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On August 15, 1856, prior to location of the road, the lands falling within the probable limits of the road were withdrawn from sale or location by Notice 567.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 legis lature 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 36 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 371⁄2 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 CHARL STON.

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 herein before 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 1860–261.

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, by 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—

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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.

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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 performed. The prohibition against further sales if the road be not completed within the period prescribed, adds nothing to the force of the provision. A

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cessation of sales in that event is implied in the condition that the lands shall then revert; if the condition be not enforced, the power to sell continues as before its breach, limited only by the objects of the grant and the manner of sale prescribed in the act.

It was also held in said decision that where no action had been taken by legislative or judicial proceedings to enforce a forfeiture of the estate granted by the act of 1856, the title remains

In the State as completely as it existed on the day when the title by location of the route of the railroad acquired precision and became attached to the adjoining alternate sections.

SELMA, ROME AND DALTON, FORMERLY ALABAMA AND TENNESSEE.

This road was authorized by that portion of the act which provided for the "Coosa and Alabama Railroad, from Selma to Gadsden." A map of definite location of the line of route from Selma, via Calera, Rome, Talladega, and Jacksonville, to Gadsden, a distance of 167.35 miles, was filed in this office March 27, 1858. The line of route, although indirect and tortuous, was approved by the Secretary of the Interior May 15, 1858.

On the 8th of June, 1859, a certificate of the governor of Alabama, dated June 4, 1859, was filed in this office, showing the construction of 100 miles of the road from Selma north. No further evidence of construction was received in this office until February 13, 1869, when a certificate was filed in this office by the governor of Alabama, dated January 13, 1869, showing the construction of a railroad from Selma by way of Montrevalle, Columbia, Talladega, and Jacksonville, and thence to the Georgia State line, a distance of 171.754 miles.

The road as constructed did not follow the line of location beyond Jacksonville, neither was it ever completed to Gadsden, the line built running northeast from Jacksonville to the Georgia State line, instead of running from Jacksonville northwest to Gadsden, leaving 23.42 miles (from Jacksonville to Gadsden) of the located line unconstructed. It will be observed that only 100 miles of the road were constructed within the period required by law, 143.93 miles were constructed upon the located line (43.93 miles being constructed after the time required by law), and had so much of the road been constructed within the proper period, it would have been entitled to 552,691 acres, provided there was that quantity of vacant lands within the limits of its grant.

On May 24, 1859, and May 7, 1860, there were selecions of land aggregating 440,700.16 acres, approved to the State of Alabama for the benefit of this road, and a portion of the lands so approved lie opposite the 23.42 miles of unconstructed road.

The act of May 23, 1872, confirmed to the State of Alabama for the sole use and benefit of the Selma, Rome and Dalton Railroad Company, the successors of the Alabama and Tennessee Railroad Company, all the lands previously certified to the said State for the benefit of the lastnamed company. Since the passage of said act, but 16,515.21 acres have been approved (May 19, 1875) to the State for the benefit of said road (Selma, Rome, and Dalton). The grant has not been adjusted, and the vacant odd sections, within the limits of the grant are still withdrawn for the benefit of the road.

SAVANNAH AND ALBANY.

The seventh section of the act of March 3, 1857, granted to the State of Alabama for the purpose of aiding in the construction of a railroad From the line of Georgia on the Chattahoochee River, to the City of Mobile, Alabama, alternate sections of the public lands to the same extent and in the same manner, and upon the same limitations and restrictions in every respect, as was granted to aid in the construction of other railroads.

Under the act of June 3, 1856, above referred to, granting lands to the State of Alabama, April 21, 1857, the lands falling within the proba ble limits of the road were withdrawn from sale or location. No map of location was filed, and no portion of the road was ever constructed. The reservation of lands for said road ceased March 3, 1867.

RAILROADS IN FLORIDA.

The act of May 17, 1856, granted to the State of Florida, to aid in the construction of certain railroads in said State, every alternate section of land designated by odd numbers, for six sections in width on each side of such roads. The provisions in said act for indemnity, for disposition of the lands by the legislature of said State, for the sale of such lands, and for the reversion of the unsold lands to the United States, in the event of failure to complete the roads within ten years, are identical with those contained in the act of June 3, 1856, above quoted, granting lands to the State of Alabama. The following described railroads are provided for by the act (May 17, 1856):

ATLANTIC, GULF, AND WEST INDIA TRANSIT, FORMERLY FLORIDA RAILROAD.

This road was authorized by that portion of the act which provides for a road "from Amelia Island, on the Atlantic, to the waters of Tampa Bay, with a branch to Cedar Key on the Gulf of Mexico." The lands falling within the probable limits of the road (main line and branch) were withdrawn from sale and location, by telegram, on the 17th May, 1856, and by Notice 568, September 9, 1856. On the 22d September, 1857, a map of definite location of that portion of the road from Fernandina to Cedar Keys, 155 miles in length, was filed in this office. Eighty-four miles of the road so located was on the main line, and 71 miles (from Waldo to Cedar Key) was the branch line complete. The whole of said 155 miles was completed in 1860, entitling the State to, say, 595,200 acres for the benefit of the road. Up to the present time but 290,183.28 acres have been approved to the State under this grant. Said lands were approved prior to January 7, 1860.

The reservation of lands on that part of the main line from Waldo to Tampa Bay, 150 miles in length, was not respected by this office after May 17, 1866, entries being permitted of all lands (unless otherwise reserved) outside and south of the 15-mile indemnity limits of the constructed portion of the road. Under date of December 7, 1875, the president of the company, Mr. Yulee, transmitted a map showing the proposed route of the main line from Waldo to Tampa, and asked that the lands along the said line and within the limits prescribed by the act of May 17, 1856, be withdrawn for the benefit of the road. The map and accompanying papers were submitted to Secretary Chandler, who declined to receive or approve the map, and directed, by letter of April 27, 1876, that it be returned to Mr. Yulee. Secretary Chandler says in said letter that he does not question the principle established in the case of Schulenberg vs. Harriman; that the title which vested in the State by the grant and definite location of the road thereunder could not be divested by the mere failure to complete the road so located within the time fixed by the act, but that he finds nothing in that case to sustain the doctrine that the State retains the right for an indefinite period and long after the date fixed for the completion of the road to designate its route and thus give effect to the grant. He also held that failure to locate the road before the time fixed for the completion of the road should be regarded as evidence of abandonment of the grant.