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At the time of the passage of the act the | 418, 5 L. ed. 257, 294: "Great weight has entire body of the country from the western always been attached, and very rightly atboundary of Minnesota to the Cascade tached, to cotemporaneous exposition." See Range was unoccupied, untraveled, and al- the many authorities on this proposition most wholly unexplored. As said by Sena- collected in Fairbank v. United States, 181 tor Hendricks, when the bill was before the U. S. 283, 307, 45 L. ed. 862, 872, 21 Sup. Senate: "Everybody can see at a glance Ct. Rep. 648. that it is a work of national importance. But notwithstanding this section, notIt proposes to grant lands in a northern withstanding the action of the executive oflatitude where, without the construction of ficers in directing a withdrawal of this land a work like that, the lands are comparative- from sale or entry, it is now held by the ly without value to the government. No court that it was subject to homestead enperson acquainted with the condition of try, and that the entryman acquired a right that section of country supposes that there to obtain title by an entry made eight years can be very extensive settlements until the after the withdrawal. Of course, as I said, government shall encourage those settle- such a ruling nullifies the section. A withments by the construction of some work like drawal from sale or entry which leaves unthis." And by Senator Harlan, the_chair- affected *the right of purchase or entry is an[138] man of the Committee on Public Lands: irreconcilable contradiction. But can there "The Committee on Public Lands agree to be any reasonable doubt as to the meaning report this bill favorably on account of the of § 6, or that Congress intended exactly vast consequence that will attach to the what was done by the executive officers, to completion of the road. The land is to be wit, the withdrawal of all the odd sections conveyed to the company only as the road within the 40-mile limit from sale, entry, progresses. The committee were of opin- or pre-emption? The significant words are ion that if the road should be built the gov- these: "The odd sections of land hereby ernment could well afford to give one half granted shall not be liable to sale, or entry, the land, for the distance of 40 miles on or pre-emption, before or after they are sureach side of the road, to secure its comple-veyed, except by said company." Now it is tion. If it should not be built, no lands said in the opinion of the majority that will have been conveyed." In other words, § 3 defines what is "hereby granted" as the proposition was to give half of the lands [137] within 40 miles *of the road to the company, -not to give as much land as would be equal to half the lands within 40 miles of the road, but to give half of those lands. The difference is obvious. The construction of a railroad increases the value of contiguous lands. Congress doubles the price of the even-numbered sections which it retains. It makes no little difference to a company whether it receives lands along the line of the road which it constructs, lands which have been increased in value by reason thereof, or an equal amount of lands hundreds of miles away, and not so increased in value.

"every alternate section" to which "the United States have full title, not reserved, sold, granted, or otherwise appropriated, and free from pre-emption or other claims or rights at the time the line of said road is definitely fixed," that those lands, and those only, are the ones not liable to sale, entry, or pre-emption, except by the company. It will help to write out the sentence with a substitution for the words "hereby granted" of the definition thereof which is presented, and it will read substantially as follows: The odd sections of land within the withdrawal limits to which the United States have full title, not reserved, sold, granted, or otherwise appropriated, and free The withdrawal was not left to the dis- from pre-emption or other claims or rights cretion of the company, but was to be made at the time the line of the road is definitely by the President, after the general route fixed, shall not from the time of the withhad been fixed, and "as fast as may be re- drawal until the filing of the map of defiquired by the construction of said railroad." nite location be liable to sale, entry, or preTrue, the language is that he "shall cause emption before or after they are surveyed, the lands to be surveyed;" but this, coupled except by the company. Or, to put it in anwith the prohibition against sale or entry, other form, the odd sections within the was tantamount to a direction to withdraw, withdrawal limits, which no one purchases and has always been so regarded by the or enters before the filing of the map of defiLand Department and all parties interested. nite location, shall not be purchased or enThus he was to determine whether the time tered by anybody except the company. It had arrived for a withdrawal. The with- would be a failure of due respect to Condrawal was in fact made. The President gress to use language adequately expressive exercised his judgment and decided that the of the absurdity of such legislation. But time had arrived for a withdrawal, and the Congress never meant any such thing. Land Department through all its officials While it may be that the use of the words proceeded to act accordingly. The direc-hereby granted" was unfortunate, yet what tion in the withdrawal was "to withhold was intended is clear. Congress intended from sale or entry all the odd-numbered to grant the odd-numbered sections and resections falling within these limits." Sure-tain the even-numbered, and while in the ly this action of the President and the Land granting clause some qualifications were Department is entitled to the highest con- placed in respect to the odd-numbered sec sideration. As said by Chief Justice Mar- tions, in order to protect individual rights shall, in Cohen v. Virginia, 6 Wheat. 264, then existing, or which Congress might

