan to the Commissioner of the General Land Office, (W. V. D.) (F. W. C.)

June 6, 1898.

The Union Pacific Railway Company has appealed from your office decision of May 12, 1897, holding that the E. of the SE. †, Sec. 33, T. 7 S., R. 8 E., Topeka land district, Kansas, was excepted from its grant, made by the acts of July 1, 1862 (12 Stat., 489), and July 2, 1864 (13 Stat., 356).

This tract is opposite the portion of the road shown upon the map of definite location filed January 11, 1866.

The lands in this township were offered in accordance with proclamation No. 636, beginning September 19, 1859, at Ogden, Kansas.

The tract here involved was not sold at the public auction, and thereafter was subject to private purchase, being known as "offered" lands. On July 31, 1861, William Shute filed pre-emption declaratory statement No. 707 covering this tract, in which settlement was alleged same date, which filing has never been perfected.

On June 21, 1881, the land was listed by the company preliminary to patent, but has not been included in a patent to the company.

On December 9, 1896, the local officers, without notice to the company, permitted William L. Wade to make homestead entry of the land. These facts were considered in your office decision of May 12, 1897, in which it was held that as said pre-emption filing by Shute was intact upon the record at the date of the grant, under the decisions of the supreme court in the case of Kansas Pacific Railway Co. v. Dunmeyer (113 U. S., 629) and Whitney r. Taylor (158 U. S., S5), the tract was reserved from the operation thereof.

Under the pre-emption act of September 4, 1841 (5 Stat., 453), this tract having been offered, Shute was required to make proof and payment within twelve months from his settlement, which time would have expired July 31, 1862. This period had not expired at the date of the grant, and it is shown that his filing remained upon the records uncanceled at that time.

The filing was, therefore, a subsisting or existing claim at the date of the grant, and, following the decision in the case of Northern Pacific Railroad Co. v. Smalley (15 L. D., 36), served to reserve the land from the operation of the grant.

Your office decision is therefore affirmed, and the listing by the company will be canceled.

NORTHEAST PERRY.

Motion for review of departmental decision of June 29, 1897, 24 L. D., 580, denied by Secretary Bliss, June 7, 1898.

PUBLIC SURVEY-RECORDS-ISLAND-JURISDICTION.

BENECKE v. POWELL.

The United States surveyor general of a State on the completion of the public surveys therein, and the consequent closing of his office, is required, under section 2218 R. S., to deliver the plats and records of said office to the proper officer of said State; and thereafter, if it appears that the plat of any of such surveys is not found on file in the General Land Office, the Commissioner may procure from the proper State authority a certified copy of said plat, which will be of the same force as the original would have been if on file.

The jurisdiction of the Land Department over a tract of public land, properly surveyed as an island, is not affected by the fact that subsequently said land, in consequence of a change in the channel of the river in which it was situated, ceases to be an island.

Secretary Bliss to the Commissioner of the General Land Office, June 7, (W. V. D.)

1898.

(J. L. McC.) George W. Powell, on September 3, 1894, made homestead entry for fractional section 24, T. 53 N., R. 20 W., Boonville land district, Missouri.

Said fractional township is a part of what was formerly known as "Island No. 23," in the Missouri river. On July 6, 1895, Louis Benecke initiated contest against said entry, alleging that said "Island No. 23" no longer exists;

that the same has been wholly washed away by the water of the Missouri river; that by reason of the gradual shifting of the channel of said river, the former situation of said Island has been attached to and become a part of that portion of Saline county, opposite the former situation of said island, the fee of which is now vested in the plaintiff, Louis Benecke, and the legal heirs of Sterling Price, as special partners; that since the death of said Price, plaintiff has been appointed and has qualified as administrator of said partnership estate, and has actual charge thereof, including the land in controversy; and that, for himself and as administrator of the estate of said Sterling Price, he claims the land in controversy as the riparian owner of said accretions.

A hearing was had, beginning August 28, 1895, at which a large

amount of testimony was taken. As the result of said hearing the local officers, on September 6, 1895, rendered decision as follows:

From the testimony presented we find that Island No. 23, and that part of it involved herein, is in existence at the present time, and was never wholly washed away. We also find that the land embraced in said homestead entry No. 15,560, in the name of George W. Powell, is not an accretion to that part of Saline county, Missouri, opposite the former situation of said island. We therefore are of the opinion that said homestead entry No. 15,560 should not be canceled; and said contest is hereby dismissed.

