The Superior times. [volume] (Superior, Wis.) 1870-1912, 1882-02-25
THE LETTER OF THE LAW
Which Determines the Rights of the
Northern Pacific Railroad Company
TO it's Land Grant.

eral. designated by odd numbers. TO the amount
OF twenty alternative sections per mile. on each
side OF said railroad line as said company may
adopt, through the Territories Of the United
States, and ten alternate sections of laud per mile
on.each side of said railroad whenever it passes
sec. g. And be ii further enacted. That the
United states make the several conditional grants
herein and that the said Northern Pacific Rail
road company accept the same. upon the further
conditions that if the said company make any
breach of time for upward of one year, then in
such case, at any time hereafter, the United
states, Dy lis congress, may DO any and all acts
ana things which may be needfut and necessary
to insure speedy completion of the said road.
The power or right reserved by congress to
alter, amend or repeal the charter is as follows:
Sec. 20. And be il further enacted That the
better to accomplish the object Of this act namely
10 promote the public interest and welfare by the
construction Of said railroad and telegraph line
and keeping the same in working order. and to
secure to the government at all times but particu-
larry IN the time Of war; the use and benefits of
the same tor postal, military and other purposes,
congress may at any time, having due regard for
the rights Of said Northern Pacific Railroad com
pany, add TO, alter, amend or repeal this act
This charter is Il contract between the United
states aud the railroad company. and IS to be
treated and construed by the same rules that
govern contracts between private persons, except
only that with respect to the subjectmatter Of the
grant-that Is to say. IN aSCert0ining what Is
granted and what is eXpected-it viii be con
strued IN favor OF the government and against
the company.
The grant to the Northern Pacific Railroad com
pany was an absolute grant in prHsenti. The
supreme power Of diSpOsing Of the public lands
vests solely in congress- and its grants convey the
highest title. In such case the title does not de
pend on and is not conveyed by patent, though
for convenience in the land office and as a1nuttcr
OF record evidence Il patent IS usually provided
for and issued.
That the language of this act operated as a pre-
sent grant is no new doctorine, as some imagine.
1t was held by the supreme court of United States
in lSl7. in the ease of Rutherford against Green's
heirs, in the unanimous decision of the court
delivered by Chief Justice Marshall, and it has
ever since been adhered to by that high tribunal
IN numerous cases and without any exceptions.
In ease decided IN 1870 (92 United states Su-
preme Court Reports, page 40 the court says:
There be and is hereby granted are words of
absolute donation. and import grant in prnscuti.
This court has held that they can have no other
meaning, and the land department, on this inter
probation of them, has uniformly administered
every previous similar grant. The court was
unanimous OH this point; for, III the dissenting
opinion ION another branch of that case the non
concurring judges say: These words were
sufficiently comprehensive to pass whatever in
terest the United States possessed in the lands"
1t does not. in the slightest degree initiate
against the force of the law that the same court
held in other cases that grants containing such
language did not operate as present grants, be
cause congress expressly enacted that the title
should not vest until the performance of certain
conditions.
1t is now matter ofno importance what was
the time specified by congress in various amend
ments of the charter for the construction and
is admitted that the time has now expired. But
it is important to consider what are the consequ-
ences Of failure to complete the road within the
time
II follows from what has already been said
namely, that the grant was Il grant III prHsenti
(and to the same effect are the decisions OF the
supreme COURT that the construction and com
petOn OF the road are conditions subsequent
And. notwithstanding failure TO perform the
conditions within the time specified, the title to
the lands remains uLimpaired in the grantee
ia on "A
that ground. (21 Wallace. United States supreme
Court Reports page 6l.) Until then the right,
title or estate granted remains III the grantee as
completely as it ever existed before breach Of the
condition, without any impairment of its original
qualities or incidents.
But in the grant to the Northern Pacific Rail
road company there is mot only 10 provision for
a reversion to the United States. but there Isl a
clear declaration by congress that the lands
granted are absolutely appropriated TO the com
pletion Of the road. Sections and 20 Of the
charter. above quoted. show an express intention
OF congress to make an irrevocable grant Of the
lands embraced within It's limits tor the purpose
of the construction and completion Of the road,
and to pledge the good faith of the United States
that the road shall be completed 1t is well
established principle of law that when the
grantOr manifeSts, III the grant an intention not
to enforce his right Of entry upon condition
broken. the lands do not revert. nevertheless,
congress did not leave itself without remedy, for
if the grantee prove faithleSs or incompetent,
the Juited States, by which its congress, may be
necessary to insure n speedy completion of the
road but cannot divert the granted lands to any
other purpose.
