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of Urania by the Packs (who are parties here represented) they found a settler named Josh Miles on the 80 acres which is now a part of Urania, my home; he had not even applied to homestead it, but the Packs not only refused to file on it, but advised Mr. Miles to file homestead application and even told him that he could apply for 160 acres. Miles was in actual, peaceable possession and had prior rights which had to be respected, and the Packs were fair and liberal in their dealings. This 80 acres was just as valuable as contiguous lands which were located at that time, but it was not subject to entry so long as an actual settler was in possession, and Miles did not make final proof for many years after.

It surely can not be presumed that the New Orleans Pacific Railroad was given greater rights under this land grant to acquire lands than were accorded such entrymen or purchasers as Pack-Woods & Co.; Carpenter and Van Schaick; Atwood Violet & Co., who entered public lands in the midst of this grant and contiguous thereto; and if these great timber interests were forced to respect the rights of actual settlers, and did so, surely Congress did not intend that the New Orleans Pacific Railroad should have exceptional rights over all others. All of the laws affecting the entry of lands would have had to be changed had such been their intention. Our land laws have always given every man an equal show and have protected those who had prior rights. And so I contend that lands within the limits of this great land grant, which were occupied or in possession of actual settlers in 1882 at time of definite location of the New Orleans Pacific Railroad and for which these settlers have not been permitted to acquire patent, as they were entitled to under the law, are still a part of the public domain subject to prior rights of settlers, their heirs, or assigns.

The New Orleans Pacific Railroad indiscriminately filed on every 40 acres that appeared vacant on the books of the General Land Office, without any examination to see if there were settlers on any part of it. Had they followed the course of the other entrymen above mentioned in ascertaining which lands they were entitled to all would have been well. There have been very few cases where these large interests have had to defend their titles because of settlers having prior rights, for the reason that they complied strictly with the land laws.

This proves that the New Orleans-Pacific Railroad did not exercise proper precautions and ignored the homestead laws and the rights of settlers as especially referred to in the act of Congress donating this land grant.

Here are three land plats which show how careful certain entrymen were when locating vacant public lands so as not to conflict with the rights of settlers in marked contrast with the method pursued by the New Orleans-Pacific Railroad, who gobbled up everything that appeared vacant at the General Land Office.

The northeast quarter of the northeast quarter of section 7, and the northwest quarter of the northwest quarter of section 8, township 10, range 2 east, appeared as vacant on the land office records when Pack entered these lands. The Packs' surveyors found J. Miles on land colored red, and although he had not applied to homestead it they cut it out for the reason that it was settled. Urania is now part of

49583-PT 2-14- -11

this 80. Originally there was choice pine timber on the 80, not homesteaded for several years after.

(The paper referred to is as follows;)

[graphic][merged small][merged small]

Mr. HARDTNER. My object in showing that is to show you that Mr. Pack, in entering these lands, wanted everything in a single locality, and in as solid a body as he could get it.

The CHAIRMAN. Pack entered under the timber and stone act, did he?

Mr. HARDTNER. No, sir; under an entry, and paid $1.25 an acre, I suppose.

Mr. BLACK. He bought lands subject to sale and private entry— lands which had been offered at the General Land Office by authority, and then, not being sold at public vendue, it was retired and then could be taken at $1.25 an acre.

Mr. HARDTNER. Here is another plat showing the northwest quarter of the southeast quarter and the northeast quarter of the southwest quarter of section 30, township 12, range 2 east, colored black, which was vacant at time of entry by Atwood Violet, of surrounding lands. There was a settlement on the place. This 80 was not applied for until about the year 1905. There was fine timber on the 80. You will see it is in the midst of the section.

(The paper referred to is as follows:)

[graphic][merged small][merged small]

Mr. BERNSTEIN. Mr. Hardtner, is that within the limits of the

grant?

Mr. HARDTNER. No, sir.

Mr. NORRIS. Then what has it got to do with it?

Mr. HARDTNER. What has it got to do with it? It is just to show how careful entrymen were in filing on vacant public lands so as not to conflict with the rights of settlers; and the same thing was done within the limits of the land grants by the same parties.

Here is one, however, within the limits of the land grant. (The paper referred to is as follows):

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Mr. MCRAE. Is it not true that the regulations of the Land Office require every settler under the homestead law to make that kind of an affidavit?

Mr. HARDTNER. Settler?

Mr. MCRAE. I say, is it not true that the regulations of the General Land Office require every applicant to homestead lands to make that affidavit?

Mr. HARDTNER. Certainly; that it is not settled.

Mr. MCRAE. Not settled and not claimed by anyone else and not occupied.

Mr. HARDTNER. Yes, sir; that is true. That is the point that I am trying to make, that these outside parties, when they entered public lands, did take the trouble to find out if there were settlers on it, because they had to make an affidavit that there was no settlement on it. Otherwise they could not have taken it up.

Mr. MCRAE. The law required them to do it, but the law and the regulations did not require

Mr. HARDTNER (interposing). The New Orleans Pacific?

Mr. MCRAE (continuing). The New Orleans Pacific. They had the same power to do that, but they passed the patents.

