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State proposes to show on a map the localities in which the route will fall, it is evident that the map must connect the route with the lines of the public surveys, showing the specific sections of land through which the road will be built, and thereby the exact line upon the earth on which the route will fall; otherwise, the location is not definite,” nor is it thereby indicated precisely, where the limits of the grant in place will fall. Even then we cannot regard a location on a map, as “ definitely fixing" the route, till it is concluded that no subsequent act of the State, or of the United States, shall change that route; and this cannot be assumed either by the grantor or grantee, until both are committed by their proper officers or agents, to a recognition of one and the same line of location.
In the case now before me, it appears that a map of the line of the railroad, “from Fon-du-Lac, on Lake Winnebago, northerly to the State line,” was, on the 3d December, 1857, accepted as the basis of the adjustment of the grant to Wisconsin, to aid in the construction of said railroad. This map is so marked as to indicate the actual staking off on the ground, at various dates in May, August, and December, 1856, of a part of the line of the road, viz., commencing at Fon-du-Lac, and running north to a point near the west end of Lake Shawano. At this last named point, a line of a survey, apparently of a preliminary character, commencing at the State line, October 6, 1857, and extending from north to south, closes with the part of the line previously mentioned on the 16th October, 1857. As this survey last mentioned extended from six to ten miles per day, it is evident that the line could not be marked off and staked along on the surface of the earth; and so the depositions tend also to show the fact to be. When
you accepted the map, December 3, 1857, the townships through which the proposed road is to pass, had been surveyed only as far north as the north line of township thirty. Your acceptance therefore, can be regarded as the date of the vestiture of the title to the odd numbered sections thereby determined to lie within the granting limits of the line of location from near the west end of Lake Shawano, in section 29, of township 27, range 16, to the north line of township 30 north, range 15, east but the acceptance must be regarded merely as preliminary, for that part of the proposed line of road, which extended through lands unsurveyed, and townships not subdivided. The marking on a general map of the region of country, the line of a preliminary survey of route through an unsurveyed region, can show only the relation of the proposed route to great natural objects, which may or may not be properly laid down on the map. Nothing is thereby “ definitely fixed.” No odd sections are reserved and set off from those with even numbers. It will be necessary for the State after the public surveys are made, to cause to be prepared and filed in your office, and in the local land offices, maps showing the connection of that part of their route, with the lines of the public surveys, which, when accepted by you as correct, may be regarded as determining and definitely fixing that part of the route, and the limits thereto conjoined, within which lands are granted inplace and reserved to the United States, to be sold at the enhanced price.
As a matter of precaution in such cases, I deem it proper that evidence of the filing of a copy of the map, at the local land office for the district in which the lands lie, be furnished to you, before final action is had by your office thereon. To await the "definite fixing” of the locations of railroads, to aid the construction of which grants have been made to States, and to facilitate the final adjustment of such grants, large bodies of public lands have been withheld from market; but when the State has not taken the
steps necessary to vest the title to any of the lands in herself, they are subject at any time to be restored to sale.
In the cases now before me, I am of the opinion, and so decide, that there has not been a vestiture of title in the State to the odd numbered tracts between the six and fifteen mile limits of any part of the line of railroad from Fon-du-Lac, northerly, to the Wisconsin State line. The grant has not been adjusted for quantity; the Governor has not selected specific tracts, nor has the Secretary of the Interior, as is prescribed by law, approved the lists of such selections. We are simply reserving those odd numbered sections in view of a future adjustment.
Under your instructions of the 27th July, 1858, the land officers at Menasha, have refused to admit pre-emption entries of lands in townships which were unsurveyed, when your notices of June, 1856, Nɔs. 560 and 566, were issued, and when your special order of December 18, 1856, was received by them. In their observance of the instructions of July, 1858, they will be sustained; and the sections in unsurveyed townships which fall into the odd numbers will be regarded as withdrawn by those instructions from claim by pre-emption, so long as those instructions are in force, and unchanged.
