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The seventh section of the statute contains a several grant to the State of Alabama, and a several graut to the State of Mississippi, not a grant jointly to the two. The word “respectively" makes the severalty, without doubt.
The statute, with its seven sections, is, in meaning, spirit and effect, the same as if three several and distinct grants had been made by the three separate and distinct statutes, the one to the State of Illinois, the second to the State of Alabama, and the third to the State of Mississippi, with the restrictions, conditions, limitations, forfeitures and privileges expressed in the first six sections. The meaning and intention of the legislature, as contained in the seven sections of the act, will be expressed and clearly understood by taking the first six sections containing the grants to the State of Illinois, and applying them, mutatis mutandis, first, to the State of Alabama, and then to the State of Mississippi, so as to make three distinct statutes, one in favor of Illinois, another in favor of Alabama, and the third in favor of Mississippi.
The grant to the State of Alabama is of the right of way over the public lands in that State, and of the sections of lands on each side of the railroad in that State; the grant to the State of Mississippi is of the right of way over the public lands in that State, and of the sections of land on each side of the railroad in that State, according to description of sections of land contained in the second section, subject to the provisoes and conditions of the several sections of the statute.
The claim to the quantity of land, equal to the one-half of six sections in width on each side of the road, in its whole length from Mobile to the Ohio river, seems to be inadmissible. It supposes a joint grant and a joint property in the lands granted to the States of Alabama and Mississippi. Such a construction would run into perplexed and unreasonable consequences.
Under such hypothesis, which of the two States is to survey and lay out the road and fix its location definitely? Which is required by the first section of the act to be “made under the direction of the legislature ?” Shall the Legislature of Alabama, or the Legislature of Mississippi, have the direction? Which of the two States is to appoint the agent required by the second section to select the lands in lieu of the sections sold by the United States, or subject to the right of pre-emption, the Governor of the State of Alabama, or the Governor of the State of Mississippi ?
The fourth section provides that the lands granted to aid the construction of the railroad shall be “subject to the disposal of the legislature thereof, for the purpose aforesaid, and no other.” Which of the States is to dispose of the land ? Or, if some by one State, and some by the other, by what standard is the portion to Alabama and the portion to Mississippi to be assured ?
By the fifth section, if the railroad shall not be completed within ten years, the amount of sales of the lands is to be paid to the United States, and the unsold lands shall re-invest in the United States. Suppose one State completes the road so far as the part is under her direction and control, and the other State fails to complete the part under her direction, what then? How much is to be refunded of the money received for sales ? And are both liable, or only one, and which one?
Although the railroad must pass thrcugh the States of Kentucky and Tennessee, in its course from the city of Mobile to the mouth of the Ohio river, the statute has not mentioned either of those States, and there is no indication of any intention on the part of the Congress of the United States, to grant to the States of Alabama and Mississippi, or to either, a right of way through the States of Kentucky and Tennessee, or a right to survey and locate definitely a road through them ; nor to give to the legislature of Alabama an authority to survey and locate, construct and superintend, a road through the territory of the State of Mississippi; nor to the State of Mississippi an authority to survey, locate, construct and superintend a road through the territory of the State of Alabama. The mere description given in the statute, of the contemplated Central Railroad, from the mouth of the Ohio river to the city of Mobile, confers no such powers or rights to the one State to operate within the territorial limits of any other State; no such confusion of jurisdiction is intimated by anything contained in the statute. In all these particulars, the States through which the road shall pass, are left free to adopt such measures as they may respectively think proper, and make all such arrangements as may be necessary for their mutual convenience and co-operation.
The whole length of the railroad, through and within the State of Alabama, when actually surveyed and definitely located within that State, under the direction of the legislature thereof, must determine, and limit, and define the extent of the grant to that State.
And so likewise, the whole extent of the railroad within the State of Mississippi, as surveyed and definitely fixed under the direction of the legislature thereof, must determine, limit and define the extent of the grant to that State.
2d. As to the lands in the Chickasaw country, within the State of Mississippi, the Indian title was surendered and ceded to the United States, by the treaty of Washington, made on 24th of May, 1834, between the United States and the Chickasaw nation of Indians. 8 Stats. at Large, p. 450 to 462; Brown's ed., vol. 9, p. 1266.
