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two other witnesses, who swear that they UNITED STATES ex rel. HUBBELL VS. the charges against Ilgen because of such examined the premises on the 1st of Oc


repudiation. Neither Flanagan nor Hubtober, 1878, the date of Maxwell's alleged

bell are entitled to consideration--Flanasettlement, and saw no evidence of the Good FaithAgreement.-Hubbell assailed the digging or spading by Morgan.

good faith of Ilgen, alleging that on the day gan because unscrupulously he induced of his settlement, he delivered to Flanagan a

an ignorant man to violate the law that he It is difficult to define with any degree paper acknowledging that he held eighty might acquire thereby a tract of the public of exactitude what particular act on the acres of the land embraced in his filing in land, and Hubbell-lending himself to part of a settler constitutes a settlement

trust for Flanagan, and agreeing to make the Flanagan's purposes-because of his atunder the law. It is always desirable and

conveyances necessary to perfect title thereto expedient, of course, that the act should

in Flanagan whenever by him requested. Its tempt to effect cancellation of Ilgen's entry,

execution is admitted by Ilgen, but as an and thus acquire a perfected right to enter be notorious and significant of a purpose; agreement intended to violate the law, it the tract under the act of May 14, 1880, but it would neither be safe nor right to could not be specifically enforced, and Flan- and be enabled, thereafter, to hold the reject claims in all cases because of a lack agan had no legal right under it. It raises same in whole or in part for the benefit of of either or both these ingredients. The

only the question of Ilgen's good faith.

Flanagan. case in hand is an example. The act in SECRETARY TELLER to Commissioner McFar

The fact that eight acres of the land itself was simple. The mere turning over

land, March 16, 1883.

embraced in Ilgen's filing may have been of a few spadefuls of earth, which had not I have considered the case of the United embraced in Flanagan's location or in the long before been turned over, would not States ex rel. J. B. Hubbell vs. Mathew agreement, does not militate against Ilbe calculated to attract the attention of Ilgen, involving the validity of the latter's gen's good faith. So slight a variation the casual passer-by, and might escape cash entries Nos. 11 and 13, embracing re- between the lines of a surveyed tract and the notice of parties on the alert for evi- spectively lots 11, 12 and 13, and lot 10 of an unsurveyed location is not singular, dences of settlement. Still, if the act can Sec. 28. Tp. 8, R. 47 E., Miles City, Mon- and under the maxim“ Lex non curat de be established and supplemented by a tana, on appeal by Hubbell from your de- minimis," and in the absence of bad faith, showing of good faith, it must stand as an cision of October 6, 1882, sustaining the the difference should not prejudice his act of settlement. entries.

entry. It is very difficult in such cases as this It appears that in February, 1878, one Your decision is affirmed. to disprove the act of settlement by Flanagan; then a deputy United States negative testimony. If the act had been Marshall, filed a “ ranch declaration," or PLUMMER et al. vs. JACKMAN. notorious in its character, and the evidence notice of claim to a described tract of un- Speculation.--A pre-emptor is not forbidden to of it set forth affirmatively, it would be surveyed land then within the Fort Keogh settle on lands that are likely to become cenproper and competent to show its non-per- reservation. The tracts were not restored tres of population-or near a town or village formance by negative testimony. to market until March 11th following.

-to what speculation the statute refers. For instance: In the case of Hull v. His claim was, therefore, of no legal force. Question f Fact. -In view of the testimony,

and the burden of proof, the land in dispute Hawkins, Copp's L.O., March, 1880, p. 191, Not wishing personally to occupy the is awarded to Jackman. it was shown affirmatively that the act of tract he induced Ilgen to go thereon. SECRETARY TELLER to Commissioner Me Farsettlement consisted in placing a small The township plat was filed February land, May 7, 1883. wagon-load of stones on the land, and 25, 1879.