Mr. HUNTER. Mr. Chairman, that all comes out of our time, and I do not like to have these interruptions.

The CHAIRMAN. Well, Colonel, Mr. Hardtner does not object to being interrupted.

Mr. HARDTNER. Oh, no; not at all.

Mr. BERNSTEIN. Mr. Hardtner, one question.

Do you know as a matter of fact that under this particular New Orleans Pacific Railroad grant, as we claim, the question or duty of finding out whether there were any occupancies upon the lands to be conveyed to the railroad company was in the Government and the Government officials, and not in the grantee railroad company?

Mr. HARDTNER. No; I was under the impression that the Interior Department treated everybody alike in the acquisition of public land.

Mr. BERNSTEIN. Then you do not know the difference or distinction between the duties of the applicant to enter land at a price to be paid to the Government and the duties of the grantee under a grant such as the one we now have under controversy.

Mr. HARDTNER. I do know that if anything Congress was more particular in giving these lands to the railroads than they would have been to these other entrymen, for they specially told them that they only gave them such lands as were not settled, and I do not think that it was within the province of the United States Government or the Secretary of the Interior to send special agents out to find out what lands were taken and what not. I think it was the duty of the railroad to find that out, and I think Congress intended that.

Mr. MCRAE. Do you mean by that, Mr. Hardtner, that the patent ought to be determined upon the will or consent of the patentee? Mr. HARDTNER. I mean that no land was subject to patent, and if it was patented that the Government would set the patent aside if it could be shown that those lands were settled in 1882, at the time of the definite location of this railroad.

The CHAIRMAN. Certainly there would be force in your suggestion where the patent itself expressly reserved lands within the grants that were occupied by actual settlers. Some of the patents introduced here, or one at least introduced by Col. Hunter, expressly reserves lands within the grant conveyed in the patents which were occupied by actual settlers. That puts the patentee upon notice, and it certainly devolved some duty upon him to inquire what lands within that area were occupied by actual settlers. Otherwise there would have been no purpose of putting it in the patent; nothing could have been accomplished; nothing could have have desired. What have you to say to that?

Mr. MCRAE. Let me call your attention to the decision of the court in the case of Edmund Burke v. Southern Pacific Railroad Co. and Kern Trading & Oil Co., which is the latest expression of the Supreme Court of the United States.

The CHAIRMAN. Suppose you do that in your own time.

Mr. MCRAE. I am just calling your attention, Mr. Chairman, to the fact that the Supreme Court in that decision says specifically that such a clause in a patent is an absolute nullity, and void, and has no effect whatever, either to give notice or otherwise.

The CHAIRMAN. All right.

Mr. HARDTNER. This is the third plat. This is within the limits of the land grant, also showing how particular these private entrymen were in taking up public lands. For instance, in section 8 here they take up everything except lands in the center. They certainly wanted that in the midst of that section if they could get it. But it was settled at the time, but not proved up until many years afterwards and no applications made on it for many years afterwards. But in cruising it they found a settler residing on it, and of course they left it out.

That is the point I want to specially make, that if the railroads had been as careful as other entrymen were in acquiring these lands this trouble would not have come about, and we would not be here burdening you now.

Mr. WHITTINGTON. Is it not a fact that there was very little timber on those particular tracts of land that you are speaking about now that they did not take up?

Mr. HARDTNER. It is not a fact. There is just as much timber on that as any other.

Mr. WHITTINGTON. Was it not in fields?

Mr. HARDTNER. There may have been 10 or 15 acres of fields on it, but in these thousands of acres that these gentlemen took up there would be vast areas af open spots caused by hurricanes and fields that existed years and years ago, where there was not an acre of timber on it. So I contend that these lands that they failed to take up were just as valuable from the standpoint of timber as lands that they did file upon.

The CHAIRMAN. May I ask you how long it will take you to conclude your statement?

Mr. HARDTNER. About 10 minutes.

The CHAIRMAN. All right. I wish you would proceed. I have an engagement that I desire to keep.

Mr. HARDTNER. The vast area which is a part of this land grant was not even surveyed and sectionized until a very late date, some time after the donation to the New Orleans Pacific Railroad. The definite location of the railroad was in 1881 and in 1882. By contract of July 25, 1883, with James K. Bradford the lands in La Salle Parish were surveyed, the actual surveys being made in 1884, and I recall many of the parties who were engaged in this work. I know the conditions myself, because I live there and am familiar with the lands. Mr. BERNSTEIN. Is that not a resurvey instead of a sectionized survey?

Mr. HARDTNER. It may have been a second survey made to correct a former survey of some locations made under Spanish grants.

Mr. BERNSTEIN. Do you mean to say that that land was never surveyed prior to that time-sectionized, I mean; not townshipped, but sectionized.

Mr. HARDTNER. Well, I have no evidence to show that.

Mr. HUDSON. Do you know that we offered the plats of the surveys in the record here to show it?

Mr. HARDTNER. I know that all of the plats of the United States. Land Office show that these land were surveyed, just as I say, by contract of July 25, 1883, with James K. Bradford, and that the surveys

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