The Indians had but the right of occupancy; the ultimate right was in the United States, with the pre-emptive and sole right to purchase the Indian title. By the treaty of Washington, and cession by the Chickasaw nation of the right of occupancy, the right of possession and the actual possession, and the ultimate right and title to the lands, became united and vested in the United States. By the treaty, the government of the United States is bound to lay off the Chickasaw country into sections, &c., and to sell, for the best price that can be had, those lands, and to apply the proceeds to the use and benefit of the Chickasaws. Sales have been made by the United States from time to time; and the whole of that country, if not already sold, must be sold by the United States. The title has been, or must be, conveyed by the United States to the purchasers. No part of these sections, within what was called the Chickasaw country, (as defined by the treaty of 1834,) can be held by the State of Mississippi, under the grant of 20th September, 1850. But I think that a liberal and equitable construction of that legislative grant, may entitle the state of Mississippi to claim an equivalent for all the sections in the Chickasaw country, falling within the description of "every alternate section of land designated by even numbers, for six sections in width on each side of said road,” as definitely located and within the State of Mississippi : “such equivalent to be taken by selecting an equal quantity from the lands of the United States, most contiguous to the tier of sections above specified,” as pointed out and directed in the second section of said Act, and according to the rule expressed in my opinion of the 10th of March last, relative to the grant to the State of Illinois.
Considering the liberal spirit in which the Act of Congress was enacted, the public benefit and great utility of this railroad, if completed, and having great respect for the representatives in congress, whose argument you refer to, I was inclined to accede to the claim contended for by them, as far as a sense of duty and the most favorable construction of the Act would enable me ; but I have found myself constrained to adopt adverse views and conclusions on the subject. The constructions that would alone support that claim, seem to me to be not only arbitrary, but, in several respects, irreconcilable with the intent and plain meaning of the Act.
The words, “in proportion to the length of the road," must be understood in reference to a the length of the road” in the respective States of Alabama and Mississippi.
That was the measure of the grant to Illinois, and the 7th section is express, that the same “rights, privileges,” &c., granted to Illinois, were those alone intended to be granted to Alabama and Mississippi. To give to those words a different construction ; to understand them as embracing the entire line from Mobile to the Ohio river, would lead to inexplicable difficulties, and to consequences irreconcilable with plain provisions of the Act.
But, Sir, I will pursue the subject no further. What I have said will be sufficient to enable you to understand my views and opinions on the subject of your inquiries. I have the honor to be, very respectfully, yours, &c.,
J. J. CRITTENDEN. Hon. A. H. H. Stuart, Secretary of the Interior.
No. 554. It is determined to decline to withdraw lands from market for Railroad purposes, until after grant by Congress.
DEPARTMENT OF THE INTERIOR,
August 29, 1854. Sir :-It has been determined with the approbation of the President, after due consideration on the subject, to bring again into market the lands heretofore reserved for railroad purposes, in all cases, where grants had not been made at the close of the late session of Congress, and to decline in future to withdraw lands for such purposes, until after the necessary grant shall have been actually made.
R. M'CLELLAND, Secretary. Commissioner of the General Land Office.
Land in Missouri shown not to be swamp though claimed as such, confirmed as a Railroad selection.
DEPARTMENT OF THE INTERIOR,
October 25, 1855. Your letter of the 3d inst., complaining of the action had in relation to certain tracts selected by you in Macon County, Missouri, as swamp land, was received and referred to the General Land Office for report.
It appears therefrom that the title of the land in question, was contested by the Hannibal and St. Joseph's Railroad; that due notice was given to both parties, and that they respectively appeared before the Surveyor-Gene
ral at St. Louis; that the book of Diagrams referred to in your letter, formed a part of the evidence in the case, and that the tracts rejected as swamp land were determined not to be swamp land by the Surveyor-General, he stating that he had no hesitation, because of my personal knowledge of the country, and of the character of the testimony. The field notes, too, sustain the company;' that upon the examination of the report of the Surveyor-General and the testimony accompanying it, the Commissioner of the General Land Office confirmed the conclusions to which the SurveyorGeneral had arrived, and upon his recommendation, the Department rejected the said swamp land selections, and approved them to the railroad company.
R. M'CLELLAND, Secretary. A. L. Gilstrap, Bloomington, Missouri.
No. 556. The Swamp grant of September 28, 1850, did not embrace lands in Illinois, which were included in the Railroad grant of 20th September, 1850.