I have considered the case of John W. that said stones could be seen from a On April 29, 1879, Ilgen filed his pre- Plummer et al. vs. John J. Jackman, inconsiderable distance; but several disinter-emption declaratary statement alleging volving the S. W. of Sec. 32, Tp. 139, ested parties, who made a critical examina- setilement April 8, 1878, and on January R. 80 W., Bismarck, Dakota Territory. tion of the premises on the next day after 12, 1881, made his cash entries jointly- Jackman filed declaratory statement the alleged act of settlement, failed to dis- after a hearing—with one Harcum for lot No. 179, for said quarter section, July 19, cover any evidences of it, and this 10, and singly for lots 11, 12 and 13. 1873, alleging settlement May 28, 1872. office held that the affirmative evidence Subsequently Hubbell assailed the good Plummer filed declaratory statement No. was full of doubt, with all the possibili- faith of Ilgen, alleging that on the day of 160, for the north half of said quarter ties in favor of the negative.

his settlement in violation of Section 2262 section (with other land), June 24, 1873, But in this case a simple act is alleged of the Revised Statutes he delivered to alleging settlement March 28, 1873. which does not carry with it the evidence Flanagan a paper acknowledging that he In May, 1875, the case of the city of of its performance, and is almost wholly held eighty acres of the lands embraced in Bismarck vs. Hackett et al., involving the a matter of affirmation and denial. There his filing in trust for Flanagan, and agree land in question, was tried at the local fore, before this office could reject the ing to make the conveyances necessary to office, and testimony submitted touching affirmative evidence of the act, it would perfect title thereto in Flanagan whenever the respective claims of Jackman and be necessary to show by some means the by him requested. Its execution is, ad- Plummer. In that case a decision (Noatter impossibility or strong improbabil, mitted by Ilgen, but, as an agreement vember 13, 1875), was rendered by your ity of its performance; and as this has intended to violate the law, it could not be office, by which the N. į of said Š. w. not been done, I must hold that the oath specifically enforced (Warren Van was awarded to Plummer, and the S. ] to of the settler has not been successfully Brunt, 19 Wall., 646), and Flanagan had the City of Bismarck; and Jackman's impeached, and must stand.

no legal right under it. It raises only filing was held for cancellation. I think it is satisfactorily shown that the question of Ilgen's good faith.

On appeal, Secretary Chandler, by deMorgan purchased the improvements on His pre-emption proof and his entry in cision of July 26, 1876, awarded the whole the land before he settled, and as his all other respects are satisfactory: quarter section to Jackman, and directed settlement antedates that of Maxwell, and I concur with you in the opinion that, all other filings and entries thereon to be as all his subsequent acts have been char- under the testimony the land settled and canceled. Plummer's entry was accordacterized by good faith and compliance filed upon by llgen was not in fact—with ingly canceled, August 4, 1876, and subsewith law, he is entitled to the land. exception of about eight acres—that named quently certain additional homestead en

I therefore award the land to Morgan, in Flanagan's location, nor that referred to tries thereon were also canceled. and hold the D. S. of Maxwell for cancella- in the agreement, and that also, soon after A motion having been made for a retion. (No appeal was taken from this de- his failing, upon ascertaining the impropri- hearing. it was denied May 11, 1877, but cision.

ety of such agreement, Ilgen repudiated it Secretary Schurz by his letter of July and denied Flanagan's claim to any portion 3, 1877, directed the local officers, when

of the land by virtue of the agreement or Jackman should“ apply to make final TWENTY-FOUR pages in this issue of the otherwise. It also satisfactorily appears proof and payment for said land to allow LAND-OWNER.

that Flanagan instigated Hubbell to make any testimony which may be offered which


may have a tendency to impeach his good valuable improvements placed by Jack- point where the railroad would cross, occufaith in his settlement and cultivation of man on the south half” of the tract. pies a large space in the record; and I think said tract," and to cause notice of the Since the issue presented is mainly of unnecessary weight was given to it. The hearing to be given to parties claiming an fact, I shall review to some extent the evidence as to an agreement that the interest therein.

testimony taken upon the issue, and con- claims so to be taken up by each of the Some subsequent proceedings were had, sider its bearing on the question of Jack- parties should in fact be the common in consequence of a cash entry made by man's good faith.

property of all, is indefinite, uncertain, Jackman ; but the hearing under the or The law upon which this issue was contradictory, and, I think, does not preder of July 3, 1877, was held at Bismarck, framed, for the purpose of inquiring ponderate in favor of such an agreement. in September, 1877, and due notice thereof whether it had been violated, is presumed Whatever might be the difference of given to the parties in interest, and the to be that part of Section 2262 of the Re- opinion upon that question, it is, I think, proceedings and testimony were returned vised Statutes, which declares that the certain that such agreement was never in to your office.

