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by the lists she has furnished in accordance with the instructions to the advisory agents of the Secretary of the Interior, notwithstanding all or any allegations of fraud or illegality in said selections; and she also objects to the mode which has been and is being practised, in regard to the lands so selected, by permitting application therefor by others, and citing her agents at various times and places to defend such selections by additional proof as to their validity. I have examined the whole subject with much care, and perused the various arguments in behalf of the State, and of other interests involved, and I am constrained to arrive at the conclusions that the State had no right under Act of 28th September, 1850, to any of the land within the six mile limits, which had been reserved by the President under Act of 20th September, 1850, for the special purposes of that act, to wit, the reimbursement to Government for the granted lands.
The practice of the Government, from the earliest period, was, to reoffer at public sale enhanced minimum lands before they could be disposed of at all, and the ordinary entry at private sale, the attachment of pre-emption, and every other mode of disposition under prior laws, having as wide a scope, as to lands of the United States, as the Swamp Land Act, terminated with the law of 20th September, 1850, and the reservation by the President, with a view to the execution of the specific purposes and obvious design of the latter act. The concurrence in this view, of the force and effect of this and other acts, is shown by all the legislation of Congress on the subject of these double minimum and reserved lands; special legislation having been necessary from time to time, with a view of embracing them within the pre-emption privilege, and rendering them liable to location by military warrants; and the offering them at public sale, after ninety days' public notice, through a proclamation of the President, without objection on the part of the State, should preclude her now from setting up title adverse to patentees of the same land, who, by her standing silently by, were encouraged to make such purchases.
That she has no right, under the Swamp Land Act, to the lands within the fifteen mile limits, selected by her own agents, under the grant to her by the prior Railroad Act, and which latter selections have long since been certified to her, and by her disposed of to other parties, in fee. The latter mentioned act was earlier in date; the reservation by the President came in aid of that law, to enable him to separate the granted from the ungranted land, for the purposes of the railroad, and the grant being of the alternate sections, to the extent of the deficiencies arising from the sold portions of the alternates, within the six miles, they were as much the subject of present grant inplace outside of the six miles as within, to the extent of the said deficiencies, which might or might not absorb the whole, and that it therefore necessarily included what might have been swamp land in such alternate sections. The General Land Office appears to have regarded the fifteen mile limits as merely withdrawn from market by the President, for the purpose of ascertaining with due certainty, the granted land under the Act of 20th September, 1850, as it has sanctioned selections within those limits, as swamp land, not interfering with the prior grant, regarding the purposes of the law, under the first act, as accomplished, when the extent of the grant was ascertained, and the actual reservation under the authority of the law, in regard to the land therein, as extending only to those tracts necessary to complete the grant for the railroad. With this determination, making both laws harmonize with each other, as far as practicable, and extending the provisions of the latter law to its utmost equitable limits, I have no disposition to interfere, believing that substantial justice has been done to the State under both laws, and even beyond what would have been
accorded under a more rigid exercise of the rule, with regard to reservations. That in regard to the Act of March 2, 1855, its provisions are mandatory, and no selections conflicting with sales or locations with military warrants or scrip, can be approved, listed, and patented to the State, but must be patented to the purchasers or locators, and the purchase-money or other land given to the State, upon her compliance with the terms of that law, and the instructions of the Department, as to the proof of the swampy character of the land embraced in such sales or locations. That the extent and character of her claim is not determined by the selections reported by her agents, wherever I am satisfied that fraud, illegality, or error exists. The law imposes the duty on me, of making accurate lists of this swamp land, and although it is evident that they cannot be done except through the agency of other persons, it was not designed, that, when I had taken the necessary means, in a general way, of arriving at results, my judgment and conscience were to be entirely surrendered, and I be made the mere passive instrument to carry out the acts of those agents to any extent indicated by their compliance with the forms of the instructions given them. I feel bound to withhold my sanction whenever I have good ground to believe that illegal and improper selections have been made, until I am satisfied of the contrary; but convinced by experience that the existing mode of determining those questions of conflict is onerous and oppressive to the States, I think a change is called for, and I have no doubt a plan can be devised, which, while it will protect the public interests, can be made perfectly satisfactory to the States, and bring to an early conclusion the harrassing difficulties attending the execution of the Swamp Land Act. Upon this latter point, I should like the expression of your views, (based upon a more thorough knowledge of all the details of your office, with which it may be connected,) either before or after a consultation with the Governor of Illinois on the subject. My present inclination being towards a project which will fix a definite period, beyond which, (except in extensive frauds, or very special cases,) no further objections will be heard ; that prior to that time, free access should be had by all, to full information as to what land had been selected ; that all objections be made under oath, by persons whose credibility, &c., is fully vouched for; and after the expiration of the time fixed as above, a day be appointed for the hearing of testimony in all the cases in any one county, and the determination be final.