CONGRESSIONAL AND EXECUTIVE ACTS.
By the Joint resolutions Of congress approved
May Z, 1866. and July /, 1865, the road was to be
completed by the Attn of July. 1873, and year was
then to clapse before the company could be held
in default. For the purpose OF giving assurances
to capitalists and others who might not have
knowledge Of the terms of the grant, the company
applied to the last two congresses for an extern
sion Of the time specified for the completion of
-9l u of
fyorably, and the bills passed the senate, but for
want Of time were not reached on the calendar OF
the house of representatives,, the rules OF that
body requiring a two-thirds vote to take up the
bill out of regular order But in every instance
when the attempt was made it had u majority IN
Iu may 1879, the company filed in the depa tment
of the interior map OF the amended line OF general
route Of the branch in Washington Territory. This
was referred by the secretary, Mr.. Schuf2, to the
commissioner Of the general land office for his views
as to whether any reason existed against the pro-
posed chang The commissioner, Gen. Williamson,
replied that the best interests Of the public would be
served by the change, but suggested the questions
Fist had the grant to the pany lapsed by reason
OF the failure Of the company 70 perform certain acts
within the time sp Gifted and, second, If 1t has
larscd the department recognize any acts by the
company looking to the initiation Of new rights or
the enlargement of old ones
These questions considered by the secretary
and the then assistant attorney gene al for the de-
partnent who about 10 decide both questions
against the comuany when the cOmpa ~. insisting
its legal rights, reques ted that the questions should
be submitted 70 the attorney general This was done,
and GEN DeYens now on the bench of the supreme
conrt Of Massachusetts,, decided that the time spec
fled for the comp elton of the road would not expire
until July T. 1879 and further. that i snch not
the true construction OF the various provisions oil the
acts of congress IT must be held that until congress
takes steps 20 declare forfeiture Of the grant it
mains in full force and ect and that in either
event the grant to-day must be hs!d he the same
as il existed on the day when it made and ac>
cepted by the comp any. Had it not been for the
adveres views OF Secretary SchuIz and Assistant
Attorney General Marble the matter would not have
been u ged by the company 10 be submitted TO The
attorney general.
similar que ticn 20 the last was afterward
sidered by Gen. Degens ia the of the Atlantic
Pacific Railroad company Oh it's application TO the
Secretary Of the interior for the appointment # COM
missi 'ers by The president TO examine complett d
section OF its road In that case Secretary SchuTz
seems to have II his own molten requested the opinion
OF she attorney general TO the power and duty OF
The executive IN the premises The attorney general
held IN his opinion rendered Get %, 1880 that the
grant was present grant, that the conditions We're
conditions subsequent that the grant had not been
fcrelted by failure TO build the road within the time
specified no action by of such ailare having
oeeh taken by authority of cong esq and that even II
it be treated liable forfeiture the company
mas still right 10 proceed 20 construct the road and
II Is the DUTY OF tbs executive department to give 1t
the beneht OF the grant Opinions of Attorney General
Noinme 10, page 516,l The grant 30 the Atl,ntic Il
Pacific is almost identical terms with that the
Northern Pacific company. These decisions not
only in conformity 10 the common law, bat
strictly in accordance with tie uubIokeu series of
decisions Of the supreme court.
In the years 1873 aud 1874 President Grant APP
o. owed $50 miles Of the Northern Pacific railroad In
1880 President Hayes approved $50 miles, and in
November and December, 1881. President Arthur ap>
proved 325 mles Before approving the report ofthe
commi souers who examined 100 miles of the road in
Dakota and Montana Territories, President Arthur
submitted the matter to the acting attorney general
Mr. Philips. who on the 18th Of November last.
commended the approval by rhe president of the
report Of the commissioners and the Of tents
10 the company for the granted lands coterminus
with the completed sections OF the road
GEORGE GRAY.
No. Nassa u ST New York