person claiming the benefit of the pre- fact acted upon so far as the lands were August 27, 1879, Acting Commissioner emption laws shall, before being allowed concerned, nor was it insisted upon by Armstrong reported the case to this De- to enter lands, make oath (among other any member of the party in reference to partment, accompanied by his opinion. things)" that he has not settled upon and the land which each undertook to acquire; He states that “the evidence is so conflicto improved such land to sell the same on and the project, if it ever existed, may ing that it is impossible to ascertain the speculation, but in good faith to appro- justly be regarded as having been wholly exact truth,” but concludes that Jack-priate it to his own exclusive use; and abandoned at the time each party came to man's claim " was not originally made in that he has not, directly or indirectly, take the necessary legal steps to acquire good faith,” but was made for "specula- made any agreement or contract, in any title to the land constituting his claim. tive purposes.” He further found that way or manner, with any person whatever, As proof of this I refer briefly to a Plummer had abandoned the land, and by which the title which he might acquire few points in the testimony. recommended that the entries of both from the United States, should inure in Jackman did not go to the river at the Plummer and Jackman should be canceled. whole or in part to the benefit of any per- same time with the others, but followed After the decision of July 26, 1876, son except himself.”

same weeks afterward. One Corey, who Plummer made application for repayment The charge that Jackman made claim to went with the party, claimed to have been of purchase money, which he subsequently the land in bad faith, and for the purpose hired by Jackman to represent him, and withdrew; but in 1877 he renewed it. of speculation, rests mainly in certain to take up and hold a claim for him. He This application at the time of the decision agreements, the first of which is alleged swears that Jackman told him that Rich. of Jan. 16, 1882, hereafter mentioned, was to have been made between Jackman, ards, one of the parties, would locate him still pending

Wouds, Richards, Churchill and Sanburn, on a claim which he was to hold for JackMy predecessor examined the case at Moorhead, Minnesota, in March, 1872, man. Corey took up a claim and built and rendered a decision therein Jan. 16, to the effect that such parties should go upon it. When Jackman came he did not 1882, in effect affirming the decision of to a point on the Missouri River, where it take the Corey land, and never made any Acting Commissioner Armstrong as to was supposed the Northern Pacific Rail- claim to it, but took the claim now in the want of good faith on the part of Jack- road would cross the river, and there controversy. Corey, who was called by man, and holding his entry for cancella- locate claims, with the view that a town contestants, testifies that Jackman made tion, but directing Plummer's entry as to would be built at such crossing, and claim to no other land than that still the north half of said tract to be rein- thereby the lands would be greatly en- claimed by him. McKellar and Chase, stated and patented, and his application banced in value—such claims to be held who went and took up claims, representfor repayment to be rejected.

as the common property of the parties to ing Sanburn and Churchill, two of the orApril 7, 1882, an application was made the agreement. The alleged agreement iginal parties, abandoned their claims early to my predecessor for a reconsideration was not in writing, and the testimony as in 1872. Woods, who first settled upon of his said decision. Such application to whether it was ever made is painfully the land in controversy, abandoned bis (having been found to be still pending) conflicting.

claim, and left the country in July, 1872, was granted by me; and April 11, 1883, The burden of proof is upon the party and Richards' claim proved to be upon an an oral argument upon the merits was had alleging the agreement, and it should be odd section. before me by counsel forothe respective par- made out by a fair preponderance of evi It was claimed that the lands were taken ties. dence.

up at that particular point on account of Upon this statement of the proceedings The testimony shows that an arrange- superior knowledge possessed by Jackin the case it will be seen that the only is- ment was made between such persons, or man, that the railroad crossing would be sue presented and now to be determined is such persons and two or three others, to at such point, and a town would be built that which was made by the letter of Sec- go together to make a settlement at a there. retary Schurz of July 3, 1877, before quo- point upon the river, at or near which they The evidence shows that the location at ted viz., whether Jackman made his "set- believed the road would cross and a town that time was uncertain, and that, in fact, tlement and cultivation ” of the tract "in be built, and they united, to some extent in the summer and fall of 1872 the road good faith.”

