the lands from market, should be construed as not embracing any lands, excepting those clearly within them. I remark, therefore, in the first place, as to the restrictions imposed by the statute, that it is clear that the local officers could have no authority to sell lands falling to the State by the grant, after the definite location of the line of the railroad, or to sell lands selected by the State as indemnity, after the notification by the State authorities, to your office, of the tracts so selected. Secondly, That the sections remaining to the United States, as alternate to the granted sections, could not be sold by the local officers, at private entry, after the definite location of the road, until after they had been first offered at public sale, at the increased price. The graduation entries, if any, that have been admitted by the local officers at Greenville, and are found to conflict with these views, must remain cancelled. But I do not regard the sales that have been made to actual settlers and cultivators, as in violation of the instructions, and am therefore of the opinion that all persons who have made entries, and can prove that they had settled upon, or cultivated the land before the location of the line of the railroad, if the land be within the six mile limits, or before final selection by the State, if on lands falling to her between the six and fifteen mile limits, are now entitled to have their entries carried into patent. So also all those who prior to the receipt at the Greenville office, of your instructions of the 9th October, 1856, had entered lands falling to the United States, outside the six mile limits, should, I think, receive their patents, according to the regulations in similar cases. The chairman of the Committee on Public Lands, of the House, Hon. W. R. W. Cobb, will be furnished with copies of your report, and this communication, with the suggestion that Congress could grant relief to those persons, who before the location of the railroad route had entered, and have since settled and cultivated, any of the lands which have been reserved to the United States, within the six mile limits of the road, by authorizing patents to issue upon the entries heretofore made, or on condition of paying the difference between the rates already paid, and the enhanced price of the lands. Commissioner of the General Land Office. J. THOMPSON, Secretary. No. 567. An approval of the route of the Marquette and Ontanagon railroad, by the State authorities of Michigan, required. Reasons for not approving different maps of routes, given. DEPARTMENT OF THE INTERIOR, April 6, 1859. Your report of the 25th ultimo, submitted for my consideration, and instructions, the question of "the acceptance of the map" of the location of the Marquette and Ontanagon railroad, "as the basis of the adjustment" of the grant to the State of Michigan, for aid in the construction of a railroad from Marquette to Ontonagon, per Act of Congress, approved, June 3, 1856. (No. 293.) On a careful examination of the papers, I find that a copy of the map of the route of the railroad, in two divisions, was filed in your office in December, 1857, which bears the certificate, with the official seal of the company, by its President and Secretary, that it is a map of the location made by a resolution of the Board of Directors. This map bears also the approval of the Governor of the State, of November 24, 1857, and on the 19th March, 1858, it was confirmed by the State Board of Control, as required by the laws of Michigan. The "statement marked A, and map now presented by Mr. Wilde, chief engineer of the company," refered to in your report, as explaining the objections that had been taken to the route, approved by the Governor, appear to me to confirm those objections; because said statements, in connection with the "map therewith presented," of a route to a considerable extent, very different from the other, tends to show that the map now offered, is the true map of the actual survey of the line, and that the route indicated by the last map is in all respects better, and more direct. This new map, is the one on which the flag stations of survey are marked, and to which the statement A, refers; and on comparing it with the map filed in your office, in 1857, it is found that the route indicated by the last map, is entirely different from that marked on the first, for some ten or twelve miles of the first section of the road, and some twenty-five or thirty miles, on the second section, and these alterations of the route, are not shown to have been accepted or approved by the State. In the present state of the case, it is clear to me, that the first map must be rejected, because it does not represent the actually surveyed line of the road, and is not the most direct practicable route between Marquette and Ontonagon, and it is no less clear that the second map, lately presented by Mr. Wilde the engineer of the railroad company, cannot be accepted by your office, unless it shall be shown that it has been duly ratified and approved by the proper authorities of the State of Michigan. The papers and maps which accompanied your report, are herewith returned. J. THOMPSON, Secretary. Commissioner of the General Land Office. No. 568. In cases where lands are claimed by States under both swamp and railroad grants, the Act of 3d March, 1857, will be considered as confirming swamp selections only as against the United States. If the lands are found not to have passed by the Swamp grant to the State, they will be included in the lists of railroad