The Dalles times-mountaineer. [volume] (The Dalles, Or.) 1882-1904, 1893-06-03
IMPORTANT DECISION.
DEPARTMENT OF THE INTERIOR,

DEPARTMENT OF THE INTERIOR,
WASHINGTON CITY. d. c.. May l3. '93.
To the Commissioner of the General Lana
Office.
SIR:-By letter of March 9, 1892, Messrs
Copp & Luckett, attorneys for certain set
tiers upon lands within the conflicting limits
of the grant made by the act of July 2,
1864, (l3 Stats 1861 for the Northern Pa
cific Railroad Company, and that made by
the act of February 27, 1867, IA Stats. 409)
for The Dalles Military Wagon Road, re-
quested that their clients be permitted to
make entry of the lands settled upon. under
departmental decision of February II, 1892,
ia l.. D. 1877.
This conflict occurs opposite the uncon.
structed portions of the Northern Pacific
Railroad, extending from WalluIa, WASH,
to Portland, Ore the grant appertaining to
which was declared forfeited and the lands
re -tored to the public domain by the act of
congress approved September %, 1890. (36
Stats. 496).
The material facts covering the rights OF
The Dalles Company in the premises are
similar to those in the case of the conflict
between the Northern Pacific and the Ore
gon and California Railroad Company, con.
sIdered in the opinion of February II, 1892,
(supra) whe elm it was held (syllabus):
THE grant of the odd numbered sections
within the overlapping primary limits of
the Northern Pacific and Oregon and Cal
lfornla roads east of Portland. Ore, was for
the benefit of the former company, under
the act of July 2, 1864. and the forfeiture
thereof by the act of September 20, 1890,
IS to the extent of the withdrawal made
under the sixth section of the act of 1864;
and under said act of forfeiture, no righ
of the Oregon and California Road are rec
ognIzed within th- said conflicting limits "
In that case, certain of the lands had
been patented to the Oregon and California
Company and suit has been recommended
to recover the title enormously conveyed,
in accordance with the provisions of the act
of March g. 1887, IA Stats. 556).
In the present case, none or the lands
have been patented, and so far as 1 am ad-
vised, there has been no request on the part
of the W ,gon Road Company tor suspen
sion in the matter of restoration of the
lands.
In your letter of March 2S 1892, you re-
port that "the attorneys for the Oregon and
California ask that the order for the restora-
tion be suspended, pending the determIna
tion of the question involved IN the courts,
and the suspension was directed February
9th. and approved by you on March TO-
1892. Precisely the same questions are in
volved in The Dalles Military Road grant,
which is overlapped by the Northern Pa
cifc 1t was therefore con-
cluded, in the absence of any direction by
y to the contrary, to suspend the disposal
Nf ha 10 fna IA
of the grant last named, although no objec-
tion to the rest ration has been made by
the Military Road Company. No order of
has, however, yet been issued"
The question arises, should such suspen-
sion be authorized? Having determined
that the land was included in the forfeiture
declared by the act OF September 20 1890. |
(suprd), I am of the opinion that, az de- |
clared by the act, they are part of the |
public domain and that no suspension |
should be ordered to await the result of any |
action In the courts, contemplated by those |
aggrieved at my decision in the premises.
In the case Cf the Wisconsin Central rail- |
road grant, no l.. D 63), it was held that |
certain lands were excepted from the grant |
and the application for suspension was made |
by the company, pending judicial proceed !
lngs. This was denied I'll L. D., 6l5). and |
therein it was stated:
''lf such action should be taken in the |
present instance, it is not seen how it could |
well be refused where any claim is set up to |
a tract of land. Anyone claiming rights as
a settler or entry man, which have been |
passed upon adversely by this department,
would have a right to expect that the par
ticular tract claimed by him should be held |
in reservation until he had his rights finally |
adjudicated by the supreme court of the
United States"
This applies with quail force to the case in
nand, and l have therefore to direct that no
order of suspension issue, but that the set.
Tiers upon such lands be permitted to make
entry thereof, as in other cases provided.
Herewith are returned the papers.
Very Respectfully,
(sgd) HOKE SMITH,
Secretary.
6. G.. !!