at least, in making up an outfit for the was located, and partially graded, some My predecessor, Secretary Kirkwood, long journey through, and settlement in, three miles further south, but subsequently in his decision states that he does “not an unoccupied country. Such union, was changed to its present location. Jackman deem it necessary to recite or sum up the however, a matter of necessity, since some when upon the stand as a witness in this very voluminous testimony touching the of the party were destitute of money to controversy, as late as November, 1877, validity of Jackman's claim,” but states purchase supplies, but possessed teams or testifies that he does not believe that any his conclusion from an examination of the other property essential to the success of one then knew where the road "was going testimony, viz.: " That Jackman's settle the journey and settlement, and others to cross the Missouri River." Yet it is ment was made in bad faith ; in other had the necessary means for other pur- the uncontradicted testimony in the case words, he settled upon and improved the poses. It is needless to say that such a that at that time he had lived upon the land in contest, so far as he settled or im- union for mutual protection and support land in controversy some five years, havproved it at all, for the purpose of specula- is of common occurrence, and of itself af- ing no other home, and had made valuable tion, and not in good faith, to appropriate fords but slight evidence of an agreement and extensive improvements. the same to his own exclusive use.” The to hold in common the lands to be taken up. Jackman testifies fully and explicitly decision states that such conclusion “is The testimony upon this part of the that he took up the land for his own exreached very reluctantly on account of the case, and upon the subject of locating at a 'clusive use, with the intention of making

it a permanent home, and that he has no 1873, Ed. Hackett and John W. Proctor After the said decision of January 16, other; and he denies the agreement to were pre-emptors on the northwest and 1882, to wit, on the 20th day of April, hold the lands in common. In this denial northeast quarters of section 4, Tp. 1882, a patent was issued to Plummer for he is strongly corroborated by the fact that | 138 N., R. 80 W.—the whole of both the north half of said quarter section. the various claims which would have consti- of these claims being covered by the I therefore direct that the order of tuted the common property were regarded original town-site of Bismarck; that January 16, 1882, directing that Jackman's and treated by the parties themselves as in these claims were in contest, and Hackett entry be canceled, be revoked ; that a dedividual property, and no joint ownership and Proctor applied to Jackman to assist mand be made of Plummer; that he surwas ever claimed. If all the testimony them in defending them, that Jackman render for cancellation the patent so issued relating to the agreement were uncontra- agreed to advance money and assist them to him, in order that a patent may be dicted, it is of so indefinite and uncertain in such defense, and as soon as their claims issued to Jackman for the whole of said a character (if the case presented no other were proved up and they were in condi- southwest quarter. In case of refusal of legal obstacle), that I do not think it tion to do so, they were to pay to him said Plummer to surrender such patent, would be sufficient to authorize a court of double the money he should expend in you will report such refusal to this deequity to partition the Jackman claim and their behalf; that thereupon he made an partment, in order that such further action other lands, if they had been acquired, arrangement with James J. Hill, of St. may be taken as may be deemed to be among the parties to the alleged agreement. Paul, by which Jackman was to give to proper.

The fact that Jackman has lived upon Hill one-half of the money that he should the land as a home for so long a period is receive from Hackett, and one-third of

TIMBER LANDS. strongly corroborative of his own testi- what he should receive from Proctor, in mony that he settled upon the land for the consideration that Hill should furnish

SPITHILL vs. GOWEN. purpose of making a home, and not “for one-half of the money he should expend in Act of June 3, 1878-Definition of Timber Lands. the purpose of speculation."

defense of such claims. It appears that -This act contemplates only such timber The statute referred to cannot be con-one Robbins subsequently became inter

lands as are embraced in broken, rugged or strued to mean, that persons going to the ested with Hill in the

mountainous regions, where the soil, when arrangement.

timber is cleared off, is unfit for cultivation. frontiers, or along the lines of projected Hill's version of the matter substan

Heavily timbered lands, where the soil is susrailways, and anticipating centres of popu- tially agrees with that of Jackman as to ceptible of cultivation, are not embraced lation, shall not enjoy the benefits of their the arrangement to advance money; but

under the act of June 3, 1878. enterprise and foresight, though they be- he testifies that Jackman said he “was to SECRETARY TELLER to Commissioner McFurlieved that their claims would become of have half of 160 acres, and was to give

land, May 8, 1883. great value on account of the proximity him (Hill) half of his half; and that at I have considered the case of Alexander to villages or cities; or that villages or a subsequent time, Jackman, in order to Spithill vs. John D. Gowen, involving the cities' would even be built upon such make him and Robbins more secure for S. W. of Sec. 29, Tp. 31, R. 4 E., Olymclaims and thereby enable them ultimately further advances, stated that "there was pia, Washington Territory, on appeal by to realize large prices for such lands. very little contest on his own claim,” Gowen from your decision of March 25, That is not the " speculation" that the (being the land now in question), and that 1882, holding his filing for cancellation statute intended to prohibit.