Turning to the opinion of Mr. Secretary Vilas, we find him saying (pp. 110, 111, 113, 119):

[139]*thereafter specifically create, yet as Con- | who have contracted with the government gress was here not attempting a precise def- upon the faith of such construction may be inition of what should pass by the grant, it prejudiced.'" used the term "granted lands" as descriptive generally of the odd-numbered sections, to distinguish them from the lands retained, the even-numbered sections. It obviously "But a peculiarity in legislation of this intended that no rights should be acquired, character is found in the 6th section of the either by sale, entry, or pre-emption, to any act, in which a provision authorized the of the odd-numbered sections after the fil-general route' to be fixed, and required ing of the map of general route, and this lands to be surveyed for 40 miles in width whether the lands were surveyed or unsur- on both sides of the entire line so fixed, and veyed. This is made clear by the last sen- directed that the odd-numbered sections tence in the paragraph. It says, "and the granted by the act should not be liable to reserved alternate sections shall not be sold sale or entry or pre-emption before or after by the government at a price less than $2.50 they were surveyed, except by said comper acre." Clearly that meant all the even-pany. In the language of the Supreme numbered sections, and not simply those Court, in Buttz v. Northern P. R. Co. 119 which happened to be alternate to odd-num-U. S. 71, 30 L. ed. 336, 7 Sup. Ct. Rep. 100: bered sections passing to the company. The act of Congress not only contemplates The truth is that in § 3 Congress defines specifically and carefully the lands which it granted. Its attention was directed in that clause to the matter of definition. While in § 6 it was not attempting to define, but to provide for a withdrawal before the filing of the map of definite location, and was simply endeavoring to make effective rights which it intended should accompany such withdrawal.

the filing by the company, in the office of the Commissioner of the General Land Office, of a map showing the definite location of the line of its road, and limits the grant to such alternate odd sections as have not, at that time, been reserved, sold, granted, or otherwise appropriated, and are free from pre-emption, grant, or other claims or right, but it also contemplates a preliminary designation of the general route of the road, and the exclusion from sale, entry, or pre-emption of the adjoining odd sections within 40 miles on each side until the definite location is made.

Again, in Hewitt v. Schultz, 180 U. S. 139, 45 L. ed. 463, 21 Sup. Ct. Rep. 309, it was held that the withdrawal directed by Congress in § 6 coupled with the provision extending homestead and pre-emption rights "The facts which have been recited show to all other lands on the line of the road, beyond all reasonable question that the created an implied prohibition of any with- privilege given to the company of fixing, drawal of lands within the indemnity limits first, a line of general route, upon the basis provided in § 3. It is unquestioned that, of which the odd-numbered sections within whenever a grant had been made of lands, 40-mile limits on either side were to be[141] the power of the Land Department to with- withdrawn from sale or entry or pre-empdraw such body of lands, as might seem rea- tion before and after survey, was fully exersonably necessary for the satisfaction of the cised by the company in Washington terrigrant, had been frequently upheld by this tory, from the eastern boundary to the court. See the long list of cases cited in mouth of the Walla Walla river, and thence the dissenting opinion on page 159. There along the Columbia to the first range line is no express prohibition of like action by west of the Willamette principal meridian, the Land Department in respect to lands and thence north to the international bounwithin the Northern Pacific indemnity lim- dary, by its filing and the department's apits, and the judgment was based solely on proval of its maps of location on the 30th the implied prohibition above referred to. of July, 1870. These maps and the action The opinion of the court rested mainly on taken thereon fully met every requirement the rulings of the Land Department, as pri- of the statute in that behalf. The commarily expressed in the opinion of Secre- pany, by resolution, fixed this line as the [140]tary Vilas in Northern P. R. Co. v. *Miller, basis of withdrawal, made its formal re7 Land Dec. 100, from whose opinion large quest that the land should be withdrawn quotations were made, and in respect to rul- thereon, the line was plainly and sufficiently ings of the Land Department generally, it described, the department accepted it, and was said, conceding that the question in-applied the statutory consequence by directvolved was one of doubt (p. 157, L. ed. p.ing the local land officers in Washington ter472, Sup. Ct. Rep. p. 315):

