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of Congress relating to each of said grants, and the number of miles of each of said railroads completed under and pursuant to the acts making each grant, as well as the number of miles of each remaining uncompleted at the date at which said acts required the completion of the same; and he is also requested to give the name of each of said railroad companies and States which are required by law to reimburse the government for moneys expended by it in the surveying, selecting, or conveying said lands comprised within each of their said grants, and what amount; and also what amount, if any, is now due from each of said companies and States by way of reimbursement for the cost of said surveying, selecting, and conveying said lands, stating the amount in full by debit and credit on said indebtedness.
The States and corporations to which grants have been made, for the benefit of roads which have not been constructed, in whole or in part, within the time required by the granting acts, and which I understand to fall within the terms of the inquiry, are specified in the accompany; ing tabular statement marked A. Said statement also shows the several acts making grants and increasing same, together with the acts granting an extension of time for the completion of several of the roads; the date when each road should have been completed; the date when (if at all) each road was completed; the length in miles of each road as definitely located or proposed; the number of miles completed within the period required by the granting act; the number of miles completed after such period; the number of miles uncompleted at the time when the road should have been completed, and the number of miles now uncompleted.
Said statement also shows the number of sections “in place” granted for each mile of road; and grants “to the amount of” a certain number of sections per mile; also the number of acres certified, approved, or patented to each State or corporation.
Unless otherwise indicated, the number of acres given in the column headed “approximate estimate of the number of acres so granted," is the result obtained by multiplying the number of acres granted per mile allowing 640 acres to each section) by the number of miles of located road.
No deductions whatever, unless expressed, are made for lands that may be situated in limits common to two or more roads. Neither does the statement show the cases where it would be impossible to find sufficient land within the limits of a grant to satisfy it, as such fact could not be clearly demonstrated except by adjusting such grant tract by tract, which it is not possible to do for reasons hereinafter stated. The resolution asks the amount of land embraced in each grant. Such amount cannot be stated specifically. At the beginning it was held that the grants to States to aid in the construction of roads were present grants, and it was believed by the department that the duty of “disposal” was properly in the States charged with executing the trusts. Accordingly, in all the earlier grants, immediately upon the location of the roads and determination of the limits of the grants, this office and the department certified, in whole, to the States, the lands to which companies would ultimately have been entitled, had the roads been completed as required; and, in some cases, even in excess of that amount. This certification was on the theory that the grants were of absolute quantity, restricted only by certain lateral limits; that is, that the States were entitled to "indemnity” for lands lost, for any reason, in the granted limits, to the extent of such loss, provided only that the quantity of the grants could be found, available, within the limits to which they were restricted.
The Supreme Court of the United States (October term, 1875), in the case of the Leavenworth, Lawrence and Galveston Railroad Company vs. The United States (2 Otto, 733), decided, in effect, that grants would
be entitled to indemnity only for lands in granted limits lost to them between the date of the granting acts and the definite location of the roads. Following this rule, it would, of course, be necessary in determining the actual quantity of any grant to examine tract by tract the lands in the granted limits, and ascertain what lands were lost prior to the date of the grant, and from that date up to the definite location of the road, thus ascertaining the amount to be made up from the indemnity limits to adjust the grant.
This rule was modified by your predecessor October 16, 1880, following the opinion of the Attorney-General, dated June 5, 1880, in the case of the Western Railroad of Minnesota, wherein it was held and decided that properly construed such grants would be entitled to indemnity for lands lost in the granted limits, either before or after the granting act and up to the definite location of the roads, excepting only reserved lands.
It was also held and decided that such grants were not of absolute quantity, like the Pacific railroad grants, but were grants in place, to the amount of whatever might be the actual area of the granted sections for so many sections in width, whether such sections were full or fractional and contained more or less land (see pages 158 to 163, inclusive, annual report of this office, for 1881). This modified rule would still require the detailed examination of grants above suggested, and it would not have been practicable to have accomplished the same up to the present time as to more than a few grants.
Some grants were under examination under the rule, when, in connection with the grant to Minnesota, for the Saint Paul, Minneapolis and Manitoba Railroad (formerly the Saint Paul and Pacific, Saint Vincent extension), the whole question as to what losses would entitle the State to indemnity was presented to and taken under consideration by you. I have not been informed of your decision in the matter, and am therefore not in a position to determine the exact number of acres granted were it practicable to do so in time for this report. For this reason and after consultation with you, I have, in the accompanying table, unless otherwise indicated, estimated the quantity granted as if the grant were full and the company entitled to that quantity.
As a matter of fact many of the grants could not receive so much for the reason that there is not available within the prescribed limits enough land to satisfy them.