DEPARTMENT OF THE INTERIOR,
November 20, 1855. I herewith return the papers in relation to the swamp and overflowed lands in Illinois, which accompanied your report of the 16th ult., on the points involved, in a communication from the Governor of that State, of the 28th September last, and an argument subsequently filed by Judge Seates, the agent appointed by the Governor On the passage of the Act of 20th September, 1850, (No. 178,) making a grant for the Mobile and Chicago railroad, a reservation was made by order of the President, at its date, of a quantity of land fifteen miles in width on each side of the line of said road in Illinois, according to the locality then assigned to it, and which was very near that which it was shown ultimately to have assumed; that the object of said reservation was to preclude any further sale or disposition after the 20th September, aforesaid, Ist, of any lands within the six mile limits of said road, because of the grant to the State of the odd sections therein, and the enhanced minimum of the even sections therein, and which by the long established usages of the Department was required to be offered at public sale, before subject to entry at such advanced price, and 2d, of any land in the alternate sections, without the six and within the fifteen mile limits, which were granted to the State, to the extent of the aggregate deficiencies in the alternates within, between the full contents of the latter alternates and the quantity vacant at the date of the grant.
The State, through its proper agents, made the selections without the six mile limits, and the whole grant, (with the exception of trifling balances arising from mistakes and conflictions,) was adjusted and certified on the 13th March, 1852, and subsequently, in July, August and September, 1852, the land within the six mile limits was offered at public sale, under a proclamation of the President, dated 3d April, 1852, it directing that after the public sale, at each respective land office, the land without the six mile and within the fifteen mile limits, should be restored to market, (except as to two of the said offices in which no double minimum lands existed, and in relation to that within the fifteen mile limits, specific periods were given as to their restoration,) and the sales of this double minimum land, under the proclamation and since, have been patented, and the patents delivered to the purchasers. On the 28th September, 1850, Congress
passed the Swamp Land Act, (No. 182,) so called, and, under it, certain instructions were issued for carrying it into effect, embracing substantially these propositions, that where the field-notes of survey indicated the swampy character of the land, they were to be regarded as conclusive of such character, and that where the land is claimed by the State as such, it shall be by selections made by duly authorized agents of the State, and accompanied by their affidavits that they have examined the said land, and being acquainted with the mode of surveying the public land, that the greater part of each forty acre tract included in such selections is swampy, and of the character contemplated by the act.
Many of these selections, not only in Illinois, but elsewhere, were alleged to be good arable land, and applications for the purchase thereof were made, as for the land of the United States, and to which the States respectively had no valid claims under the Swamp Land Act, and from facts brought to the knowledge of the General Land Office, a rule obtained to allow parties to apply for land under these circumstances, and if after examination into the question of fact, after notice to the agent of the State, it was satisfactorily shown that the averment of the applicant was true, he was allowed to purchase the same, and the tract or tracts were stricken from the list of selections, and the same excluded from the list and plat directed by the act to be made out by the Secretary of the Interior, and which list was to be the basis of the perfect grant by a patent to the State, rendered necessary by the law to divest the United States of the fee simple title. Much effort was made from time to time to hasten the selections by the various States of the swamp land, without avail. Without closing cach land office and stopping all the operations thereof, until the swamp land selections were all made and reported, the Department was compelled to suffer ordinary entries and locations to progress, with no other security against conflictions than would seem from the fact, that purchasers were aware that land really swamp was not subject to legal sale or location. Before the receipt of any selections from Illinois (the first list of selections embracing land in the Kaskaskia District having been mailed by the Surveyor General of Illinois and Missouri on the 10th October, 1853,) many sales and locations had been made, conflicting with lands subsequently reported as swamp land. These conflictions in the various States had become so numerous, and involved interests to such an extent, that Congress on the 2d March, 1855, passed an act directing the President to issue patents on all such sales and locations, to pay the State the money received by the Government from the lands sold, and to allow it to locate other land in lieu of that taken by military warrants and scrip whenever the Commissioner of the General Land Office should decide. (upon proof to be submitted to him,) and the Secretary of the Interior should confirm the decision, that the land so patented was of the character contemplated to have been embraced by the Swamp Land Act. Under this state of facts, the State of Illinois claims all the unsold swamp land, on the 28th September, 1850, within the double minimum sections, notwithstanding its reservation by the President on the 20th September, for the purposes of the act of the latter date; all the unsold swamp land without the six and within the fifteen mile limits, notwithstanding the grant of the alternate sections therein, in whole or in part, by the previous Act of the 20th September, aforesaid, and its reservation by the President for the satisfaction of that grant, and she now, not only prefers this claim for the land, notwithstanding the Act of 2d March, 1855, (No. 275,) (except where her grantees, the several counties in the State, may elect to take the money, or other land,) but she insists that the extent and character of her claim shall be determined