Be pleased to convey to the parties interested, the result of this action on the general question, and at as early a period as possible, carry out to completion, the point yet left for future consideration.
R. M-CLELLAND, Secretary. Commissioner of the General Land Office.
No. 557. In relation to the land grants for the Little Rock and Fulton Railroads. The definite location of the road will locate the grant upon the proper number of even sections.
June 7, 1857. Sir :-The Act of Congress, passed February 9, 1853, (No 216,) gives and grants to the States of Missouri and Arkansas certain lands for the purpose of making a railroad from the mouth of the Ohio, by way of Little Rock, to Fulton, on the Texas line, with branches. This act vests the fee-simple
title in the States to which the lands are given. A legislative grant by Congress does of itself, proprio vigore, pass to the grantee all the estate which the United States had in the subject matter of the grant, except what is expressly excepted. This principle has often been ruled in the courts, as you will see by reference to the following cases. United States v.Perchman, 7 Peters, 51; Mitchell v. United States, 9 Peters, 711; United States v. Brooks, 10 Howard, 442; Leuener v. Price, 12 Howard, 59; Ladiga v. Roland, 2 Howard, 581; Godfrey v. Bradley, 2 M Lean, 412. The point is firmly settled, if the highest judicial authority can settle anything; and even if there had been no decision of it, I should think it too plain, on original principles, to admit of a doubt. When Congress says that a certain portion of the public domain of the United States “is hereby granted” to a State, what need can there be of any further assurance, in order to give the State a perfect title in fee?
The Act of August 3, 1854, (10 Stats. at Large, p. 346. See No. 249) most manifestly does not apply in any manner whatever to the lands granted in 1853, to Missouri and Arkansas. That act, (Act of 1854,) prescribes the duty of the Commissioner of the General Land Office, in regard to legislative grants, where the law does not convey the fee-simple title, or require patents to be issued for the lands. The Missouri and Arkansas grants are not of that kind.
The definite location of the road will locate the grant upon the proper number of even sections on each side, with which the United States shall not previously have parted with the title; and the selections of the Governor's agent will determine what sections or parts of sections are to be taken instead of those sold or subject to pre-emption. Then the title to each particular parcel will be as complete as if it had been granted by name, number or description.
The survey required by the first section of the law, will enable you to know what lands are appropriated by the mere location of the route for the railroad, and I presume you will also be informed, in some authentic way, of the choice made by the Governor's agent. I can see no objection to your furnishing lists of those lands to any person who desires to make a proper use of them, just as you would give other information from the records of your department; but such lists can have no influence on the title of the States.
The States of Missouri and Arkansas will hold these lands in trust for certain purposes, and the mode in which the trust shall be executed is prescribed in the act making the grant. What those States can rightfully do with the lands, or what remedy the United States will have, if they do wrong, are not questions for you or me to decide at present.
I have the honor to be,
J. S. BLACK. Hon. J. Thompson, Secretary of the Interior.
By the Act of 17th May, 1856, separate grants were made to the States of
Florida and Alabama. No more land can be selected by either State than is sufficient to satisfy the quantity of the grant to her, which is determined by the actual length of road within her limits.
DEPARTMENT OF THE INTERIOR,
November 7, 1857. Sir :--After due consideration of the questions involved in the decision by you, and presented in the previous correspondence with Messrs. Wells and Steiger, in reference to the construction to be placed by this Department" upon the Act of Congress of the 17th May, 1856, (11 Stats. at Large, pages 15 and 16. See No. 289,) I fully concur in the opinion expressed in your letter.
The first section of the Act of Congress referred to, makes a grant of land to the State of Florida to aid in the construction of a railroad, “ from Pensacola to the state-line of Alabama in the direction of Montgomery.'
The sixth section of the same act makes a distinct though similar grant to the State of Alabama, to aid in the construction of a railroad “from Montgomery, in said State, to the boundary line between Florida and Alabama, in the direction of Pensacola, and to connect with the road from Pensacola to said line."