"It is the settled doctrine of this court,' as was said in United States v. Alabama Great Southern R. Co. 142 U. S. 615, 621, 35 L. ed. 1134, 1136, 12 Sup. Ct. Rep. 306, 308, 'that, in case of ambiguity, the judicial department will lean in favor of a construction given to a statute by the department charged with the execution of such statute, and, if such construction be acted upon for a number of years, will look with disfavor upon any sudden change, whereby parties

ritory to withdraw the odd-numbered sec-
tions along that line as far north as the
town of Steilacoom, first, for a width of 20
miles on either side, and, later in the same
year, within the limit of an additional 20
miles; and also by increasing the minimum
price of the even-numbered sections within
the same limits to $2.50 per acre. Thus,
the action of the company and of the de-
partment co-operated to give official deter-
mination to the fact upon which the statute
became applicable, both to withdraw the

odd-numbered sections and to double the | heretofore stated, the power of the Land Deminimum price of the even-numbered sec- partment to withdraw from private entry tions, and both effects were formally recog. lands which it has reason to believe may be nized and declared. It cannot be doubted necessary to satisfy a land grant has never that, had no other action been taken before been denied. *It is a power which has been [143] the line of the road for construction was exercised again and again from the incepdefinitely located, this action in regard to tion of land grants. In one case (Wolcott the line of the general route of 1870 must v. Des Moines Nav. & R. Co. 5 Wall. 681, 18 have remained continuously operative upon L. ed. 689), we sustained a withdrawal all lands within the limit of 40 miles on made by the department beyond the real either side of the line so established. So terminus of the grant on the ground that obvious is this, indeed, that from the mouth there was some doubt where the grant terof the Walla Walla river, westwardly along ininated, and therefore the department was the Columbia, that withdrawal remains to justified in making the withdrawal cover this day obligatory and operative by force any possible conclusion as to such termiof the statute and of that location. nus. There was in the Northern Pacific act By virtue of that withdrawal the odd-num- no prohibition on the Land Department's bered sections within 40 miles of all that exercise of this customary power. Indeed, portion of the route lying east of the Co- as I have shown, it was held in Hewitt v. lumbia remained for nearly two years at Schultz, 180 U. S. 139, 45 L. ed. 463, 21 least segregated from the public domain, Sup. Ct. Rep. 309, that the express direction and all purchasers of the even-numbered to withdraw lands in the place limits was [142] sections were required to pay the double the foundation of an implied prohibition on minimum price for the land they bought. a withdrawal of lands within the indemnity Having provided the condition up- limits. The purpose and effect of a withon which a withdrawal of the public do-drawal are not to vest any title in the benemain should be operative upon a preliminary general route for the benefit of this company, without any latitude of authority for any other, the legislative will must be regarded as exclusive of any other. Thus, the meaning of the act appears to be that the provisional line of general route should, in the first place, be taken as the line upon which the grant was made, and, during the period while no other line was fixed than such line of general route, the lands in the odd-numbered sections within 40 miles should be taken as the granted lands, and, therefore, they are declared by the statute to be the hereby granted' lands." (The italics are mine.)

