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

lands i'll the rejected limits of the Nc
Quelumne grant in the Stockton dist it,
California. It was held that, as the
claim under the Mexican grant had not
been declared invalid by the United
States Supreme Court at the time the
grant to the r. r. Co. became effective,
the land was excluded from the opera
ton of the grant, for the lands could not
be deemed and considered rs q part OF
the public domain in such II sense as that
a grant in general terms would attach to
them; but that they were reserved, to
use the terms of the Act of March Sd,
lS53-ard were not relieved until after
tho rejection by the Supreme Court of
the United States. 1t was further held
that the tracts were not IN the grant to
the r. ar Co., if they were reserved
whens The right of the road attached Tor
temporary or apernanent purpose and
that although the objects for which the
reservation was made were afterwards
accomplished, and necessity for it no
longer existed, the lands when restored
would not revert to the Il. r. Co. Upon
a reconsideration of this case by the De-
partment, Acting Secretary, Otto, on the
Dist March, 1871, directed the decision
of Secretary Cox to be carried into effect.
See decision of Department dated July
8, 1871, based on opinion of the Assist
ant Attorney General, dated July l, 1871,
rejecting the right of the W. P. Il. r. Co.
to lands Ill the Roland Grant.
See decision Mr. Secretary Browning
in case of Christian Moeller VS.. Southern
Pacific Il. L. Co.
See also decision of the Department
Of Dist July, 1871, based on the opinion
of the Assistant Attorney General dated
July Is, 1871, in case of Abraham Mus
ick vs.. Mrs. i. McKillip and W. 2. L.
+. Co.
Keeping in view the language of the
grant to c. p. r. Il. Co. and the rulings
of the Department to which reference
has been made that lands covered by
homestead or preemption claim at the
date of the definite location of the road
are kept excepted from the grant it would
be inconsistent to hold that lands reserved
for Indian or other purposes, at such
time should upon their release, eit'Fe to
the grant.
1t would also seem that the principles
which have been laid down by the De-
partment in the cases of Mexican and
Spanish Grants should apply with equal
force to an Indian Reserve existing at the
date the title of the i. Il. Co. vested an
der their grant.
In case the reservation had hec: made
permanent the Il. L. CO. would not, L
apprehend, have asserted claim TO the
lands within its limits. Now if the re-
servation was capable of excluding the
lands from the grant at the date OF
the definite location of the road, 1t seems
to me that there can be 10 question IT'S
to their permanent exclusion from the
operation of such grant. 1t is equally
clear to nly mind that the railroad com
pany acquired no hight to lands i'll the
limits of said Reserve at the date of the
definite location of their road and that
they could moi do SO subsequently.
1t is furthcr;clai,nel by the attorney for
the r. r. Co. that the department III
letters to this and the Indian office, bear
ing date 18th July, 1864, recognized the
right OF the Il. il. Co. to land i'll said
Reserve and hence the case was one of
past adjudication and upon the principle
laid down by the Hon. Secretary III the
case of Lattimer ct al vs.. Iowa Falls
ana ClOuN NtlN htiiioiiti Noiiip'tiiy, 'iis
rights of the r. Il. Co. to the land can
not again be called III question by this
office.
Let us see how this correspondence
came about and what subject was then
under consideration by the Department.
The original order for the reservation
was referred to the Indian Office by the
Department. A copy of the plat and
field notes of the survey of the Reserve
was furnished this office with letter from
Commissioner of Indian Affairs dated
May II, 1864, and on the 10Th July,
1864, the same office transmitted to tins
Office copy of the order for the reserva-
ton. The Hon. Secretary OF the lnte-
rior in the letter to this office dated the
18th July, 1864, referred to above, hay
ing under consideration the protest OF
certain settlers on said reservation to the
appropriation of the land for Indian pur
poses stated: ''The President has order
ed the reservation of the land; and from
the Dlats before me it appears that 1t
will fall within the strip of country
through which the Pacific Railroad will
probably pass. To promote tho well
being of the Indians and to facilitate the
construction of the Pacific Railroad it is
important that depredations should be
prevented"
On the same date the Hon. Secretary
addressed letter to the Commissioner
of Indian Affairs directing him to i'll
struct the officers of the Indian service
in Nevada, that the timber on this
reserve must be ''preserved from waste
and depredations, and that SO far as it
was cut and removed must be applied
directly to the erection of improvements
required for Indians and is MOTTO be sold
OF exchanged for the benefit of the In
dams indirectly"
''The Pacific Railroad will probably
pass in the vicinity of the reserve and
the Railroad Company may eventually
claim rights in the land should it not be
required for Indian use perpetually."
The title of the road did not vest i'll
lands in this locality until about two
years subsequent to the date of these i'll
structions. Had the reserve been aban
doned prior to that date no one will
question, that lands in said reserva-
ton would enure to the RAILROAD grant.
It will be borne in mind that the Act of
July l, 1862, in the second section grants
the right to appropriate materials from
the public lands to be used in the con-
struction of the road In view of these
facts it is apparent that the object of the