the Governor of said State, to select, subject to the approval of the Secretary of the Interior, from the lands of the United States nearest to the tiers of sections above specified, so much land, in alternate sections or parts of sections, as shall be equal to such lands as the United States have sold or otherwise appropriated, or to which the rights of pre-emption have attached as aforesaid; which lands, (thus selected in lieu of those sold and to which pre-emption rights have attached as aforesaid, together with the sections and parts of sections, designated by odd numbers as aforesaid, and appropriated as aforesaid,) shall be held by the State of Iowa for the use and purpose aforesaid: Provided, that the land to be so located, shall, in no case, be further than fifteen miles from the lines of the said roads, and selected for and on account of each of said roads: Provided further, that the lands hereby granted for and on account of said roads severally, shall be exclusively applied in the construction of that road for and on account of which such lands are hereby granted, and shall be disposed of as the work progresses, and the same shall be applied to no other purpose whatever.” 11 Stats. at Large, p. 9.

Upon the most attentive consideration of this Act in all its parts, it has proved impossible for me to entertain a doubt as to its true legal effect.

The Act declares, that "there be, and hereby is, granted to the State of Iowa," for certain purposes, certain portions of the public domain within said State, not yet made positive in location, but capable of being so rendered on the happening of particular future events mentioned.

But the grant was not merely subject to future events for the determination of the specific section of land to which it would attach; it was also subject not to vest at all, or to be divested, according to future events; for the State of Iowa might not accept, or might fail to execute conditions annexed to the grant; such, for instance, as the primary one of entering upon the construction of the contemplated roads.

If the Act stopped here, there would be nothing in it to constitute, on the day of its enactment, an actual severance of certain sections from the public domain, or transfer to the State of Iowa of a vested interest in the

same.

It is not a grant of lands by their character like the grant of swamp lands to a State, or the grant of specific sections of riparian land fixed at the time by the course of a river. Instead of this, it is a grant on the line of unlocated railroads. To assume that in such a case the grant vests at once, would deprive the general proprietor of the use of his land, not only within six sections of a line certain, but anywhere and everywhere within any possible line. Such an effect is not to be presumed. To be conceded, it must be expressly enacted. But the Act does not leave the question here; it proceeds implicitly to negative the supposed effect. It contemplates that the United States shall retain power to convey, within all the possible limits of the grant, either by ordinary sale, or on pre-emption, up to the time "when the lines or routes of said roads are definitely fixed;" and provides for the case by granting, contingently, substituted lands beyond the original limits.

In my opinion, therefore, the act by its text, makes a conditional grant in præsenti, in the nature of a float, and which does not attach to any particular parcel of the public lands until the necessary determinative lines shall have been fixed on the face of the earth.

I think all the precedents, in the action of the Government, as applied to previous grants in the same or similar terms, tend to confirm this conclusion; for, in the analogous cases, the contingent strips of public domain, subject to such future railroad location, were withdrawn from private entry

by proclamation of the President; thus implying that without such withdrawal private entries would go on as usual; and the power of the President to make such withdrawal, as the means, and the only means, of preventing anticipatory private appropriations in the case of railroad grants to States, has been recognized by a recent act of Congress. (Act of March 27, 1854; 10 Stats. at Large, p. 269. See No. 234.)

There is, it is true, in previous cases, some conflict of precedents as to the time when the right of pre-emption shall cease under such circumstances. In some cases the right of pre-emption has, by the tenor of the proclamation, or its construction, ceased on the withdrawal of the lands from private entry, and in some it has not: and there is much discussion in the papers before me on the question of the power of the President to discriminate, and to leave a private appropriation to continue in the form of pre-emption, while forbidding it in other forms. But that question you have not referred to me: it bears on the question actually submitted only in the subordinate relation of consequences; and there is in the text of the act, according to my appreciation of it, no such obscurity of import as to require or admit of elucidation from the consideration of incidental consequences. I am, therefore, not called on to tax my thoughts with that particular incident of the subject. And it is of course unnecessary to discuss here the very grave matters of expediency involved in the alternatives of the total or partial suspension of the purchase and sale of lands, which are within the range of unlocated railroad grants to States.

I am, very respectfully,

Hon. Robert M'Clelland, Secretary of the Interior.

C. CUSHING.

No. 552.

Grant of land to Illinois for a railroad.

A survey, by which the Chicago branch of the railroad from Chicago to Mobile, was to diverge from the main track, at a point not north of the parallel of thirty-nine and a-half degrees, north latitude, is in accordance with the Act of 20th September, 1850.

