New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1871-02-14
Public Lands.

The Attorney General has rendered the
following opinion of the authority Of the
government to Withdraw from the market
lands unsurveyed bordering ON the track Of
subsidized railroads:
DEPARTMENT or Jr.Tfcg
February I, 1871.
Hon. Columbus Delano, Secretary OF the Interior:
SIR-Iour comm,lnica ton of the sixteenth
ultimO requesting my opinion upon the
question. neither the President or the Sec
Rotary of the Interior has the power to with
draw from the market and reserve from
sale and other disposal the public lands of
the United States not yet surveyed, falling
within the operation of an act for a grant OF
land to the State of Arkansas, in alternate
sections. to aid in the construction of certain
railroads and telegraphs in said State, ap-
proved March 3, 1868. l. United States
Statues, page seventy-tWO.
The immediate occasion of this call for
an opinion from the department is this, that
one of the aided railroads. that from
Atchison Via Topeka to the western line Of
the State in the direction of Fort MON and
Santa Fe. New Mexico. having alreadr
filed two maps of the definite location d
the road. to wit: between Atchison and EN-
poria and between Emporia and Wachita
which have been accepted by the Secretary
Of the Interior. has now filed map OF the
definite location of the road between
Wachita and Fort Dodge: and You have
been requested to withdraw from pre-emp
ton. homestead. and other disposal the
lands within the limits specified by the act
on each side of the track of this location
Ii the lands were surveyed, no question
would arise: but this part OF the road
traver>es lands which are unsurveyed and
it has been considered questionable whether
they are now subject to the same definite
appropriation for the use OF the road.
| find nothing III the act which in any way
limits the donation to lands already sur
vcyed. When Congress authorized this
company to SO construct its road through
the public lands and gave to it alternate
sections ON each side, it must have been
the intention that the grants should 90 as
far and as fast as the road should 20. The
only difficulty is in indicating distinctly the
lands which shall he thus reserved: but |
think that the reservation can be made and
that the effect of it will be to give to the
company !: preference to purchasers and
claimants by right of presumption or home
stead of such lands within the prescribed
limits as when surveyed shall answer the
description in the grant, to wit. every alter
nate section OF land designated by odd
numbers for ten sections i'll width on each
side of said road.
Claimants by right of pre- -emption and
homestead settlements must take care il
they enter upon u.1snrveyed lands to select
such us shall not belong to the railroad
company under this reservation when the
lands to which the company right has at
tacled come to he defined by survey. In
the language OF Attorney General Gushing
Seventh Opinions, p. 246, such Withdrawal
is the only means of preventing anticipatory
private appropriation IN the case of railroad
grants. Very respectfully
Your Obedient servant,
a. I. AkERMAN. Attorney General.