hereby granted," etc.; "but in case it shall appear that the United States have, when the line or route of said road and branches is definitely fixed by the authority aforesaid, sold any part of any section hereby granted, or that the right of preemption has attached to the same, then it shall be lawful for any agent or agents to be appointed by the governor of said state, to select," in the manner provided in the act, indemnity for the said lands so sold or held under pre-emption right.

The act makes no requirement of an executive withdrawal, but vests title at once in the state for the proper quantity of lands, upon the definite location or fixing of the line of road, and allows ninety days after completion of the survey thus fixing the line for the filing of a copy in the offices of the government.

Similar to this is the act granting lands to Missouri, June 10, 1852 (10 Stat. 8), except that the word "location" is used instead of "survey" in the first section, requiring a copy to be made and filed under the direction of the legistature; clearly indicating that the terms "survey" and "location" are identical in meaning and significance.

The act of February 9, 1853 (10 Stat. 155), granting lands to Arkansas, completes the legislation of this particular class.

§ 519. Next comes the grant to Iowa, of May 15, 1856 (11 Stat. 9), in like words of present grant, with indemnity for tracts sold, etc., "when the lines or routes of said roads are definitely fixed," but without any direction for ascertaining the manner of determining what shall be deemed a definite location, and without any provision requiring either the filing of the same in the government offices, or an executive withdrawal of lands.

Grants in precisely similar terms were made to Florida and Alabama, May 17, 1856 (11 Stat. 17, 18, 20, 21); to Mississippi, August 11, 1856 (11 Stat. 30); to Minnesota and Alabama, March 3, 1857 (11 Stat. 195); to Kansas, Michigan, and Wiscon- . sin, March 3, 1863 (12 Stat. 772, 797); to Wisconsin, May 5, 1864 (13 Stat. 66); and to Minnesota, May 12, 1864 (13 Stat. 74).

§ 520. Grant to Union Pacific Railroad.--The act of July 1, 1862 (12 Stat. 459), for the Union Pacific and branches, in terms grants all alternate sections designated by odd numbers, not sold, reserved, etc., "at the time the line of said road is definitely fixed," and makes no indemnity provision whatever. The seventh section requires the filing of a map of general location and a withdrawal thereon, extending five miles beyond the limits prescribed for the grant to take effect on each side; thus

allowing for a possible deviation of ten miles on the definite location from the proposed route, without losing the land thus set apart prior to such location for the satisfaction of the grant. The act of July 2, 1864 (13 Stat. 356), enlarges the grant, but does not materially change its provisions in other respects.

On the main line, from one hundred miles west of Omaha to Salt Lake city, the map of general route was filed, as required by the acts, in June, 1865, yet no withdrawal was made. Not until after the definite location were the lands withheld from settlement, and on a portion of the line not until the road was constructed and in actual operation.

The act of 1864 required the Burlington and Missouri River Railroad Company, preliminarily to a withdrawal, to file a map of its established line with the secretary of the interior, the grant taking effect, however, when the line of said road is definitely fixed." (See section 19.)

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§ 521. Grant to Northern Pacific Railroad.-The Northern Pacific act of July 2, 1864 (13 Stat. 365), grants every alternate section, etc.," at the time the line of said road is definitely fixed and a plat thereof filed in the office of the commissioner of the general land office." The sixth section, however, excludes from "sale or entry or pre-emption, before or after they are surveyed," all the odd sections for forty miles in width on each side of the general route when fixed; thus making a complete legislative withdrawal long prior to the attachment of the grant by definite location of the road, and without any provision whatever requiring an executive withdrawal.

Of the same nature were the grauts to the Placerville and Sacramento Valley Railroad Company, July 13, 1866 (14 Stat. 94); the Atlantic and Pacific and Southern Pacific companies, July 27, 1866 (14 Stat. 292); and the Stockton and Copperopolis Railroad Company, March 2, 1867 (14 Stat. 548). The first and last of these have been declared forfeited by acts of congress, and the lands restored to entry.

The grant to Michigan, June 20, 1864 (13 Stat. 140), provides "that when the governor of the state of Michigan shall furnish the secretary of the interior with maps and charts showing the definite location of the line of each of said roads, it shall be his duty to have the land granted to each of said roads withheld from market and reserved exclusively for the purposes aforesaid."

This provision, substantially, is found in the following grants, viz.: To Minnesota, March 3, 1865 (13 Stat. 526); to Missouri,

Arkansas, and Minnesota, July 4, 1866 (14 Stat. 83, 87); to Kansas, July 23, 25, and 26, 1866 (14 Stat. 210, 236, 289).

§ 522. General Classification.-It will be observed that there are no less than five general classes of grants, all couched in words of present grant, all having relation to date of definite location, but differing vitally in their provisions and requirements respecting the filing of maps and the withdrawal of lands. The first class embraces grants required to be definitely located by legislative authority of the state, and taking effect upon the exercise of that authority, but giving ninety days thereafter in which to file maps of the roads with government offiers, and making no provision for further notice of withdrawal.