“ he would put it also into the transaction and allowing the entry of Spithill. In Myers vs. Croft,(13 Wall., 291) Mr. and give us half of whatever he got for Gowen filed declaratory statement JanJustice Davis, in commenting upon the himself or from either of the others." uary 13, 1880, alleging settlement Decemcauses which led Congress to pass the It will be borne in mind that this trans- ber 24, 1879, and Spithill applied February statute above cited, says: “ It had been action was some time after Jackman had 19, 1881, to enter the tract under the act the well defined policy of Congress, in tiled his declaratory statement and made of June 3, 1878, (20 stat., 89.) passing these laws, (pre-emption) not to settlement upon the land now in dispute. This act provides (section 1) for the allow their benefit to inure to the profit of It is not proved to my satisfaction that 'sale of lands" valuable chiefly for timber, land speculators; but this wise policy was Jackman's own claim entered at all into but unfit for cultivation,” at the minimum often defeated. Experience had proved the agreement; but conceding the trans- price of $2.50 per acre.

* * that designing persons, being unable to action to have been as related by Hill, I vided, That nothing herein contained shall purchase valuable lands, on account of do not think it can be construed into an defeat or impair any bona fide claim under their withdrawal from sale, would procure agreement by Jackman to convey the any law of the United States, or authorize middle-men to occupy them temporarily, title of his own clain which he might re- the sale ” of

"the improvewith indifferent improvements, under an ceive from the government, or any part of ments of any bona fide settler." Section agreement to convey them, so soon as they it, to Hill. The agreement was not in 2 requires an affidavit from the applicant were entered by virtue of their pre-emp- writing. It was at best an agreement to that the land applied for is " uninhabited,” tion rights. When this was done and the raise money for the defense of the claim. and by Section 3, publication of the apspeculation accomplished, the lands were It could not have been enforced against plication to enter the land must be made abandoned. This was felt to be a serious the land.

for sixty days, after which the applicant evil; and Congress in the law under con In Larson vs. Weisbecker (9 Copp, 60) is required to furnish the local officers sideration, undertook to remedy it by re- it was held that a mortgage given by the satisfactory evidence “ that the land is of quiring of the applicant for a pre-emption, pre-emptor upon the land was not an the character contemplated in this act, before he was allowed to enter the land on alienation, nor sucti an agreement as was unoccupied and without improvements," which he had settled, to swear that he had prohibited by the section of the Revised (except such as were made by or belong to not contracted it away, nor settled upon it Statutes under consideration. In that case the applicant) providing, also, that any perto sell it on speculation, but in good it was held that “the statute under con- son having a valid claim to any portion of faith to appropriate it to his own use." sideration requires from a pre-emptor, in the land may object to issuance of patent

I think it is quite clear under the my opinion in order to the defeat of his to the applicant, and that the merits of his facts in this case, that it does not fall entry a contract by force of which title to objections be determined as in other land within tlie class of cases prohibited by the the land must vest in some other person cases, statute.

than himself, and it must appear that such Spithill was thus required to show that There is another branch to this case was his intention at the time of making it." the land was uninhabited, unoccupied and (upon which a large amount of testimony I am of the opinion that Jackman had unimproved, (except by himself) and that even more conflicting has been taken), a legal right to the whole of said south- it was chiefly valuable for timber, and which briefly stated is as follows:

west quarter of section thirty-two, and unfit for cultivation. Should it however Jackman testifies that, in the fall of that it should have been awarded to him.'appear that it is not subject to entry under

66 Pro

the provisions of this act, consideration of would not. The timber culture laws re- Section 6 of the act (13 Stat., 365,) proGowen's pre-emption claim becomes im- quire the affidavit to be made before the vides for the surveying of the lands for material in this case All timbered lands Register and Receiver, or a clerk of some the purpose of the grant for forty miles in are unfit for cultivation in their natural court of record or officer authorized to ad- width on both sides of the entire line condition; but if they may be redeemed minister oaths" in the district where the after the general route shall be fixed.” and made susceptible of cultivation by land is situated.” The word district re- Section 3 grants lands to said company ordinary farming process, they are not, in fers to the land, and not to the judicial within certain limits, which have not been my opinion, within the purpose of this act, district, and consequently such affidavit otherwise appropriated" at the time the which was intended to embrace within its must be made in the “land district” in line of said road is definitely fixed, and a provisions timbered tracts only in broken, which the land sought to be entered is sit- plat thereof filed in the office of the Comrugged or mountainous districts, with soil uated.

