Los Angeles daily herald., 1889-05-28

pre- empt10n or homestead claim ndu not a.
| tached at the time the line of the road wa
definitely fixed; and one of the positions takel
s by the Government in that case was that tnt
grant to the company was only Of land situatee
| within twenty miles OF the road but the Cour
D held that the position found 30 support IN Gns
, language of the act OF Congress, which Simply
declared that grant Is made OF land 70 .nt nt
| amount of ten sections per mile on each side OF
I the road "The grant is one of quantity, saic
} the Court land the selection of the lsnd ~, II
subject only to these limitations: ist iouS snas ,me
% Quantities on each side Of the road Sd, thai
it must be on the line OF the road, ana 4In -,
otherwise disposed of by the United States ana {,
presumption or homestead claim must nol no
hays sas stsssfa tU II xed me 'h'
Il In the grant to the Burlington and Missouri
River Railroad Company no indemnity Wss @
1866, and the Act making, the grant to that
| Company, in providing for the issuance OF pat.
ents for the land as the sections of road should
| Of July 81, 1865, for the issuance of such pat,
/ ents cor frming 10 the grantees 1.-The right and
title to said lads situated opposite to ana CO,
tern,inOus lUith said completed action OF sdtd
road" but the provision then was that such
| patents shall issue conveying the right ana
title to said lands to said company as each SIDE
to The s amoant noun G aforesaid." M Us o. s. Stat $685.
And In the course of the opinion (98 u 3; p;
| 340.) the Court laid stress upon the fact that
| the terms OF the grant Q1Q not require une lhuu
to lie contiguous to the road, and'if not contig-
| uous. said the Court, 1t is not easy to say at
what distance the land to be Iselected would
cease to be along Its line. Nor is 1t without
force that in the grant to the Burlington Com
| pany no provision was made for the selection
| of indemnity lands Being simply grant Of
| qnantity, without any limitation as to distance
| from the road the land should be taken. there
| was no need for such provision. In the Act
of July 27. 1865, however, not only is there
provision for the selection of land within ex
! t6ndfd limits to make deficiency drlS
| ing from the disposition of a portion OF the
granted land before the date of the act and the
| have been no need had the grant been inteno-
ed as one only of quantity, but, as has been
seen, the provisions contained in Section OF
| the Act for the issuance of patents as the Sec
| tions of the road should be completed, refer to
| the land granted as being situated opposite to
| and coterminous with such completed see
tions. These considerations, it seems to me-
justify the conclusion that the Act of July 81,
1866, in effect, although not in terms, fixes
lateral limit of twenty miles on each side OF the
| road, within which every alternate section of
pubic land. designated by odd numbers, is
granted, with provision for the selection of
| indemnity lands within an extend ed limit of
ten miles. And although the point does not
appear to have been made in any of the cases
| in which the Act Of July 27, 1865, was under
| consideration, the construction above adopted
| is that which has uniformly been taken by the
Courts. the Land Department and by the only
and of the railroad companies that complied
with the conditions of the grant and earned
l Tue BTduteu
| AS appears from the bill, the lands in con-
| troversy here, and situated along and within
| twenty miles of the line of road of the South,
its plat, fled April 8. 1871, aud as thereaf
ter actually constructed and more than
twenty miles from; but within thirty miles
Company, as designated in its plat filed March
| 10, 1872. Had they been situated within
twenty miles of the designated route of the At
| lantic ano Pacific Company they would clearly
| have fallen within the grant to that Company
and consequently been excluded from the sub
| sequent grant to the Southern Pacific Com.
pany; for If the construction above put upon
the Act OF July 27, 1866, be the correct one
every alternate section of public land, desig
mated by odd numbers, within twenty miles Of
have psssed to the Atlantic and Pacific Com
pany as of the date of its grant. (St. Paul Rail
road Co. vs.. Winona Railroad Company. III Y.
wav Co.. III U. b. 40s, and cases there eited.)
It is contended by the government that all pub
| lie lands designated by odd numbers, and
grant to the Atlantic and Pacific railroad Com.
pany, and also excepted from the grant to the
Southern Pacific Railroad Company by reason
OF the proviso of the 23d section of the Act of
July ~, 1866, which. as has been seen, reads:
"PrOuided, hOtueuer that this section shall in no
way affect or impair the rights, present or
| prospective, of the Atlantic and Pacific Rail
road Company or any other railroad COM
pany"
The reason why. in grants in which a limit is
/
| sections within the limit arc granted, title to
| such sections attaches as of the date of the
grant and why, to & lands embraced % within the
| to selection, is that in the one case the land
granted becomes escertained, and conse-
quently the title ther etO fixed and Perfected, by
the location of the line OF the road, whereas in
| the other case there are no methods known to
| the law by which the lands embraced in the
s1pr To lands to which sfsS1n mo-
\ title could attach prior to selection, / do not
think the Atlantic and Pacific Company had.
at the time of the grant to the Southern PACIFIC
had such right to the particular lands in suit
it has the same right to all other lands to which
And since by the act making the grant the
| Atlantic and Pacific Company was empow cred
to construct its road along the thirty y-ffth
parallel of latitude to the Colorado River "at
such point as may be selected by said company
for crossing thereon by the most practicable
and eligible route to the Pacific Ocean," the
prior to selection, might be applied to any pub
lie land situated between the Colorado River
and the Pacific Ocean with equal propriety as
The - effect Of such a holding would be- to % give
to the prouiSo as broad scope as the granting
clause to which it is appended In other
words, to hold that while purporting to make a
grant to the Southern Pacific Company to aid
in the construction of railroad from point
at or Dssr Tehachapi Pass by way of Los Ange-
les to the Texas Pacific Railroad at or near the
Colorado River the grant in effect was defeated
by the propiso.
While the Atlantic and Pacific Company had,
at the time OF the grant to the Southern
Pacific Company, a clear, present and pros
pectfve right to all lands embraced within the
primary limits of its grant, am of the opin ion
for the reasons stated. that 1t has right of any
nature to any particular piece of land within
the indemnity limits prior to its selection: and
as the lande in question here never were Sc
lected by that Company, but were selected and
except in one case) patented to the Southern
Pacific Company, under the direction of the
less excepted from the grant to the Southern
Pscihc Company by reason of the alleged facts
respecting the Mexican grant San Jose, or by
reason OF that provision of the Act of July 27,
1866, which declares that If said route shall be
found upon the line of any other railroad route
been heretofore granted by the United st tes as
far as the routes are upon the same general
line, the amount of land heretofore granted
shall be deducted from the amount granted by
this act"
In the third section of the act of July ~, 1866,
is to be found the terms of the grant to the
Southern Pacific Company as well as that to
the Atlantic and Pacific Company, since the
| Act of March 1871, refers to Section 1S of the
of the Act of July 27, 1866, and that i'll turn to
tn third section of the same act for the terms
OF the grant. In addition to the prOuiSo to which
the grant to the Southern Pacific Company was
made subject by the Act of March 3, 1871, the
grant to that company was also made subject
to the provision that II the route it was au-
thorized to designate should be found to be
upon the Line 0i any any other railroad
which lands have been heretoBfe granted by
the United States, "as far as the routes are
upon the same general line, the amount of land
heretofore granted shall be deducted from the
amount granted by this act" The grantto the
:, liant In o,ad 90 NJ. A..