There was a time however, (prior to the receipt at the local land office, of your letter of the 27th July, 1858,) when the officers at Menasha, acting in good faith, and with some good reasons for their opinions, thought that the townships, which had not been surveyed when the orders of 1856 were issued, were not included therein. Strictly construed, those orders reached only to lands which were in market at the date of withdrawal, and in this view, the local officers, after the return of surveys of additional townships, appear to have regarded such townships as falling under the operation of the pre-emption laws, and consequently they allowed pre-emptions therein, until otherwise instructed by you. Even if it be admitted that the local officers did not properly construe and apply the instructions of 1856, and it appears that the officers and pre-emptors have acted in good faith, I am of the opinion that those pre-eniptors who did effect entries in odd numbered sections, outside the six mile limits of the road, ought to have their entries confirmed and carried into patent.
If the entry of Closson Shurtluff was cancelled, for the single reason that a title to the land he claimed had vested in the State of Wisconsin, I am of the opinion that his entry should be reinstated.
In reference to the claims of Bracy, Helmky, Newton, Pier and Moody, I remark, that the lands which they claim to have settled, are also outside the six mile limits of the railroad line. The public notice, No. 594, if such notice was necessary for that purpose, did restore the townships 27 and 28, of range 18, to entry by pre-emption, until your order of the 9th April, 1858, and the diagram therewith enclosed, reached the Land Office at Menasha, which the Register certifies was on the 15th day of that month. The pre-emptors in the townships described in the notice, No. 594, as restored to pre-emption at Menasha, on the 5th April, 1858, who had effected settlements in good faith, prior to the 15th day of that month, and who came forward within three months, and offered to file their declaratory statements, did all in their power to comply with the pre-emption laws, and if they have heretofore been refused the privilege of making the proper proof and payment for the lands, which they have so settled and claimed, they are now entitled to do so.
The local officers will, however, observe your orders of the 9th April, and 27th July, 1858, as excluding settlements and claims by pre-emption, accruing subsequent to the receipt by them of those orders respectively.
The papers which you report, with the map of location of the railroad line, are now returned to your office.
J. THOMPSON, Secretary. Commissioner of the General Land Office.
In adjusting Railroad grants, the general Land Office will transact the business with the State authorities only.
DEPARTMENT OF THE INTERIOR,
Washington, July 18, 1859. Gentlemen :-Your memorial, dated the 8th instant, asking a recognition by this Department, of your claim, and the issuance of a patent to you, as trustees of the Lacrosse and Milwaukie Railroad company for certain lands along that part of the line of said railroad, which extends from Portage City to Tomah, Wisconsin, has been received and carefully considered.
Several of the matters to which my attention is thus invited, were before me in August 1858, and under date of the 5th of that month, I addressed a communication to N. P. Stanton, Esq., the President of the Lacrosse and Milwaukie railroad company, which explains the position of this Department, in reference to the controversy between the executive of the State, and the railroad company. A
copy of that communication is enclosed for your information.
It seems to be unnecessary to add much to what is there said, in order to reply to all your propositions. It is deemed proper, however, to remark, that the Act of Congress of June 3, 1856, which is the basis of the action of this Department in the case, has made a grant or grants to the State of Wisconsin, and it has been the uniform practice, in adjusting similar grants in the general land office, to transact the business directly with the State authorities, and with them alone.
Parties who seek the recognition or completion of the title of the State to any particular lands, must therefore obtain the intervention of the State officers, and it is not necessary for us to entertain or consider questions which arise upon State legislation concerning the lands; questions which appear to be more appropriate for the State authorities or the courts.
This position is more manifestly proper, when it is considered that in the received construction of existing laws of Congress, a patent is entirely unneccessary to assure the title of the State to any of the lands granted by Congress, for aid in constructing railroads. These grants are accepted by the States with conditions, and so long as those conditions are complied with by the States, the title of a State to any granted tracts, will be duly respected by all the officers of this Department.
J. THOMPSON, Secretary. Greene C. Bronson and others, New York City.
Where the Governor of the State and the officers of the company, certified
the location of a railroad, as that made under the law, objections by others cannot be permitted to arrest the adjustment of the grant.