The terms and conditions of the two grants are similar in all respects, excepting that an obligation is imposed on Alabama to have the road, in aid of which a grant is made to her, “connect with the road from Pensacola."
On a comparison of the title and provisions of this Act of May 17th, 1856, with the title and provisions of the Act of Sepember 20, 1850, (No. 178,) under which certain questions which arose were referred to AttorneyGeneral Crittenden, the opinion given by him on the 7th August, 1852, appears to be strictly applicable to the questions in this case.
Quoting then his words; (the names of the States only being changed,) “The whole length of the railroad through and within the State of Florida when actually surveyed and definitely located within that State, must determine, limit and define the extent of the grant to that State. And so likewise, the whole extent of the railroad within the State of Alabama as surveyed and definitely fixed, must determine the extent of the grant to that State."
Neither of said States can select more land than has been granted to her, on account of the specific road or part of a road within her limits.
The Attorney-General of the United States, on the 7th June last, communicated an opinion (No. 557,) on certain questions arising under a similar Act of Congress of February 9th, 1853, making a “grant of lands to the States of Arkansas and Missouri.” He therein advised us that the definite location of the road will locate the grant upon the proper number of odd sections on each side, with which the United States shall not previously have parted with the title.”
This opinion directs me how to determine the granting limits as to location.
That of Attorney-General Crittenden enables you to ascertain the extent of the grant as to quantity of land.
The law itself conjoins the location of the limits within which the selections by each State must be made, to supply the quantity of the several grants that may be found wanting, because the United States has heretofore parted with land which would otherwise be granted. It prescribes that
the selections shall be made from the lands of the United States nearest the tiers of sections above specified,” to wit, the six sections in width on each side of said roads, a proviso requiring that the lands selected "shall, in no case, be further than fifteen miles from the lines of said roads."
The location of the roads, on account of which the several grants are made, thus determines the extent of the grant, the location of the grant, and the location of the bodies of land nearest. to the tiers of granted sections, from which each State may respectively select to the extent of the grant to her.
The decision of the General Land Office, communicated to Mr. Wells, the agent of the State of Florida, in the letter of the 24th October last, is therefore affirmed, and you will so advise him. The papers in the case are herewith returned to you.
J. THOMPSON, Secretary. Commissioner of the General Land Office.
DEPARTMENT OF THE INTERIOR,
Washington, February 23, 1858. Sir :--I have considered your reports of the 17th and 22nd instant, on the propositions of W. T. Steiger, Esq., Agent of the State of Iowa, made to this Department on the 5th instant, relative to the terminating lines of the grant to that State for railroad purposes, by the Act of Congress, approved May 15, 1856, (No. 288.)
The adjustment of the grant on these propositions, as exemplified by the map "Y" therewitz, would, in my opinion be proper under the law, with a slight modification, which it is believed the State will not regard as very material.
Mr. Steiger proposes for certain terminating lines, "the middle of the channels, of the Mississippi and Missouri rivers."*
As the law, however, mentions certain points on the “Mississippi river" and 66
the Missouri river,” and as the public surveys extend only to these
* Terminal lines of the grants to Iowa, for aid in the construction of railroads.
Whether the determination of the lines by which railroad grants shall be terminated at the ends, be settled upon general principles, or decided on the words of each particular law, the case of the Iowa railroads is one of great interest.
There are several lines whlch have been suggested for the terminal lines of such grants. lst. Lines passing through the termini of the road, and drawn perpendicular, the straight line by which the termini are united. 2nd. Lines drawn through the termini, perpendicular to the general course of the road, for the twenty miles next the ends respectively. 3d. The lines of the public surveys which approach nearest to the respective ends of a road, and are nearest to perpendicular to the general course for the entire distance, or for the last twenty miles. 4th. Lines drawn through the ends of the road perpendicular to its last course. 5th. Semicircles, sweeping round the termini, with radii of six and fifteen miles. 6th. State lines approached or touched, or water courses at the ends of the road.
The language of the Act making a grant to Towa, and upon which the subjoined decision of the Secretary of the Interior arose, are as follows. "From Burlington on the Mississippi River, to a point on the Missouri River, near," &c. bi From the City of Davenport via Iowa City and Fort Des Moines, to Council Bluffs."
66 From Lyons City, northwesterly to a point of intersection, &c., &c., thence, &c., across the State to the Missouri river.” “From the City of Dubuque to a point on the Missouri River, near Sioux City,” &c.