Statement of the Case.

in the bonds of the United States, or other safe and more productive securities, for the purchase from time to time, and the redemption at maturity, of the first mortgage construction bonds of the company, on the road, depots, stations, side tracks and wood yards, not exceeding thirty thousand dollars per mile of road, payable in gold coin not longer than thirty years from date, with interest payable semi-annually in coin not exceeding the [rate] of seven per centum per annum; and no part of the principal or interest of the said fund shall be applied to any other use until all the said bonds shall have been purchased or redeemed and cancelled; and each of the said first mortgage bonds shall bear the certificate of the trustees, setting forth the manner in which the same is secured and its payment provided for. And the District Court of the United States, concurrently with the state courts, shall have original jurisdiction, subject to appeal and writ of error, to enforce the provisions of this section.

"SEC. 6. And be it further enacted, That the said company shall file with the Secretary of the Interior its assent to this act within one year from the time of its passage; and the foregoing grant is upon condition that said company shall complete a section of twenty or more miles of said railroad and telegraph within two years, and the entire railroad and telegraph within six years, from the same date."

Within one year from the passage of this act, the Oregon Central Railroad Company filed with the Secretary of the Interior its assent to the act, and prior to July 31, 1871, and February 2, 1872, filed in that department maps of survey and definite location of its line of railroad, being a location from Portland to the Yamhill River near McMinnville via a point near Forest Grove, and from that point to Castor Creek, a point twenty miles toward Astoria; and from Castor Creek to Astoria; the distances being about twenty-six miles from Portland to Forest Grove; about twenty-two and three fourths miles from there to the Yamhill River; and about one hundred and two and a half miles from Forest Grove to Astoria. The lands adjacent to and coterminous with the entire line of definite location were segregated and withdrawn from the pub

VOL. CLXIV-34

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Statement of the Case.

lic lands. Twenty miles of road from Portland, running due west and terminating at a point near the town of Hillsboro, in Washington County, Oregon, were constructed, and about six miles more to a point near Forest Grove; and from that point something over twenty-one miles running almost directly south to a point near McMinnville in Yamhill County. The line was constructed on a curve as it approached Forest Grove.

The Secretary of the Interior on February 16, 1872, accepted the first twenty miles as completed under the act, and on June 23, 1876, he accepted another twenty-seven and one half miles as so completed, being the distance from Hillsboro to a point near Forest Grove, and from that point to McMinnville.

On October 6, 1880, the Oregon Central Railroad Company, for value, sold and conveyed to the Oregon and California Railroad Company all the title and interest which it had acquired in and to the lands granted under the act, and all its road, franchises and privileges; but it was not admitted by the United States that the Oregon Central Railroad Company had a legal right to make said sale and conveyance. On that day the Oregon Central Railroad Company was insolvent and went into liquidation, and the conveyance was made to settle its business and dispose of its property. Neither of these railroad companies nor any one else has ever constructed or equipped any portion or part of any railroad from the point near Forest Grove to Astoria.

January 31, 1885, Congress passed an act, 23 Stat. 296, c. 46, the first section of which is as follows:

"That so much of the lands granted by an act of Congress entitled 'An act granting land to aid in the construction of a railroad and telegraph line from Portland to Astoria and McMinnville, in the State of Oregon,' approved May fourth, eighteen hundred and seventy, as are adjacent to and coterminous with the uncompleted portions of said road, and not embraced within the limits of said grant for the completed portions of said road, be, and the same are hereby, declared to be forfeited to the United States and restored to the public domain, and made subject to disposal under the general land laws of the United States as though said grant had never been made."

Statement of the Case.

July 8, 1885, the Commissioner of the General Land Office issued to the local land office at Oregon City instructions for its guidance under the act of January 31, 1885, and a diagram showing the limits of the forfeited lands and that portion of the grant which was not affected by the act. 4 Land Dec. 15. These instructions were approved by the Acting Secretary of the Interior. The diagram showed that the road ran from Portland west to a point near Forest Grove where it turned almost at a right angle and ran south to McMinnville. From that point two lines were drawn, one due north and the other due west, both terminating at the twenty mile limits. The granted lands lying within the quadrant formed by these lines and the twenty mile limits, and also the indemnity lands within said lines and the twenty-five mile limits, were designated on the diagram as "forfeited." The forfeited lands on the line from Forest Grove to Astoria were also shown.

In November, 1885, the Oregon and California Railroad Company, assignee of the Oregon Central Railroad Company, presented to the land office a list of lands embraced within the territory claimed in this suit to be forfeited to the United States, and tendered the fees for locating the same, which were declined and the list rejected upon the ground that the lands had been forfeited.

About the same time there was filed in the land department a petition of the receiver of the Oregon and California Railroad Company, praying that the instructions in so far as they applied to the granted lands in said quadrant be revoked. This petition was referred to the Commissioner for examination and report, and a report was subsequently submitted recommending "that the restoration remain in force as per instructions of July 8, 1885," and transmitting a second diagram, "showing the accurate limits of the grant." On April 5, 1887, the Secretary of the Interior passed upon the matter of the application of the receiver and held that the road from Portland to Forest Grove, and from the latter point to McMinnville, was to be treated as two distinct roads, the limits. of which should be adjusted separately. 5 Land Dec. 549. By that adjustment the quadrant northwest from Forest Grove.

Statement of the Case.

fell within the lands forfeited, which was in accordance with the restoration of July 8, 1885.

Some of the lands claimed to have been forfeited to the United States have been patented and are in the actual occupation of the patentees or persons claiming under them, and other portions of said lands for which patents have been issued are unoccupied and are wild lands, as is true of some of the lands claimed by the United States, which have not been sold or patented, and are not in the actual physical possession of any person or party.

The following is a sufficient reproduction of the diagram:

Argument for Appellees.

The Circuit Court, Bellinger, J., held that the lands within the quadrant were included within the lands forfeited to the government, and decreed accordingly. 57 Fed. Rep. 426. The Circuit Court of Appeals for the Ninth Circuit reversed this decree and directed a decree in favor of the Oregon and California Railroad Company. 29 U. S. App. 497. Thereupon the present appeal was prosecuted.

Mr. Assistant Attorney General Dickinson and Mr. George II. Williams for appellants.

Mr. J. Hubley Ashton and Mr. Joseph II. Choate (with whom were Mr. Charles II. Tweed and Mr. William F. Herrin on the brief), for appellees.

I. The act of May 4, 1870, made a grant in præsenti to the Oregon Central Railroad Company, "and to their successors and assigns," of alternate sections of the public lands to the amount of ten sections per mile "on each side," of the road, providing for indemnity within an additional five miles, or within twenty-five miles "from the track of said road," with the right on the part of the company to locate its road in sections of twenty or more miles, and to construct its road in like sections, and thereupon receive patents for so much of the granted lands as should be "adjacent to and coterminous with the said completed sections." Schulenberg v. Harriman, 21 Wall. 44; Wisconsin Central Railroad v. Price County, 133 U. S. 496; Deseret Sult Co. v. Tarpey, 142 U. S. 241; Bybee v. Oregon & California Railroad, 139 U. S. 663; Lake Superior &c. Co. v. Cunningham, 155 U. S. 354.

II. The Secretary of the Interior, in executing the act of May 4, 1870, construed the act as a grant providing for the construction of one railroad from Portland to Astoria and McMinnville, and providing for the continuity of the line and the corresponding continuity of the grant from Portland to McMinnville, and not as a grant for two different and distinct railroads, one from Portland to Astoria, and the other from a junction point near Forest Grove to McMinnville.