ficiary of the grant, but to preserve the
lands from private entry in order that when
the time arrives the grantee may receive the
full measure of its grant. As said in Me-
notti v. Dillon, 167 U. S. 703, 720, 721, 42
L. ed. 333, 339, 17 Sup. Ct. Rep. 945, 951:

"It is true, as said in many cases, that the object of an executive order withdrawing from pre-emption, private entry, and sale lands within the general route of a railroad, is to preserve the lands, unencumbered, until the completion and acceptance of the road. That order took these lands out of the public domain as between the railroad company and individuals, but they remained public lands under the full Thus the court held that, because by § 6 control of Congress, to be disposed of by it the odd-numbered sections were withdrawn in its discretion at any time before they befrom sale or entry, and at the same time it came the property of the company under an was declared that the homestead and pre-accepted definite location of its road.” emption laws should apply to all other This language was quoted with approval lands, there was an implied prohibition up-in United States v. Oregon & C. R. Co. 176 on the Land Department's withdrawal of U. S. 28, 48, 44 L. ed. 358, 366, 20 Sup. Ct. odd-numbered sections within the indemnity Rep. 261. limits. Now it is held that the withdrawal directed by $6 and made by the Secretary of the Interior was absolutely meaningless and secured nothing to the company. If the withdrawal directed by § 6 intended nothing, accomplished nothing, it should not have been made the basis for an implied prohibition of the hitherto unquestioned power of the Land Department to withdraw lands in indemnity limits. There is an incongruity in the two decisions which, to my mind, is, to use no stronger expression, both sad and startling.

Further, the Land Department did in fact withdraw from sale or entry all the odd-numbered sections within the 40-mile limits of the general route,-and this with drawal included the tract in controversy as well as the other odd-numbered sections, and notice thereof was filed in the local land office, and this many years before the plaintiff in error went upon the land. As

Again, in Northern P. R. Co. v. Musser-
Sauntry Land, Logging & Mfg. Co. 168 U.
S. 604, 607, 42 L. ed. 596, 597, 18 Sup. Ct.
Rep. 205, 206, we said:

"The withdrawal by the Secretary in aid
of the grant to the state of Wisconsin was
valid, and operated to withdraw the odd-
numbered sections within its limits from
disposal by the land officers of the govern-
ment under the general land laws. The act
of the Secretary was in effect a reservation."

And the same doctrine has been affirmed in many cases.

*Turning to the rulings of the Land De-[144] partment, in Hestetun v. St. Paul, M. & M. R. Co. 12 Land Dec. 27, 28, it was said by Secretary Noble:

"The legal effect of the withdrawal is to preclude the disposal of the land covered thereby under any of the land laws. In other words, so long as the withdrawal remains in force, the land covered thereby is

simply held for the purpose for which the withdrawal was made."

And again, in the same volume, in Re Chicago, St. P. M. & O. R. Co. (pp. 259, 261):

his settlement, inasmuch as the land had been withdrawn by order of the Land Department, Secretary Teller saying (p. 553):

"The settlement by Pressey upon the odd section was clearly in violation of the order of withdrawal, and he could acquire no rights or equities under such a settlement."

In Northern P. R. Co. v. Miller, 7 Land Dec. 100, a case in which the implied prohibition of the withdrawal of indemnity lands was first distinctly decided in the Land Department, Secretary Vilas said (p. 110) in reference to the withdrawal of lands within the place limits of the line of general route:

"In the case of Riley v. Welles [154 U. S. 578 and 19 L. ed. 648, 14 Sup. Ct. Rep. 1166], referred to and quoted in the Shire Case [10 Land Dec. 85], it was said by the Supreme Court that settlement upon and possession of land within the limits of an executive withdrawal were 'without right,' and that the subsequent recognition by the land officers of such settlement and possession, and the permission to the party to make proof and entry under the pre-emp "Thus the action of the company and of tion law, and the issuing patent were acts the department co-operated to give official in violation of law and void.' This case of determination to the fact upon which the Riley v. Welles has never been overruled or statute became applicable, both to withdraw modified, but has been referred to and ap- the odd-numbered sections and to double the proved in a number of the decisions of the minimum price of the even-numbered secSupreme Court, and must therefore be ac- tions, and both effects were formally recog cepted as expressing the opinion of that nized and declared. It cannot be doubted tribunal as to the absolute invalidity of set-that, had no other action been taken before tlements upon lands withdrawn by executive order."