Where grants are made “to the amount of” a certain number of sections per mile, such amount is stated in the column headed “Estimated quantity of land (in ares) embraced in the limits of the grant," and is produced, unless otherwise stated, by multiplying the number of acres granted per mile by the number of miles of road located.
The resolution asks the amount of land disposed of by each company and State. This office has no information whatever on the subject. The disposition of the lands by States and companies, after their certification or patenting by the United States, is not a matter of record in the department.
The grants to States and corporations which are included in the tabular statement herewith are more particularly described, and the status of each road, to aid in the construction of which the grants were made, more clearly shown in the following detailed statement :
GULF AND SHIP ISLAND. Under the act of August 11, 1856, a grant of six sections of land per mile was made to the State of Mississippi for a road from “ Bran
don to the Gulf of Mexico.” Provision was made in the act for sale by the State of the lands granted, the quantity sold to be proportionate to the miles of road constructed from time to time, except in the case of the sale of the first one hundred and twenty sections, which could be sold in advance of the construction of any portion of the road. It was also provided that if the road was not completed within ten years the lands unsold should revert to the United States.
On August 15, 1856, prior to location of the road, the lands falling within the probable limits of the road were withdrawn from sale or location by Notice 567. A map of definite location of the road was filed in this office November 27, 1860. No lands have been approved to the State for said road, neither has any portion of the road been constructed. The reservation of lands for the road ceased on August 11, 1866. The same act provides for a road from
TUSCALOOSA TO MOBILE RAILROAD, within the State of Mississippi, granting for said purpose the same quantity of land and in the same manner, upon the same limitations and restrictions in every respect, as in the case of the Gulf and Ship Island Road. The withdrawal from sale or location of lands falling within the probable limits of the road was made August 15, 1856, by Notice 567. No map of location has been filed, neither has any portion of the road been constructed. No lands have been approved to the State of Mississippi for said road. The reservation of lands for the road ceased on August 11, 1866.
A like grant was made by section 6 of the same act (August 11, 1856) to the States of Alabama, Mississippi, and Louisiana, to aid in constructing a road from
MOBILE TO NEW ORLEANS.
The withdrawal of lands for this road was made August 15, 1856, by Notice 567. No map of location has been filed. No portion of the road has been constructed. No lands have been approved to either of the States named for the benefit of said road. The reservation of lands for the road ceased August 11, 1866.
RAILROADS IN ALABAMA.
The act of June 3, 1856, granted to the State of Alabama, for the purpose of aiding in the construction of certain railroads named below, every alternate section of land designated by odd numbers for six sections in width on each side of each of said roads. The act provides indemnity for lands within the limits of the grant, sold or pre-empted prior to the definite location of each road. It also provides that the lands granted to the State “shall be subject to the disposal of the legislature thereof for the purposes aforesaid and no other.” Section 4 of the act provides
That the lands hereby granted to said State shall be disposed of by said State only in the manner following, that is to say: That a quantity of land, not exceeding one hundred and twenty sections for each of said roads, and included within a continuous length of twenty miles of each of said roads, may be sold; and when the governor of said State shall certify to the Secretary of the Interior that any twenty continuous miles of any of said roads is completed then another quantity of land hereby granted, not to exceed one hundred and twenty sections for each of said roads having twenty continuous miles completed as aforesaid, and included within a continuous length of twenty miles of each of said roads, may be sold; and so, from time to time, until said roads are completed; and if any of said roads is not completed within ten years, no further sale shall be made, and the lands unsold shall revert to the United States.
The lands falling within the probable limits of the several roads provided for in the act were withdrawn from sale or location by Notice 565, June 21, 1856. The following railroads were provided for in said act:
COOSA AND TENNESSEE.
This road was authorized by that portion of the act which provided for a railroad “ from the Tennessee River at or near Gunter's landing, to Gadsden, on the Coosa River.” A map of definite location, showing 364 miles, was filed in this office January 18, 1859. Under the provisions of said section, 67,784.96 acres of land were approved June 27, 1860, to the State of Alabama for the benefit of the said railroad. (See Railroad Land Company vs. Courtright, 21 Wall., 310, as to patent for 120 sections.) Whether said lands were transferred to the Company by the State is not known by this office. No portion of the road has been constructed. The lands withdrawn and not approved to the road have not been restored to market, as they are within the limits of the withdrawal for the Wills Valley (now Alabama and Chattanooga) Railroad, the grant for which is not fully adjusted.
COOSA AND CHATTOOGA.