missioner of the General Land Office." unfit for ordinary agricultural purposes [See Secretary's Decision, in Corning I think it evident that the legislature when cleared of timber. A different con- Tunnel vs. Slide Lode_Copp's Min. Lands did not intend that the “ general route" struction of the act would subject to its -20 Ed. p. 208.—Ed.]

mentioned in Section 6 and the line of said operation immense bodies of heavily tim

road" definitely fixed " in Section 3 should bered land, which need only enterprise and

be identical. The object of the provisions labor for their conversion into fertile fields


of Section 6 was to reserve the land within and flourishing towns.

NORTHERN PACIFIC RAILROAD. the forty-mile limits generally for the The testimony shows that the tract in Change of Line.—The line of definite location benefit of the company. The actual grant question, with all the land in that vicinity, departs from the line of general route at Gal- of land is made in Section 3; and if the is heavily timbered, but does not show

latin City and unites with it again at the line of the road as “ definitely fixed” that it is unfit for cultivation when cleared "Little Blackfoot.”. Such departure would

so as to of timber. On the contrary it is shown

carry a portion of the land grant outside of varied from the “general route

the forty-mile limits on the north, as estab- place any portion of the grant outside of that neighboring lands of this same gen- lished by the map of general route.

the forty-mile limits, the company lost the eral character are cultivated with fair suc- The company, under its charter, may make this benefits of the reservation, and only took cess. A portion of that in question,

change of line after having filed its map of such lands as were not otherwise appro

vari. ously estimated at from ten to fifty acres, as it has been the uniform practice of the de- priated" at the time” the line was “ deficonsists of a swamp of rich soil, eight or

partment to permit a change of line after nitely fixed.” ten acres of which is now fit for pasture filing a map of general route.

When we consider the great length of and hay (the balance of which may be SECRETARY TELLER to Commissioner Mc Far- the road to be built, the uninhabited and made so by drainage,) and a lake of four land, April 26, 1883.

almost unknown country through which it acres, while the remaining portion is upon I have considered the matter of the was to be constructed, and especially the a level upland, heavily timbered, with a filing of map, July 5, 1882, of definite great difficulty of ascertaining the most gravelly and somewhat sandy soil slightly location of the Northern Pacific Railroad, eligible route through the mountainous mixed with clay, which, under a large through the Rocky Mountain division of portion of the line, it can hardly be suppreponderance of testimony, may be con- said road, and the effect of the line fixed posed that Congress contemplated that verted into farming lands and made fit for by such map upon the land grant contig- the "general route" should necessarily be cultivation. Such land is not, in my opin- uous thereto.

the unvaried line of actual construction, ion, subject to entry under this act, but A map of general route was accepted It is evident that the most feasible route must be appropriated under the pre-emp- by the department February 21, 1872. through the Rocky Mountain division in tion and other laws for the disposition of July 5, 1882, the said company filed its question could be ascertained only by the public lands.

map of definite location of the road maintaining for a long time surveyors and I reverse your decision and dismiss the through the “Rocky Mountain Division." engineers in the field, and after close exapplication of Spithill, leaving the claim of The line of definite location departs amination by explorers and repeated surGowen for his final proof.

from the line of general route at Gallatin veys of various possible ways. Such ex

City and unites with it again at the“ Little tended and deliberate work could not have TIMBER CULTURE.

Blackfoot.” Such departure would carry been contemplated in the establishment of CIRCULAR.

a portion of the land grant outside of the the general route.

forty-mile limits on the north, as estab- It has been the uniform practice of this DEPARTMENT OF THE INTERIOR,

lished by the map of general route. Department to permit a change of line GENERAL LAND OFFICE, WASHINGTON, D. C., May 9, 1883.

The reason of this divergence was the after filing a map of general route. TO REGISTERS AND RECEIVERS :

discovery of a more direct and feasible Such permission was given in the case The circular of March 23, 1883, relative route; and the effect of it is to shorten of the Union Pacific upon a divergence of to fees for reducing testimony to writing. the line between the points where the lines fifty miles, and the land grant was adis so far modified as to exclude the collec- diverge and where they again unite, some justed to the line so changed. It was altion of such fees in final timber culture forty-three miles.

lowed in the case of the road now in quesand desert land entries.

