, 1877-05-05

">rctinns drsj jgnutcd to he afterwards 10.
''cnted; when the route wns fixed their
location became certain, and the title,
(which was previously imperfect, ac--
"quired precision and became attached
"to the lind"
This decision would he in point in its
application to the Northern Pacific Rail-
road Company if the route via the Ska.
git Pass was defnite locatiOn, instead of
generaL route as provided Tor in the 9th
section of the Company charter of
July 2, 1864. If it is within the con.
struetion oJ the Court n defnite locntion,
then our Delegate is correct in his posi-
tion that the Company eau not make the
change desired witlioat permission of
Congress. The Acts of June 3, 1856,
and May s.. 1864, granting lands to the
State of Wisconsin for railroad purposes
(the grants passed upon " Schulenberg
vs.. Harriman), provide for one map only,
and that is a map of defato tcationy
that is, as defined by Mr.. Attorney Gen,
eral Gushing, II location by actual con.
structiGn of road, or by survey and stalk
ing off on the face of the ground in such
manner as to be notice to every one ON
inquiry, that such is the line of railroad.
The Northern Pacific Railroad Acts
provide for t,ro maps; one Of general
route under the sixth section, and one Of
definite IOcatiOn under the third section.
On this subject the Hon. W. II. Smith,
Assistant Attorney General, in IN opin.
ion concurred in and adopted by Hon.
G. DelaRo as the rule of the Interior De-
partment, said: "The Northern Pacific,
unlike the Union Pacific Company, re.
ceiyed no pecuniary aid in bonds of the
Government, and it is argued that this
discrimination was intended to be at
fcctcd by complete protection Of the
grant from outside appropriations until
the line of the road could be definitely
located. This view of the case is greatly
strengthened by reference to the fact
that no provision whatever is made in
the Act for the Withdrawal of the land
by executive order, 1t is unreasonable
to suppose that Congress in making this
grant to aid the Company in building a
railroad and telegraph line through an
uninhabited and comparatively unknown
country, intended to leave the lands
granted open TO adverse settlement until
such time as the line should be definitely
fixed on the face Of the earth, while in
the case Of the Union Pacific Ito which
also pecuniary aid was given and :hc
case of almost every road ever aided by
land grant, the Secretary OF the Inte-
rior was expressly directed to withdraw
the lands granted upon designation of
the general route. 1t is true that power
to order withdrawal to protect the
rights OF the road was in the Secretary,
independent of any special authorize
tion. and that Withdrawals under this
Act have actually been made. But sup
pose the Secretary had declined or omit
ted to make such withdrawal. Would
there have been any protection whatever
PRIOR to definite location! Upon care
ful consideration of the whole question,
am of the opinion that this section of
the Act 9th prohibits the sale, entry or
pre-. emption, either before or after sur
vey, OF all odd sections within the pre-
scrihed limits, as shown by the map of
general route, from the date of the filing
OF said map and its acceptance by the
Department, and that all entries or loca-
tions made within these limits subse-
quent to that date should be cancelled,
and the land held for the benefit OF the
road to await the filing of the map of
definite location"
Even if the view, that the general
route through or via the Skagit Pass
was, within the meaning of the Supreme
Court, a definite location, the Company
could, over the signatures of its officers
and under Its oeal, waive it's rights there
under. This it proposed to do. 1t
needed no Act of Congress to permit it
to do this. II the act OF the Secretary
in withdrawing lands for route via the
Nntchnss Dnsn he illrnnl snch not nnnld