The United States granted to Illinois, by Act of 20th September, 1850, in aid of the railroad from Chicago to Mobile, every alternate section of land, designated by even numbers, of six sections in width, on each side of said road and branches; but the claim to six sections for every linear mile of the road and its branches, including all its sinuosities and deflections from a straight line, is not tenable.

ATTORNEY-GENERAL'S OFFICE.
March 10, 1852.

Sir: I have had the honor to receive your letter of the 9th instant, referring to my opinion certain questions which have arisen in your Department, in relation to the proper construction of the Act of Congress of the 20th of September, 1850, entitled "An act granting the right of way, and making a grant of land to the States of Illinois, Mississippi and Alabama, in aid of the construction of a railroad from Chicago to Mobile." (No. 178.)

The first section of the act provides, "that the right of way through the public lands be, and the same is hereby, granted to the State of Illinois, for the construction of a railroad from the southern terminus of the

Illinois and Michigan canal, to a point at or near the juncture of the Ohio and Mississippi rivers, with a branch of the same to Chicago, on Lake Michigan; and another, via the town of Galena, in said State, to Dubuque, in the State of Iowa," &c.

The same section further provides, "that a copy of the survey of said road and branches, made under the direction of the legislature, shall be forwarded to the proper local land offices, respectively, and to the General Land Office at Washington," &c.

A survey was accordingly made of said road and branches, under the direction of the Legislature of Illinois, which required that the Chicago branch of the road should diverge "from the main track at a point not north of the parallel of thirty-nine and a-half degrees north latitude," &c. That survey is understood to have been forwarded to the several land offices, as required by the act; and a copy of it, transmitted to you, is now before me. Upon this state of the case, the first question arises, which you propose to me in the following terms, namely: "Whether that location of the road and branches, (exhibited on the said plat of survey,) is in accordance with the law granting the right of way?"

My opinion is, that it is in full accordance with that law.

The only ground of objection, or question which has been suggested on this point, is, that the branch to Chicago diverges from the main road at a place too remote from that city, thereby giving to the State of Illinois a claim, under the second section of the act, to a greater quantity of land than was intended.

This objection can avail nothing. The act of Congress does not prescribe at what point or distance from Chicago, the branch to that place should diverge from the main track or road; that was left to the judgment and selection of the grantee-the State of Illinois; and she has determined it beyond all further question, by her location and survey of the road. That location of the Chicago branch does not conflict with the Act of Congress; and it is in conformity with the act of the Legislature of Illinois, giving directions for the survey.

It seems to me, therefore, that the objection is altogether unfounded; and that the main road and its branches, as exhibited by the diagram aforesaid, are located according to law.

Your next question respects the quantity of land to which the State of Illinois is entitled, under said act, to aid in the construction of said road and branches.

By its second section it is enacted, "that there be and is hereby granted to the State of Illinois, for the purpose of aiding in making the railroad and branches aforesaid, every alternate section of land, designated by even numbers, for six sections in width, on each side of said road and branches ; but in case it shall appear that the United States have, when the line or route of said road and branches is definitely fixed by the authority aforesaid, sold any part of any section hereby granted, or that the right of preemption has attached to the same, then it shall be lawful for any agent or agents, to be appointed by the Governor of said State, to select," &c., "in equal quantity, from the lands of the United States most contiguous," &c. You inform me, that, in virtue of this section of the act, "the State of Illinois claims a quantity of land equal to the one-half of six sections in width, on each side of said road and its branches, or three thousand eight hundred and forty acres for every linear mile of the road and its branches, including all its sinuosities and deflections from a straight line." You add the expression of your own "doubt, whether the claim to that extent is tenable," and you desire, as I understand you, my opinion on that point.

It is quite clear, in my judgment, that the claim to that extent is not tenable, and cannot, according to law, be allowed. It is a theory, rather than a claim; and has nothing to sustain it in either the intention or language of the act. The imaginary straightening out of crooked lines to furnish a longer base, and thereby to increase the quantity of land to the grantee, is at apparent variance with the plain purpose and words of congress. The statute had reference alone to the actual road as made or located, with all its sinuosities. The line which that forms, is the base line of the land granted on each side of it, and is the object and measure by which its locality and quantity are to be ascertained and determined. And for so much of the land, included in the grant thus defined, as shall appear to have been previously appropriated by pre-emptions, or purchasers from the United States, the grantee, namely, the State of Illinois, is entitled to an equal quantity elsewhere, as provided for in said act.