This road was authorized by that portion of the act which provided for a railroad from “Gadsden to connect with the Georgia and Tennessee and Tennessee line of railroads, through Chattooga, Wills, and Lookout Valleys,” to be completed within ten years. The Coosa and Chattooga Railroad Company was organized under said act, and filed in this office, September 20, 1858, a map of definite location of a railroad from Gadsden, on the Coosa River, through the Chattooga Valley east of Lookout Mountain, to the Georgia State line, a distance of about 37} miles. No portion of the road has been constructed. The lands withdrawn have not been restored to market, as they lie within the limits of the Wills Valley (now Alabama and Chattanooga) Railroad, the grant for which is not fully adjusted.
(NOTE.—Both the Wills Valley Railroad Company and the Coosa and Chattooga Railroad Company were organized under the grant above named, the Wills Valley Company locating [and building) through the Wills and Lookout Valleys, and the Coosa and Chattooga Railroad Company through the Chattooga Valley. The grant was conferred on the Wills Valley Railroad Company by a joint resolution of the legislature of Alabama, approved January 30, 1858.)
ELYTON AND BFARD'S BLUFF.
This road was authorized by that portion of the act which provided for a railroad " from Elyton to the Tennessee River, at or near Beard's Bluff
, Alabama.” No map of location has been filed, neither has any portion of the road been constructed. The reservation of lands for the benefit of this road ceased June 3, 1866, the date of the expiration of the grant. It is not known to this office that any corporation or company organized under the act ever existed.
MEMPHIS AND CHARLESTON.
This road was authorized by that portion of the act which provided for the Memphis and Charleston Railroad, extending from Memphis, on the Mississippi River, in Tennessee, to Stevenson, on the Nashville
and Chattanooga Railroad, in Alabama.” The State of Alabama refused to accept the grant for said road, and the lands withdrawn were restored to market, by Notice 595, February 19, 1858.
MOBILE AND GIRARD.
This road was authorized by that portion of the act providing for a road from “Girard to Mobile, Ala.” A map of definite location of the road from Girard to Blakely, Alabama, on Mobile Bay, a distance of 223.6 miles, was filed in this office on the 1st of June, 1858. Under the construction of the act as held by this department until October, 1875, and hereinbefore referred to, there were nine lists of land, aggregating 504,145.86 acres, approved to the State of Alabama for the benefit of said road, between April 26, 1860, and January 3, 1861, inclusive. There is no evidence on file in this office, or in the Department, of the con. struction of any portion of said road, yet it is known unofficially that a railroad has been constructed and is in operation from Girard to Troy, a distance of 84 miles, on the line (or very nearly so) of definite location. It was held by this office, January 15, 1874, by Commissioner Drummond, that if any portion of the road had been constructed in time, it would, upon a proper showing to that effect, be entitled to an amount proportionate to the number of miles so constructed. Under this theory the road would, upon proper evidence of the construction of 84 miles of road, be entitled to 322,560 acres of land, but there had been (as before stated) 504,145.86 acres, or an excess of 181,585.86 acres, approved to the State for this road in 1860-'61.
Commissioner Drummond recommended the restoration to entry, by formal revocation on the part of Congress, of the portions of the grant not earned. No restoration of such lands, however, has yet been made by Congress, nor has any restoration been attempted, or declaration of forfeiture made in the case of any similar grant, hy this office or the department, because of the decision by the Supreme Court of the United States, October, 1874, in the case of Schulenberg vs. Harriman (21 Wallace, 44), where the conclusion was reached that acts of Congress containing provisions and restrictions such as are found in the act of June 3, 1856, import a present grant to the extent of passing over to the State the legal title to the odd sections designated; that a provision
That all lands remaining unsold after ten years shall revert to the United States if the road be not then completed, is no more than a provision that the grant shall be void if a condition subsequent be not performed;
[that] it is settled law that no one can take advantage of the non-performance of a condition subsequent annexed to an estate in fee but the grantor or his heirs, or the successors of the grantor if the grant proceed from an artificial person; and if they do not see fit to assert their right to enforce a forfeiture on that ground, the title remains unimpaired in the grantee.
In what manner the reserved right of the grantor for breach of the condition must be asserted so as to restore the estate, depends upon the character of the grant. If it be a private grant, that right must be asserted by entry or its equivalent. If the grant be a public one, it must be asserted by judicial proceedings authorized by law,
or there must be some legislative assertion of ownership of the property for breach of the condition, such as an act directing the possession and appropriation of the property, or that it be offered for sale or settlement.
Upon the question of sales by the State after failure to complete the road within the statutory period, the court says:
The provision in the act of Congress of 1856, that all lands remaining unsold after ten years shall revert to the United States if the road be not then completed is no more than a provision that the grant shall be void if a condition subsequent be not perforined.
The prohibition against further sales if the road be not completed within the period prescribed, adds nothing to the force of the provision. A