The advantage of the short line in the tion, upon a change of route in Minnesota, N. C. McFARLAND, Commissioner. matter of passage and transportation is by my predecessor, Secretary Cox, who DEPARTMENT OF THE INTERIOR, May 11, 1883. very great to the government and to the directed the grant to be adjusted accordApproved : H. M. TELLER, Secretary. public. It also has the effect to restore to ingly. And in the matter of the branch

the public domain more than a million in Washington Territory, the company DE COSTER AND FLEMINGTON. acres of land.

filed a map of amended line in 1876, varyTimber Culture Afidavit—How made when a The length of the short line is one hun- ing from the line of general route some

county embraces lands in two land districts. dred and fifty-four miles. Since the filing one hundred miles ; and my predecessor, COMM'R MCFARLAND to De Coster Flemington, of the map July 5th last, the grading of Secretary Chandler, approved of the Ellendale, Dak., April 30, 1889. (S. W. Š.) this part of the road has been completed, amended line, and gave directions for the

You state that your county_Dickey– bridges and culverts built, and other work withdrawal of the lands along the route embraces land in both the Fargo and done at an expense of some two millions as amended, and for the restoration of Aberdeen land districts, and ask if a tim- of dollars.

those along the abandoned route. And ber culture affidavit made before a proper The question presented is, whether the such, I think, has been the uniform pracofficer at Ellendale would be good in either company, under its charter was authorized tice of the department. district.

to make this change of line after having In 1880 my predecessor, Secretary In reply, I have to advise you that it' filed its map of general route.

Schurz, submitted certain questions to the

Attorney General in the matter of the Iowa a number of questions arising upon an filed in the General Land Office a map and grant, involving the propositionl of the application of the New Orleans Pacific designating the general route of a road construction of the road upon a line differ- Railway Company for certain lands claimed projected thereby from Shreveport, by ent from that of definite location, and the under the land grant made to the New way of Alexandria to Baton Rouge, and effect of such a change upon the land grant. Orleans, Baton Rouge and Vicksburg thereupon a withdrawal of the public lands

The Attorney General held that the Railroad Company, by the act of Congress along the same was ordered, which became grant should be adjusted according to the of March 3, 1871, chapter 122.

effective in December following. line of definite location, and that if a dif- The land grant mentioned is contained Subsequently by an act of the legislature ferent road was constructed than that defi- in the twenty-second section of that act, of Louisiana, passed December 11, 1872, nitely located, the State would not be en- which provides :

the same company was given “full power titled to the benefit of the lands.

“ That the New Orleans, Baton Rouge and authority to commence the construcThe opinion considered the question of and Vicksburg Railroad Company, char- tion of their road in the city of New Orthe authority of this department to per- tered by the State of Louisiana, shall have leans or Shreveport, or at any intermediate mit a change in the line as definitely lo- the right to connect, by the most eligible point or points on their line of road, as may cated. And upon this subject I quote route, to be selected by said company, best suit the convenience of said company from the opinion (16 Atty.-Gen'l

. Opin., with the said Texas Pacific Railroad at its and facilitate the speedy construction of a 457) as follows:

eastern terminus, and shall have the right continuous line from the city of New Or“The question whether the road con- of way through the public land to the leans to the city of Shreveport, or perfect structed is or is not the road as definitely same extent granted hereby to the said railroad communication with the Texas located is a question for the Interior De- Texas Pacific Railroad Company; and Pacific Railroad, or any other railroad in partment to determine, in this as in other in aid of its construction from New Northwestern Louisiana, at or near the cases, and one which must be largely Orleans to Baton Rouge, thence by Louisiana State line: Provided, however, within the discretion of the Secretary. the way of Alexandria, in said State, to That the said company shall construct the Some deflections must in many cases be connect with the said Texas Pacific Rail- line of its road between the city of New expected from the line of the road as defi- road Company at its eastern terminus, Orleans and the city of Baton Rouge on nitely located; but it is for the depart- there is hereby granted to said company the east side of the Mississippi River, to ment to determine whether or not these its successors and assigns, the same num- the corporate limits of the said city of make of it a different road, or whether ber of alternate sections of public lands Baton Rouge, or adjacent thereto.” there is substantial compliance with the per mile, in the State of Louisiana, as are In the meantime by the act of Congress line of definite location. In the exercise by this act granted in the State of Califor- of May 2, 1872, chapter 132, the Texas and of this discretion it is impossible to lay nia to said Texas Pacific Railroad Com- Pacific Railway Company (formerly styled down any legal rules which could govern pany; and said lands shall be withdrawn the Texas Pacific Railroad Company) was in all cases. Deflections which in certain from market, selected, and patents is- " authorized and required to construct, cases might be held not to change the sued therefor, and opened for settlement maintain, control, and operate a road becharacter of the road as definitely located, and pre-emption, upon the same terms and tween Marshall, Texas, and Shreveport, might do so in others. I would suggest in the same manner and time as is pro- Louisiana, or control and operate any exthat if the deflections be in their character vided for and required from said Texas isting road between said points, of the immaterial—if they were made for the pur- Pacific Railroad Company, within said same gauge as the Texas and Pacific Railpose of avoiding, engineering obstacles State of California: Provided, That said road." The same act further provided which could not otherwise be avoided company shall complete the whole of said that "all roads terminating at Shreveport without exaggerated expense, or to remedy road within five years from the passage of shall have the right to make the same rundefects in the original location—such de- this act."

ning connections, and shall be entitled to flections would not destroy the identity The eastern terminus of the Texas Pa- the same privileges, for the transaction of of the road constructed with the road of cific Railroad, as fixed by the same act, business in connection with the said Texas definite location. Upon the whole matter was a point at or near Marshall, Tex. and Pacific Railway, as are granted to it will be the duty of the Secretary of the The New Orleans, Baton Rouge and roads intersecting therewith." Interior to decide whether the road con- Vicksburg Railroad Company was incor- On February 13, 1873, a second map structed is the road as definitely located.” | porated by an act of the legislature of was filed in the General Land Office by

If the Department has such discretion Louisiana passed December 30, 1869, the New Orleans, Baton Rouge and Vickseven after a road is definitely located, it which authorized it to construct and burg Railroad Company, designating the would seem that there ought not to be operate a railroad" from any point on the general route of a road projected thereby any question about the power to authorize line of the New Orleans, Jackson and from New Orleans to Baton Rouge, and a a change in construction of the road dif- Great Northern Railroad, within the parish withdrawal of the public lands along the ferent from that indicated by the map of of Livingston, running from thence to any same was ordered, which took effect in general route.

point on the boundary line dividing the April, 1873. The route between those I have therefore approved and herewith States of Louisiana and Mississippi," the places, thus designated, lies on the east transmit the map of July 5, 1882. You route here indicated lying east of the Mis- side of the Mississippi River. That comwill cause a withdrawal to be made to sissippi river. It was also authorized to pany has not constructed any part. of its conform to the new line as definitely lo- construct and operate a branch railroad road, either on the route between New cated and designated by such map, and from its main line (above described) to Orleans and Baton Rouge, or

on the restore the lands lying outside of the limits the city of Baton Rouge; and for the pur- route between the latter place and Shreveof the new route, and in all respects ad- pose of connecting its railroad with the rail- port; nor, indeed, has there been a defijust the grant to the new line.

roads of other companies, etc., it was fur- nite location of its road anywhere between

thermore authorized "to construct, main- the points mentioned. Nothing beyond NEW ORLEANS, Baton ROUGE AND VICKs- tain, and use, by running thereon its en- the designation of the general route thereof BURG RAILROAD COMPANY.

gines and cars, such branch railroads and appears. Present Grant-Assignment.—How the grant to

tracks as it may find necessary and ex- Pursuant to a resolution of its board of this railroad is affected by the assignment to pedient to own and use ;' and such branch directors, adopted December 29, 1880, all the New Orleans Pacific Railway Company. railroads were, for all the purposes of the the right, title, and interest of that com

DEPARTMENT OF JUSTICE, act, to be deemed and taken to constitute pany in and to the aforesaid grant of pub

Washington, D. C., June 13, 1882. a part of the main line of its railroad within lic lands made by the act of March 3, By a letter dated the 5th of January the State of Louisiana.

1871, were deeded by it to the New Or last, your predecessor submitted to me On November 11, 1871, that company leans Pacific Railway Company. This ac

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