Rancho Guadalupe."' ing that time; (4) liberty, for such period, to persons interested, to have the survey and plat returned into the district court of the United States for the purpose of being litigated, corrected, or set aside; (5) after such period, the transmission of the plat or the survey to the General Land-Office at Washington, for a patent. After the lapse of the period for retaining the plat and survey in the office of the surveyor-general, without intervention by any party interested, if the other preliminaries have been duly performed, there is no provision for making complaint or for correcting the result, and in such case, it seems to me, if any injury has been done, the only appeal left is to Congress. That there was no power in the district court before the act of July 1, 1864, or, since then, in the Commissioner of the General Land-Office, to grant a resurvey, &c., after such lapse, appears the more clearly by the provision in the 5th section. of the act of June 14, 1860, to the effect that, in such case, the plat and survey should, of themselves, have the force and the validity of a patent issued, i. e., that in such event the case should be considered as ended. A view opposite to this has been called to my attention, on behalf of the claimant. In accordance with that, it is said that the action by Mr. Commissioner Wilson in setting aside the patent of 1866 and granting a resurvey is analogous to the granting of a new trial by a court, in this, that after such resurvey had it is not competent for any tribunal to set it aside because of any insufficiency in the grounds upon which it was granted. Prima facie, I should have been disposed, as above, to doubt the power of the Commissioner to grant a new trial (as it were) in any case where the proceedings are regular. But I am told that the course of proceeding in these cases, while pending in the Department of the Interior, renders it unnecessary to consider this point; such course being, that appeals to the Secretary of the Interior from the Commissioner bring up for review all orders in the cause, interlocutory or other, made by the latter from the beginning. It is also said that the act of 1860, which gave to the district court jurisdiction over issues raised in such cases of survey, has been repealed by the act of July 1, 1864, and that such jurisdiction, at the time that Commissioner Wilson granted a resurvey, was vested in the General Land-Office. The reply to this is, that at the time of the passage of the repealing act the district court had lost jurisdiction over this particular case through the imputed laches of the claimant, and, that so, there was then no jurisdiction in the present case to be transferred. It is also urged in behalf of the claimant that the proceedings upon which the patent of 1866 was based were irregular, because the constructive notice given by the advertisements was defective in the following important particulars: 1. The period of four weeks did not, as required by the statute of 1860, (?) elapse between the first and last insertions of such advertisements. 2. The "Santa Barbara Gazette" was not a paper published at Santa Barbara, within the meaning of the act. On the first point my attention has been called to many authorities; some in the courts of the United States, and others in those of States. There is some discrepancy among them. In my opinion, what is required by the statute before me is, that the period of four weeks shall elapse between the first insertion and the act to be done (that is, the removal of the plat, &c., from the surveyor-general's office) which such notice is to precede. Four weeks' notice of that is given by the first insertion in the paper, but the statute also requires that such notice shall be repeated once a week in each week. This conclusion is according to the current of authorities, as I understand them. I have consulted in this connection 4 Pet., 349; 16 How., 610; 6 T. B. Monroe, 70; 4 Littell, 78; 13 Sm. & Mar., 318; 55 Me., 190; 7 Ind., 169; 37 Miss., 567; and 5 Nev., 415, with the numerous authorities cited in the last case. Upon the second point above, I have not been able to find any authority. There is weight in what has been forcibly and eloquently urged for the claimant to sustain his view of the question. Upon the facts found, however, I have not been able to satisfy myself that the statute has not been complied with. I think that, under the circumstances, the Santa Barbara Gazette sustains the character of a paper published Central Branch Union Pacific Railroad. at Santa Barbara. Although printed at San Francisco, it was forthwith transmitted to Santa Barbara for distribution and distributed there. My answer to the four questions propounded at the close of your communication, therefore, are, respectively: 1. The Terrill survey is, under the circumstances, final and conclusive. 2. There was no legal authority for issuing the second patent. 3. If there were no such authority, the Commissioner had the power to recall a paper which was only in semblance a patent. 