In Re Hans Oleson, 28 Land Dec. 25, 31, Secretary Bliss thus defined the word "with drawal:"

"In the nomenclature of the public land laws the word 'withdrawal' is generally used to denote an order issued by the President, Secretary of the Interior, Commissioner of the General Land Office, or other proper officer, whereby public lands are withheld from sale and entry under the general land laws, in order that presently or ultimately they may be applied to some designated public use, or disposed of in some special way. Sometimes these orders are not made until there is an immediate necessity therefor, but more frequently the necessity for their making is anticipated."

And in the same volume (Inman v. Northern P. R. Co.) the same Secretary uses this language (pp. 95, 100):

"From the authorities cited the following 145 rules are clearly deducible: First. Subject only to the control and power of disposition remaining in Congress, an anticipatory withdrawal, whether legislative or executive, during the time it remains in force, withholds the lands embraced therein from other appropriation or disposition, and prevents the acquisition of any legal or equitable title or right by settlement or entry in violation of such withdrawal."

the line of the road for construction was
definitely located, this action in regard to
the line of the general route of 1870 must
have remained continuously operative upon
all lands within the limit of 40 miles on[146]
either side of the line so established. So
obvious is this, indeed, that from the mouth
of the Walla Walla river, westwardly along
the Columbia, that withdrawal remains to
this day obligatory and operative by force
of the statute and of that location.

"If authority be wanting to so manifest
a proposition, it is found in the following
language of the Supreme Court in the case
already referred to."

In McClure v. Northern P. R. Co. 9 Land Dec. 155, in an opinion by Secretary Noble, it was held that, "when the map of general route was filed, the withdrawal thereunder became at once effective, and reserved from general disposal the odd-numbered sections embraced therein."

In Northern P. R. Co. v. Collins, 14 Land Dec. 484, it was again decided by the same secretary that "lands withdrawn for the benefit of said grant are not subject to settlement."

In Central P. R. Co. v. Beck, 19 Land Dec. 100, which was also a settlement upon unsurveyed land within the place limits of the general route of the road, and in which a withdrawal had been ordered in accordance with the provisions of the act making the grant, Secretary Smith, sustaining the title of the railroad company, said (p. 103):

Similar declarations may be found in almost every volume of the Land Decisions. In the execution of this Northern Pacific land grant many withdrawals were made as "I am clearly of the opinion that, after called for from time to time along the line the withdrawal made upon the map of genof general route, and the Land Department eral route, no rights could be acquired adhas uniformly recognized the validity and verse to the company by settlement upon effect of such withdrawals. In Northern P. the land, and that a settlement so made, R. Co. v. Pressey, 2 Land Dec. 551, it ap-even though it existed at the date of the filpeared that Pressey settled upon a tracting of the map of definite location, would within 40 miles of the line of general route; not serve to except the land settled upon that the lands at the time of his settlement from the operation of the grant to said comwere unsurveyed; that after survey he pany." made application for a homestead entry, and it was held that he acquired no rights by 188 U. S. U. S., Book 47.

27

In the very last volume of the Land Decisions (vol. 30, p. 247), in respect to the

421

Southern Pacific Railroad Company, whose | ment was in the former case sustained in or-
granting act contained a similar provision der, as was said, to protect the settler. Here
in reference to withdrawal on the filing of the continuous practice of the department is
a map of general route, it was said by Sec- disregarded, and the patent issued by it to
retary Hitchcock (p. 249):
the railroad company is overthrown.

