The new daily appeal. [volume] (Carson City, Nev.) 1872-1873, 1873-02-20

led to the abandonment of the reserve in
1868 OF to the extension of the public
lines of survey over said reservation
prior to the REIMBURSEMENT as having
any bearing upon the case and hence
have not considered them.
But the attorney for the r, r. Co. in
sists that the order Of reservation, dated
April %, 1864, was subsequent to the
Act of July /, 1862, granting lands to
said company, and the conditions OF
that grant having been complied with
and fulfilled, SO far as the United States
is concerned the grant takes effect by
relations and the title Of the COM
pany vests from the date of the grant
This view, however, is not III consonance
with the construction uniformly placed
on the terms of this and similar grants
by the Department.
This same view was advanced III refer
ence to the Iowa Railroad grants by Act
of May Is, 1856. The question was pre-
scented to ACKNOWLEDGEMENT Gushing, by
the Department, who, i'll an opinion
dated Dec. 10, 1856, says:
"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 al all or to be Invested according
10 future events: for the State Of iowa
might not except, or might fail to exc
cute conditions annexed to the grant
such for instance as the primary one OF
entering upon the construction OF the
contemplated roads. Ii the Act stopped
here, there would be nothing i'll it to
constitute, on the day o. its enactment,
an actual severance of certain sections
iron, the public domain, or transfer to
the State of Iowa a vested interest III the
same.
1T is not a grant of lands by their
character like 4 grant OF swamp lands to
State, or Il grant of specific sections OF
riparian land fixed at the time by the
course of a river. Instead of this, 1t IS Il
grant Oh a line of Indicated railroads.
TO assume in such n case the grant vests
at once, would deprive the general proprl-
ctor of the use of his land, not only
within six sections of Il line certain, but
anywhere and everywhere within any
possible line. Such an effect is not to
be presumed. To be conceded 1t must
be expressly enacted. But the act does
not leave the question here; it proceeds
implicitly to negative the supposed eff
feet 1t 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-cmp-
ton up to the time When the routes of
said roads are definitely fixed and pro-
vides for the case by granting continS-
emily, substituted lands beyond the orig
inal limits"
'.In my opinion, therefore, the Act by
its text makes conditional grant m pre-
seati, i'll the nature of 4 float and which
does not attach to any particular parcel
of the public lands until the necessary
deternlinative lines shall have been fixed
on the face of the earth rs opins. 2ii. J
In Il decision by the Hon. Secretary
OF the Interior, dated, 20, April 1871, in
Il. Co., in which he fully concrlrs in the
opinion of the Assistant Attorney-Gen-
erul in the case the nature of this grant
was fully considered, the latter officer
is speaking of the terms of the grant,
says:
"The grant was present grant but III
the nature of float until the line of the
road was definitely fixed, when def
nitely fixed it became operative and title
vested.
'.In support OF this the Assistant At
torney-GcncralG quotes the last paragraph
of Mr.. Cushins's opinion given above,
and states:
"Attorney-General Slack says, in q
{l,a Loft,
the road has been made the title to each
particular parcel will be rs complete as;
If it had been granted by name, number
and description % oplns. Al
''And the Supreme Court says III Rail
road VS.. Smith % Wallace so that the
title vests by the location of the road
and in Railroad VS.. Fremont @ Wallace
S9) that title vests when ''the line of the
railroad was definitely fixed on the
ground" From the foregoing 1t Is clear
that the grant became effective upon the
definite fixing of the line Of road and
that the company could have no interest
in the land prior to that date; thus re-
iecting the view contended for by the
r. r. Company.
1t would seem that all the classes of
lands and claims referred to III the Acts
of 1862 and 1864, granting lands to this
company, as excepted from the operation
of the grant should be placed upon the
same footing in adjusting such grant.
Now, in the case of Boyd VS.. B. u Mo.
Riy. r. r. Co. the Hon. Secretary, on
2Sth April, 1871, held that there having
been a valid homestead claim subslstlnS
at the date the right of the road attached
that upon the subsequent abandonment
or cancellation of such claim the land
covered thereby reverted to the United
States and was excluded from the grant
to the r. r. Co.
The Acting Secretary on 10Th August
last. in case of Missouri, Kansas d Texas
r, r. Co. VS.. John Block, HID. claim
ant, held that the homestead claim which
operates to exclude land from railroad
grant must be at the date of the definite
location of the road-or whenever the
grant by its terms became etfective-a
valid and subsisting right, capable OF
being perfected into perfect title. That
if it be such an one as the Board pre-
vided for by Acts Aug. 3, 1916, and June
26, 1856, would confirm it IS such as
would exclude the land from going to
the road because it is a claim recognized
by law as capable of being perfected.
The principle enunciated in the above
decision is regarded as applying equally
tO nre-amDtion eases where the grant is