Benecke appealed to your office; which, on August 22, 1896, after setting forth the record facts, substantially as above, found and held:

I am of the opinion that you had no jurisdiction of the subject matter involved between the parties; hence this office has no jurisdiction whatever to settle such a contest. It is a controversy to be settled by the local courts. Said contest is therefore dismissed.

Benecke has appealed to the Department.

At the hearing, the testimony was contradictory beyond reconciliation. That of the witnesses for the contestant is given mainly in the form of depositions. Thus, E. W. Price deposes, in effect, that the land which formerly was "Island No. 23," gradually washed away, until about 1874 or 1875, when the last particle of it disappeared, and for several years there was no sign of any island left, even at low water; but afterward land began to form gradually, by accretion to the main land south of the island (the south bank of the Missouri river as it then existed), which eventually extended over the exact locality where Island No. 23 formerly had been.

Price's testimony is corroborated by that of several other witnessesamong others, that of one William Wegner, who testified that he resided on the island from 1870 to 1875, but during that period it was continually washing away, and at the last named date he "had to move off the island because it was washing away, and all of it did wash. away, and no part of it was left."

The testimony in behalf of the defendant includes the entire record history of the land and adjacent country, for nearly a century past.

The records of your office show that the land both north and south of the Missouri river was surveyed in 1816. Said surveys did not include Island No. 23, in the Missouri river; but it is alleged that it was surveyed in 1820. No plat of survey bearing that date, however, appears to be on file in your office. There is little doubt that a survey of said island was made about that date; but whether a little earlier or a little later is not a vital question.

On March 8, 1887, your office wrote to the State Register of Lands, at Jefferson City, Missouri, as follows:

REGISTER OF LANDS,

Jefferson City, Missouri.

MARCH 8, 1887.

SIR: This office is in receipt of several communications in regard to the survey of "Island No 23," in the Missouri river, which, it is alleged, embraces parts of sections

13 and 24, township 53 north, range 20 west; and section 18, township 53 north, range 19 west, in Saline county, Missouri, according to the survey made south of the Missouri river.

You are requested to examine the records of your office, and ascertain whether or not there appears an approved plat of the survey of said Island No. 23; and if one is found, please forward a certified copy thereof for the files of this office, at the earliest practicable date.

If you have no approved plat on file, please state whether there is any information in your office relative to an official survey of said land.

Very respectfully,

WM. A. J. SPARKS,

Commissioner.

To the above letter the following answer was received.

STATE OF MISSOURI,
OFFICE OF REGISTER OF LANDS,
City of Jefferson, March 18, 1887.

SIR: In compliance with the request contained in your letter "E," of the 8th inst., I herewith enclose to you certified copies of the plat of Island No. 23, in the Missouri river, situated in township 53 N., R. 19 W., and Tp. 53 N., R. 20 W., south of Missouri river.

The plat of survey of Tp. 53 N., R. 20 W., was approved by Wm. Cuddy, Sur. Gen., Feb'y 22, 1862.

Tps. 52 and 53 N., R. 19 W., was approved by Wm. Cuddy, Sur. Genl. Febr'y 12, 1862. No part of this island is in Tp. 53 N., R. 21 W., S. of R.

Very respectfully, your obedt. servant,

Hou. Wм. A. J. SPARKS,

Comm'r Genl. Land Office, Washington, D. C.

ROBERT MCCULLOCH, Register, By V. M. HOBBS, Chief Clerk.

The certified copy of surveys thus transmitted were thereupon made a part of the records of your office.

At the time of the survey of this portion of the State of Missouri (in 1816), the Missouri river, which before reaching this point had run in a nearly southeasterly direction, here made a sharp turn toward the north, and ran northward for between two and three miles; then it curved and ran eastward for about a mile; then it turned and pursued a southward course for between two and three miles. It had thus, after making a detour of about six miles, returned to within about half a mile of the point where it left its southeasterly course, thereby nearly enclosing a peninsula half a mile across from west to east at the isth mus or neck, and not quite a mile wide at its widest point. At the northernmost point in this northward bend of the river, an island was situated, which was currently known as "Island No. 23." This island embraced not quite one square mile of land.

Different parts of said so-called "Island No. 23," recognized by your office as being surveyed public lands of the United States, were disposed of by the local officers, with the approval of your office, to applicants under the homestead law-one of whom is the contestee in the case at bar.

The land in controversy, however, is not now an island. The testimony taken at the hearing shows that since the earliest known period 21673-VOL 27-4