4. The patent of 1866 is the patent to be delivered to the confirmees. In discussing this matter I have had the benefit of wellconsidered and very impressive arguments by counsel for the claimant, and I have thought of the case as one in which injury may have been done to the claimant under the doctrine of constructive notice. Very respectfully and truly, your obedient servant, Hon. C. DELANO, Secretary of the Interior. Solicitor-General. NOTE.-The Attorney-General, having been consulted in regard to the above case before his appointment to office, referred the communication of the Secretary of the Interior to the Solicitor-General on the 4th of January, 1873, to answer the questions propounded therein, and took no further action in the matter. CENTRAL BRANCH UNION PACIFIC RAILROAD. It is competent to the President, on the presentation for his approval (under section 9 of the act of July 1, 1862, chap. 120) of a map of the route of the contemplated extension of the Central Branch Union Pacific Railroad west of the meridian of Fort Riley, to make a provisional approval of the route solely for the purpose of withdrawing the lands from private entry along the same, without prejudice to his right of ultimately disapproving it; such a course would not at all commit him in regard to his final action upon the matter. Central Branch Union Pacific Railroad. DEPARTMENT OF JUSTICE, March 17, 1873. SIR: I have the honor of submitting the following reply to yours of the 15th instant, as to the Central Branch Union Pacific Railroad Company, addressed to the Attorney-General, and by him referred to me. It seems to me that after a map has been presented to the President for approval, (under section 9 of Pacific Railroad act of July 1, 1862,) there is no way of preserving intact the question so presented during whatever time may be required for its solution, except by withdrawing, for such time, from private entry, &c., the lands as to which question is made. Similar action, as you know, is familiar to courts under the maxim, Pendente lite, nihil innovetur. In order to preserve the claim of the Central Branch Company to a withdrawal of the lands on the route laid down in its map until the President shall have decided the question, I am of opinion that a provisional approval of such map, made expressly for such purpose alone, and without prejudice to his right of disapproving it in the end, would be proper, and would not at all commit him in regard to his final action thereupon. I therefore answer in the affimative the inquiry submitted in your communication above mentioned. I am, very respectfully, your obedient servant, Hon. C. DELANO, Secretary of the Interior. Solicitor-General. NOTE.-The Attorney-General, previous to his appointment to office, had been employed as counsel in the above case by the railroad company, and for that reason took no official action thereon further than to refer the matter to the Solicitor-General with request to answer the question submitted by the Secretary of the Interior. Guano Islands in the Pacific. GUANO ISLANDS IN THE PACIFIC. Claim of the widow of William H. Parker, under the acts of August 18, 1856, chap. 164, and April 2, 1872, chap. 81, to certain guano islands in the Pacific Ocean, examined, and the following conclusion reached: that claimant has no derivative title to the islands under her late husband, and that she is not now in a situation to set up an original title thereto in herself. DEPARTMENT OF JUSTICE, May 8, 1873. SIR: In 1852 Mr. William H. Parker discovered several islands in the Pacific, which seemed to be barren rocks, and were, therefore, taken no account of by him until 1857, when, having heard of the guano-act of 1856, he bethought himself of them, and, hoping that they might be islands included in that legislation, began proceedings for securing its benefits. Not having possessed and occupied them, as required by that act, he was at that time in no situation to give the prescribed notice to the office of the Secretary of State. However, he professed to do so. In January, 1858, he made an arrangement by which his supposed rights as to those islands were to be shared among the owners and charterers of the Palestine, a schooner, which thereupon sailed to those islands, having Mr. Parker, one of its charterers, on board, and "took possession" of them in the name of the United States, on behalf of such charterers and owners. The Palestine made a second voyage thither in June, 1858, and, upon returning, left on the islands two men and other evidences of occupancy. This was the first time that any occupancy was provided for beyond the term of the stay of the vessel at the islands. In the fall of 1858 the Pacific Guano Company was chartered by the State of California. It consisted of persons who were concerned in the voyage of the Palestine. Mr. Parker is not named in the act as a corporator, but it appears by papers on file in the office of the Secretary of State that he was an early, if not an original, stockholder. In those papers he appears as selling stock in that company, the sales |