Los Angeles herald., 1891-06-25

The Atlantic and Pacific company did
nothing towards locating its line of road
in California until March ~, 1872,
and never did do anything towards
building it; in consequence OF which
congress, in 1886, passed an act declar-
ing its land grant forfeited. In the
meantime, that is to say, March g.,
1871, the grant under which the defend
ant company claims the lands in con-
troversy was made. Those lands were
at that date public lands of the United
States, for it is not pretended that the
Atlantic and Pacific company designated
the route of its road prior to March,
1872, and its grant, as has been seen,
was only for such public lands, desig-
mated by odd numbers and non-mineral
in character, as should fall within the
designated limits and be, at the time
the line of its road should be designated
by plat thereof filed in the office of the
commissioner Of the general land Office,
not reserved, sold, granted, or otherwise
appropriated and free from pre-emption
or other claims or rights. No valid rea-
son, therefore, existed why congress
could not include the lands in contro-
yersy in the grant it made to the South
ern Pacific railroad company. Did it
do so?
The act of March 8, 1871, refers to that
of July 81, 1866. for the terms of the
grant thereby made to the Southern Pa
cific company to aid it in building
road from a point at or near Tehachepi
pass, by way of Los Angeles, to the
Texas Pacific railroad at or near the
Colorado river, for the purpose of con-
Meeting the Texas Pacific railroad with
the city of San Francisco. The grant
was for ten odd numbered sections of
public land, not mineral on
each side of the road. As has
already been said, the lands in
controversy here were at that time
public lands of the United States. They
are within twenty miles of the line of
road the Southern Pacific company was
by the act of March 3, 1871, authorized
to locate and build, and which it did To-
cate and build, and which the govern
ment accepted as having been built in
compliance with the terms of that act,
and which it has since used for its own
purposes. The lands in controversy are
therefore within the primary limits of
that grant, and justly belong to the
Southern Pacific company unless there
be something in the act of March 3,
1871, excluding them from the grant
thereby made to it. 1t is urged that
such exclusion is effected by the conclud-
ing clause of the section making the
grant, which is in these words; PRO
vided. however, that this section shall
in no way affect or impair the rights,
and Pacific railroad company, or any
other railroad company"
1t is plain that this clause is not in
the form of an exception fro m the grant.
Congress was, OF course aware of its pre-
vious grant to the Atlantic and Pacific
company OF date July 27, 1866, and be-
ing desirous of making that to the
Southern Pacific company subordinate
and subject to its previous grants, in
serted the proviso that the grant to the
Southern Pacific company should sin no
way affect or impair the rights, present
or prospective, of the Atlantic and Pa
cific company, or any other railroad
company" This is by no means say
ing, nor is it the equivalent of saying,
that any public lands of the
United States THAT would otherwise be
embraced by the grant to the
Southern Pacific company should be ex
cluded from that grant. 1t was not to
reserve anything to the United States,
but to protect the present and pros
pective" rights OF the Atlantic and Pacific
company and any other railroad COM
pany to which congress may have made
grants of lands that the proviso was in
serted. Had the line of road the Allan
tic and Pacific company was authorized
to build by the act of July 81, 1866, been
definitely located at the time of the
grant to the Southern Pacific company
of March 3, 1871, and had the Atlantic
and Pacific company thereafter built its
road and thereby earned the lands COW
cred by its grant, the lands in contro-
versy would have gone to it without re-
gard to the provision in question; for
its grant which wonld have attached to
such lands at the time of the definite To-
cation of the route of it's road would
have been perfected by the building of
the road and the title thus perfected
have related back to the date of the
grant, July 27, 1866, and of course have
excluded any subsequent grant covering
the same lands. But the Atlantic and
Pacific company had not designated the
route of its road at the time of the
grant to the Southern Pacific company
of March 3, 1871. 1t might do SO, how
ever, thereafter, and might build the
road it was authorized to build and
thereby earn the lands embraced by the
grant to 1T of July 27, 1866. 1t had a
"present and prospective" right to do
so. If it did both of those things, it
would be entitled to the lands granted
to it by that act. If it did not do both
Of those things, it would not be so enti-
tied and the lands would remain as they
then were, public lands of the United
States. Congress, therefore, in making
its grant to the Southern Pacific company
of March 3, 1871, made it subject to
those present and prospective rights.
Had they been perfected by compli-
ance on the part of the Atlantic and Pa
cifc company with the conditions on
which they were based, the title to the
lands in controversy would have become
vested in the Atlantic and Pacific COM
pany as of date July 27, 1866. But as
that company never did comply with
the conditions of the grant and as all
of its rights hereunder became forfeited
in 1886 by act of congress because OF
such noncompliance, there remain no
rights of that company to be, or that
ever can be, affected or impaired by the
grant to the Southern Pacific company
of March 8, 1871. The proviso to the
twenty-third section of that act, in my
opinion, was only intended to protect,
and it's scope went only to the protection
of, the rights of the Atlantic and Pacific
company and any other railroad COM
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