"As between individual claimants and the Still again, the company, by reason of § 6, company no claim could be predicated upon believing that a withdrawal was to be made settlement or entry made after the filing of which should operate to its benefit, filed a the map of general route, and as against map of general route, and a withdrawal was [147]such claims the grant in effect was opera- made of the odd-numbered sections of land. tive from April 3, 1871, the date upon It is now held that such withdrawal did not which the map of general route was filed." withdraw the odd-numbered sections from So that from the beginning until the pres-entry and sale, but they remained still open ent time in construing this grant and others to entry or purchase under the land laws. containing like provision there has been an If that be the true construction, it follows unbroken line of decisions in the Land De- that, whereas, if the company had filed no partment to the effect that a withdrawal map of general route, no one would know made on the filing of the map of general where its line of road was to be until after route prevents any private claims attaching it filed the map of definite location, and then to the odd-numbered sections of land; and the title would attach to all odd-numbered this whether the lands were surveyed or un-sections not burdened with existing claims. surveyed. Indeed, when Congress in the 6th But by filing the map of general route, as it section expressly declared that the lands did eleven years before filing the map of defi"shall not be liable to sale or entry or pre- nite location, it notified everybody of the emption before or after they are surveyed," proposed route, and so all settlers could take it would seem as though it had made every advantage of that knowledge and enter the provision which language was capable of ex- odd-numbered sections contiguous thereto. pressing to reserve from private entry for Having this knowledge of where the line was the benefit of the railroad company all odd-to be located, of course settlers would come numbered sections, surveyed or unsurveyed, within the place limits of the line of gen

[118]

eral route.

as near to that line as possible, in order to take advantage of the increased value coming from the construction of the road, and so I have already quoted from Hewitt v. taking advantage of the notice given would Schultz in reference to the duty of follow-deplete the grant of lands which Congress ing, in case of ambiguity, the construction had intended for the benefit of the company. given to a statute by the department But this question has been definitely decharged with the execution of such statute. That doctrine was there applied although it appeared that the practice of the department during the building of the railroad had been one way and only changed after its completion, and the latter construction was upheld by this court as the ruling of the department. It was said (p. 156, L. ed. p. 472, Sup. Ct. Rep. p. 315):

cided by this court. Buttz v. Northern P. R. Co. 119 U. S. 55, 30 L. ed. 330, 7 Sup. Ct. Rep. 100. That was an action brought by the railroad company for the possession of a tract of land within 40 miles of the general route as also of the line of definite location of plaintiff's road. The defendant entered upon the land in October, 1871, he at the time possessing all the qualifications of a "It was admitted at the hearing that the pre-emptor and intending to obtain title by [149] construction of the Northern Pacific act of pre-emption. At that time the tract was, 1864 announced by Secretary Vilas had been with others, in the occupation of the Sioux adhered to in the administration of the pub- Indians. An agreement for the surrender lic lands by the Land Department. We are by the Indians of all their rights was ratified now asked to overthrow that construction by on May 19, 1873. On May 26, 1873, the comholding that it was competent for the Land pany filed in the Land Department its map Department, immediately upon the definite of definite location. The defendant location of the line of the railroad, to with- therefore in occupation of the tract with indraw from the settlement laws all the odd- tent to pre-empt it for seven days after the numbered sections within the indemnity rights of the Indians had ceased and before limits as defined by the act of Congress. If the filing of the map of definite location. So this were done it is to be apprehended that if the opinion of the court now announced great, if not endless, confusion would ensue had prevailed the defendant was entitled to in the administration of the public lands, hold that tract as against the company. On and that the rights of a vast number of peo- the 11th of August, 1873, he presented his ple who have acquired homes under the pre-application for entry, which was refused, emption and homestead laws, in reliance upon the ruling of Secretary Vilas and his successors in office, would be destroyed."

was

and refused because it was within the 40mile limit, as shown by a map of general Now we have a case in which the ruling route filed on February 21, 1872. This preof the department has been unchanged from sents the precise question here involved. the commencement to the present time,-a The unanimous opinion of the court susruling which Secretary Vilas in 7 Land Dec. tained the action of the Land Department in supra, called "so manifest a proposition," refusing defendant's application to enter, and it is wholly disregarded. The recent and confirmed the title of the railroad comand temporary ruling of the Land Depart- 'pany. In the course of the opinion, by Mr.

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