This answer embraces, I believe, all the questions which you have been pleased to submit to me, on this subject; and I have only to add that I am, Very respectfully, yours, &c., J. J. CRITTENDEN.

Hon. Alexander H. H. Stuart, Secretary of the Interior.

No. 553.

Grant of lands to Illinois, Mississippi, &c.

The Act of 20th September, 1850, granting the right of way and land to the States of Illinois, Mississippi and Alabama, in aid of a railroad from Chicago to Mobile, does not grant a right of way through the States of Kentucky and Tennessee.

No part of the sections within the Chickasaw country can be claimed by Mississippi under the grant, but an equivalent is allowable.

ATTORNEY-GENERAL'S OFFICE, August 7, 1852. SirThe questions in your letter of 29th July, arising out of the Act. of 20th September, 1850, (No. 178,) entitled "An act granting the right of way and making a grant of land to the States of Illinois, Mississippi and Alabama, in aid of the construction of a railroad from Chicago to Mobile," have been duly considered.

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The first section of this statute enacts, "That the right of way through the public lands be granted to the State of Illinois for the construction of a railroad from the southern terminus of the Illinois and Michigan canal to a point at or near the junction of the Ohio and Mississippi rivers, with a branch of the same to Chicago, and another via the town of Galena, in said State, to Dubuque, in the State of Iowa, with the right also to take the necessary materials of earth, stone and timber, &c., for the construction thereof; provided that the right of way shall not exceed one hundred feet on each side of the length thereof, and a copy of the survey of said road and branches, made under the direction of the legislature, shall be forwarded to the proper local land offices respectively, and to the General Land Office at Washington City, in ninety days after the completion of the same.'

Section 2d, grants to the State of Illinois, for the purpose of aiding in making the railroad and branches thereof, within the State, every alternate section of land designated by even numbers, for six sections in width on

each side of said road and branches; but, "in case it shall appear that the United States have when the line or route of the road and branches is definitely fixed by the authority aforesaid, sold any part of any section hereby grauted, or that the right of pre-emption has attached to the same, then it shall be lawful for any agent or agents to be appointed by the Governor of said State, to select, subject to the approval aforesaid, from the lands of the United States most contiguous to the tier of sections above specified, so much land in alternate sections or parts of sections as shall be equal to such lands as the United States have sold, or to which the right of preemption has attached, which lands, equal to one half of six sections in width on each side of said road and branches, the State of Illinois shall have and hold to and for the use and purpose aforesaid. Provided, that the lands to be so located shall, in no case, be further than fifteen miles from the line of the road, &c., to be disposed of only as the work progresses," &c.

Section 3d relates to the sections retained by the United States within six miles on each side of the road, not to be sold by the United States for less that $250 per acre.

Section 4th provides "That the said lands, hereby granted to the said State, shall be subject to the disposal of the legislature thereof for the purpose aforesaid, and no other." The road and branches to be for the use of the United States, free from toll or charge upon the transportation of troops or property.

Section 5th requires the road to be completed in ten years, otherwise the State of Illinois to pay to the United States the amount received for sale of the lands, and that unsold to revert to the United States.

Section 6th provides for the transportation of the mail at such price as Congress shall direct.

These six sections relate solely to the State of Illinois, the roads within the territorial limits of Illinois to the lands granted, and lying within the limits of that State, without any community of rights or interests of the State of Illinois with any other of the several States.

The 7th section enacts, "That in order to aid in the continuation of said central railroad from the mouth of the Ohio river to the city of Mobile, all rights, privileges and liabilities, herein before conferred on the State of Illinois, shall be granted to the States of Alabama and Mississippi respectively," &c.

You state that under the seventh section of the statute, the States of Alabama and Mississippi claim a quantity of land equal to the one-half of six sections in width on each side of said road, throughout its entire length, from Mobile to the Ohio river, to be taken wherever found in those States, within fifteen miles on each side of the road.

"That the route of the road passes through the western part of the State of Kentucky, and that portion of the State of Tennessee which formerly belonged to the United States. It also passed through that portion of the State of Mississippi which embraces the Chickasaw cession. The grounds upon which the present claim rests, are stated in the accompanying argument of a number of representatives in congress from the several States namned, and certain letters which accompany it.”

Whereupon you ask my opinion upon two questions: First, "As to the extent of the grant to which the claim can be properly allowed; whether for the entire length of the road from Mobile to the Ohio river:" Second, "Or if not, whether it can be recognized for those portions of the road which pass through the State of Tennessee and the Chickasaw cession in Mississippi, or either of them ?"