DEPARTMENT OF THE INTERIOR,
Washington, August 29, 1859. Sir:-Herewith are returned the map of the route of the Transit Railroad, Minnesota, and the papers relative thereto, which accompanied your report of the 26th instant. This map is recognized by the Governor of the State, as a correct map of the location of the road, under the law of Congress, making the grant to aid in the construction of a railroad from Winona, via St. Peters, “ to a point on the Big Sioux river, south of the forty-fifth parallel of north latitude, for so much of said road as lies between Winona and the west line of range No. 31.” Beyond that, the public surveys have not yet been extended, but as far as the location has been made, the line of route is reasonably direct, and the general course of the road is undoubtedly such as was contemplated by the Act of Congress, of 3d March, 1857, (No. 312,) by which the grant was made.
It appears to be a matter of right with the State, and of convenience to the United States, to have the adjustment of the grant proceeded with, as far as the United States surveys have progressed.
Sundry individuals appear to have caused another route to be examined by a competent engineer, who reports that the State might have adopted a more direct route than that now certified to us, but the Government of the State and the officers of the company, have certified the location before us, as that made under the law, and as the cheapest and best route between the extreme points on the map, making St. Peters an intermediate point; and the objections cannot be properly interposed before this Department, to arrest the adjustment of the grant, according to the line of location, recognized by the State authorities.
One informality in the certification of this map, is observed. The Governor's certificate refers to his having caused the great seal of the State to be thereto attached, but in fact the seal is wanting. You can return the map to the Governor, and call his attention to the fact, as the seal ought to be supplied before the Department is fully committed in the premises. When that is done, there will not be any obstacle before the Department, which ought to prevent the recognition of the map as the basis for the adjustment of the grant along the line of route thereby platted.
J. THOMPSON, Secretary. Commissioner of the General Land Office.
Swamp Land Selections.
SWAMP AND OVERFLOWED LANDS. .
[Congress, by an Act approved 2d March, 1849, (No. 166,) entitled " An Act to aid the State of Louisiana, in draining the swamp lands therein" granted to said State, "the whole of those swampand overflowed lands, which may be or are found unfit for cultivation,” with certain exceptions, to wit: “lands fronting on rivers, creeks, bayous, water-courses, &c., which have been surveyed into lots or tracts, under the Acts of third March, eighteen hundred and eleven, and twenty-fourth May, eighteen hundred and twentyfour.” This grant is peculiar to the State of Louisiana.
By an Act approved September 28, 1850, (No. 182,) entitled, “An Act to enable the State of Arkansas, and other States, to reclaim the Swamp Lands' within their limits,” Congress grants to the State of Arkansas, “ the whole of those swamp and overflowed lands, made unfit thereby for cultivation,” lying within her limits. The 4th section of said Act extends the benefits thereof to “ each of the other States of the Union, in which suck swamp and overflowed lands, known or designated as aforesaid, may be situated.' By this Act, the lands in Louisiana, excepted from the Act of 23 March, 1849, are granted to that State.
In adopting a basis upon which the lands of this class should be ascertained, the State authorities were requested to indicate a method of selection which they would adopt in adjusting the grants. With the exceptions of Michigan, Wisconsin, Alabama, and California, the States affected, agreed to ascertain the lands by examination in the field. Michigan and Wisconsin adopted the field notes of the survey as the basis of their acceptance. Alabama and California, have not indicated any course of selection, as the basis of their acceptance.
By the Act of Congress, approved March 2, 1855, (No. 275,) it is provided, that the President of the United States cause patents to be issued to those who have made entries of public lands, claimed as swamp lands, prior to the issue of patents to the State, provided, that where the State has disposed of any tract of said land, prior to the entry of the same under the preemption or other laws of the United States, no patent shall issue until the State has relinquished its claim thereto.
This Act provides indemnity to the States, for the lands thus disposed of by the United States Government, upon complying with certain requirements mentioned in the second section thereof.
The Act, approved 3d March, 1857, (No. 308,) confirms to the State all the swamp land selections, heretofore made, &c., and continues in force and extends the provisions of the Act of 2d March, 1855.]