§ 523. The second class, comprising the great body of the land-grant laws, covering nearly ten years of active legislation of this character, has no distinctive recital of requirements respecting either the survey of its lines, the filing of maps, or orders of withdrawal; the words being of present grant, taking effect when the lines or routes are definitely fixed.

§ 524. The third class includes the Union Pacific grants, requiring withdrawals in excess of the quantity granted to be made upon a preliminary map of general route, and taking effect upon definite location; upon which maps of general route, as before observed, only a portion of the prescribed withdrawals were in fact made, for reasons which, at this date, I am unable to explain.

§ 525. The fourth class, embracing the Northern Pacific, Atlantic and Pacific, and Southern Pacific, comprises grants protected by legislative withdrawal within stated limits, from the fixing of the general route until vested by the filing of the plat of definite location required by the acts.

§ 526. The fifth class embraces grants couched in terms to take effect upon definite location of the lines, but in which requirement is made for executive withdrawal, as soon as maps showing such location are filed with the secretary of the interior."

$527. Grant to California and Oregon Railroad.-The grant to the California and Oregon Railroad Company was made on the twenty-fifth of July, 1866, and by the sixth section of said act the company was required to complete the whole road on or before the first day of July, 1875. This section was amended by act of June 25, 1868 (15 Stat. 80), which extended the time for the completion of said road to July 1, 1880. The eighth section of the act of July 25, 1866, provides that if the road is not completed within the time limited, the act shall be null and

void, and all the lands not conveyed by patent to said company at the date of such failure shall revert to the United States. Commissioner McFarland, in a letter dated December 15, 1881, says that this provision of the law is plain, and not to be misunderstood, and says: "I must decline to instruct the local offices at Marysville, California, to accept the fees and certify the lists of lands referred to, as they can not now be patented to the Central Pacific Railroad Company, successor to the California and Oregon Railroad Company, by reason of its failure to complete its road within the time specified in the granting act." By the act of 1862 Congress conferred the same powers upon the Central Pacific which it conferred upon the Union Pacific, annexing thereto the same conditions. In the ninth section of the act it is provided that:

§ 528. Grant to Central Pacific Railroad.-"The Central Pacific Railroad Company of California, a corporation existing under the laws of the state of California, is hereby authorized to construct a railroad and telegraph line from the Pacific Coast, at or near San Francisco, or the navigable waters of the Sacramento, to the eastern boundary of California, upon the same terms and conditions, in all respects, as are contained in this act for the construction of said railroad and telegraph line first mentioned, and to meet and connect with the first mentioned railroad and telegraph line on the eastern boundary of California."

§ 529. Present Condition of the Land Grant to the Texas Pacific Railroad Company.-The Texas Pacific Railroad Company is required by act of March 3, 1871 (16 Stat. 573), to file a map of its general route with the secretary of the interior, within two years, and the secretary of the interior is directed to cause a withdrawal of the lands within forty miles on each side of the designated road immediately thereafter; the grant, like others, becoming definite "at the time the line of said road is definitely fixed.”

The map of general route was filed within the two years, and the land withdrawn as the statute directed, which withdrawal has continued in force up to the present time.

The act contains a proviso (section 12 of the act) that the provisions of the pre-emption and homestead acts "shall be and the same are thereby extended to all other lands of the United States on the line of said raiload when surveyed, except those hereby granted to said company."

By section 5 of the supplement act approved May 2, 1872 (17

Stats. 58), the time for the completion of the road is extended to ten years from the date of the last act, and requires the company to construct and complete the whole line from Marshall, in the state of Texas, to San Diego, in the state of California, within that time.

The section also requires one hundred consecutive miles of the road west from Marshall to be complete and in running order within two years after the date of the act, and that the company thereafter continue to construct not less than one hundred miles of the road yearly until completion.

The section also requires that the company shall commence the construction of the road eastward from San Diego within one year from the passage of the act, and construct not less than ten miles before the expiration of the second year, and after the second year not less than twenty-five miles per annum, in continuous line thereafter between San Diego and the Colorado river, until the junction is formed with the line from the east at the latter point, or east thereof.

The company did not comply strictly with any of the requirements of section 5. They did, however, build a road from Marshall westward through the state of Texas, but there is a provision in the bill admitting Texas into the Union, to the effect that all public lands within the boundaries of that state should continue to remain the property of the state, and not become a part of the public domain of the United States. The company, therefore, took no land in that state by virtue of the grant. Section 4 of the original act reads as follows:

"The said Texas Pacific Railroad Company shall have power and lawful authority to purchase the stock, land grants, franchises, and appurtenances of, and consolidate on such terms as may be agreed upon between the parties with, any railroad company or companies heretofore chartered by congressional, state, or territorial authority, on the route prescribed in the first section of this act, but no such consolidation shall be with any competing through line of railroads to the Pacific Ocean."

The Southern Pacific Railroad Company of California not only completed their road to Yuma on the Colorado river, but also (after complying with the railroad laws of the two territories) built a road entirely across the territories of Arizona and New Mexico to El Paso in the state of Texas, and the line of their road as described in the incorporation papers under territorial law is like that described in the congressional law incorporating the Texas Pacific; that is to say, the road was