The herald., 1893-07-27

act making grant to the Northern Pa
ciEc Railroad company, does not re-
q1ire the officers of the land depart
ment to give notice to the local land
officers OF the withdrawal of the odd
sections from sale or pre-emption, it
has been the practice OF the depart
ment in such cases to formally withdraw
them. 1t cannot be otherwise than the
exercise of a wise precaution by the de.
partment to give such information to
the local land officers as NAV serve to
guide Alright those seeking settlements
on the public lands, and thus prevent
settlements and expenditures connected
with them which would afterwards prove
to be useless"
And in the still later case OF the st.
Paul and Pacific Railroad company vs.
Northern Pacific Railroad company t139
U. s., 18) the supreme court, after quot
iug from the case OF Butts We. Northern
Pacific Railroad company, as above,
added: AFTER such withdrawal no in
terest in the lands granted can be ac-
quired against the rights OF the COM
pany except by special legislative
declaration, nor, indeed. in the abGence
of it's announcement, after the general
route is fixed"
This is the latest expression OF the
Supreme court upon that point to which
my attention has been called; was sub.
|, sequent to the decision in Tilley's case,
aHd is, of course, binding on this court.
An order of withdrawal made before
the line of road is definitely fixed is as
applicable to lands within the in
demnity limits as to those with
in the primary limits Of the
grant: for up to that time the grant is
no more attached to specific tracts OF
the one class Of lands than OF the other,
neither being in any way identified.
The sixth eection Of the act of July 2,
1854 (13 STATS, 1862, making the grant to
the Northern Pacific Railway company,
is substantially the same as the sixth
section OF the act of July 27, 1855, in
volyed in the present case. 1t reads:
"T6At the president of the United Statee
shall cause the hands to be surveyed for
40 miles in width ON both sides of the
entire line of said road after the general
route shall be fixed and as fast as may
be required by the construction of said
railroad and the odd sections of land
hereby granted shall not be liable to
sale, or entry, or pre.emption, before Or
after they are surveyed, except by said
company, as provided in this act; bat
the provisions of the act Of September,
1641, granting pre-emption rights, and
the acts nmendatory thereof. and cf>the
act entitled AN act to secure home
steads to actual settlers on the public
domain approved May 20, 1862, shall
be, and the same are, hereby extended
to s1l other lands on the line OF said
road when surveyed, excepting those>
hereby granted to said company. Aud
the reserved alternate sections shall not
be sold BY the government at price
lessithan $3.50 per acre whom offered for
ssle."
In Butts VS.. Northern Pacific Rail-
road company. supra the court
said: "The general route may be
course and direction are determined
try, or from knowledge of It, and is
abe general features of the adjacent
country and tho places through or By
which it viii pass. The officers 81 the
else supervision over the matter, so as
to require good faith on the part Of the
company In designating the general
route, and not to accept an arbitrary
and capricious selection Of the line irne-
spective cf the character ofvthe country
through which the road is to be con-
structed. When the general route of
the roadis thus fixed in good faith, and
informatiep. thereof Is given to the land
department. by filing map thereof with
the commissioner of the general land
Office or the secretary of the interior, the
law withtraws from sale or pre-emption
the odd sections to the extent of forty
miles on each side. The object of the
law in this particular is plain. It is to
preserve the land for the company to
which, In aid of the construction Of the
road, 1t Is granted"
The language of the sixth section of
the two acts being In substance and al
most literally the came, the language of
the supreme court above quoted is
equally applicable to this act. II
as there held, the law itself withdrsws
from sale or pre-emption the odd Soc
tions to the extent OF 40 miles on arch
side of the road represented by the map
of general route, msnifestly it withdraws
from sale or presumption the odd sections,
within the limits named in the grant
on each side Of the line of road "a fixed
by the map OF definite location. Such
being the true construction OF the stat
ute itself, as thus declared by the,s ,su-
preme court, 1t should seem to result
necessarily that all OF the odd sectiona
within the indemnity as we'll as the pri-
mary limits of the grant contained In
the act OF July 81, 1866 were withdrawn
from sale or preemption, without regard
to the order Of withdrawal promulgated
by the secretary Of the interior,
throught he commissioner of the
general land Office, and conse-
quently they were not open to en-
try or settlement at the time of the de-
fendant's entry and settlement thereon;
for az has been seen, the court declares
that the law itself worked that result.
"The object OF the law" said the court,
"in this particular is plain: it is to pre-
serve the land for the company to which,
in aid OF the construction OF the road,
it is granted. Although the act does
not require the officers of the land de-
partment to give notice TO the local land
Office of the Withdrawal OF the odd Sec
tions from sale or preemption, it has
been the practice Of the department in
such cases to formally withdraw them.
It cannot be otherwise than the exercise
OF wise precaution by the department
to give such information to the local
land officers as may serve to guide Alright
those seeking settlement on the public
lands, and thus prevent settlement
and expenditures connected with them
vh;ch sryould oftarwa rda nraua f0 ho rra