lands. DEPARTMENT OF THE INTERIOR, Having considered your report of the 5th instant, in relation to the course to be pursued by your office, in cases where lands selected as swamp lands and reported to and remaining on the files of your office, on the 3d March 1857, (No. 319,) and found to have the same legal designation as lands granted for railroad purposes, along the lines of roads that had become "definitely fixed before that date," I have to state that I do not approve a return to the policy which prevailed under the Circulars of December 21, 1850, and February 11, 1856. If the certification of any such tracts as swamp lands, enuring to a State under the Act of September 28, 1850, (No. 182,) is contested by the production of any proof or information sufficient to create a doubt as to the actual character of the tract or tracts, you will be under the necessity of obtaining, through the proper officers, such authentic evidence or official reports as will enable you to decide; but if no contest is made none need be invited. I think we may proceed to act upon the selections in the cases of such ap parently conflicting grants under the laws making the grants, treating the Act, 3d March, 1857, as confirming swamp selections only as against the United States, and not as extending to those cases in which the provisions. of that law appear exactly to balance each other. If, therefore, the tracts in question, have been or can be satisfactorily shown in the regular course of proceeding, under the swamp land laws, to be swamp and overflowed, they should be certified to the State as such. If, however, the lands are not found to have passed to the State, by the first grant, they will be included in the lists of railroad lands as falling under the later grant. Commissioner of the General Land Office. J. THOMPSON, Secretary. No. 569. Lands between the six and fifteen mile limits of a railroad, are subject to Pre-emptions. DEPARTMENT OF THE INTERIOR, In the case involving the pre-emption claim of Donald R. M'Donald, to certain lands within the six mile limits of the Florida Railroad, which was received with your letter of 4th February, 1859, I concur in opinion with you that the land embraced in his claim which lies within the six mile limits of said railroad, is not subject to pre-emption entry by said M'Donald, as claimed by him. It is understood that the northwest quarter of southeast quarter of section 21, township 12 south, range 18, east, is between the six and fifteen mile limits of said road, and if it shall appear that the improvements of said M'Donald are situated thereon, no reason is perceived for cancelling the entry of that particular subdivision. The other portions of the lands claimed are within the six mile limits of the road, and it appears that the same have been approved to the State of Florida. The pre-emption claim thereto is invalid, and the entry thereof has been properly cancelled. The papers belonging to the case are herewith returned. J. THOMPSON, Secretary. Commissioner of the General Land Office. No. 570. Where doubt exists as to the construction of a railroad grant, there is a propriety in administering the grant according to the terms of accept ance. Where the locations of the lines of roads are coincident, the State will not be entitled to indemnity for any diminution in the quantity of any or all the grants. DEPARTMENT OF THE INTERIOR, Your report of the 6th instant, has submitted a map of the location of a route of a railroad from Little Bay de Noquette to Marquette, adopted in November, 1857, by the Board of Directors of the railroad company, and approved December 1, 1857, by the Governor of Michigan, in view of the grant to that State for aid in the construction of certain railroads, by the Act of Congress, approved June 3, 1856. With your report of the 25th ultimo, a line of route for a railroad from Marquette to Ontonagon was before me, which had been presented to your office as a location in view of the same grant; and some doubt exists whether we ought not to regard the Act of Congress as having made provision. for a single road from Little Bay de Noquette to Ontonagon via Marquette By the same act of Congress, land is granted for aid in constructing a road from Marquette to the Wisconsin State line, and the diagram exhibiting the routes of the three roads, which we should expect to radiate from Marquette, shows that from Marquette to the vicinity of Seal Lake, a distance of about seventeen miles, the lines of the three railroads have been located over the same route. These two questions are brought to our notice :-Firstly, Can we regard the three as separate roads; and why? If so, can the location of the routes of the three, on lines coincident for seventeen miles, be recognized, if no other valid objection exists, to such location? I think that we may regard the three as separate roads, inasmuch as the State, by the legislative act accepting the grant, and the approval of the several locations of the routes, has so treated them; where doubt exists as to the construction of the grant, and such grant has been accepted, with a particular understanding on the part of the grantee, there is an obvious propriety in administering the grant according to the terms of acceptance. Secondly. As to the location on lines coincident for a considerable distance, it is shown, that all the lines must attain an elevation of seven hundred to nine hundred and fifty feet above the waters of Lake Superior, within the first fifteen or eighteen miles of their route, on any line or lines that may be selected, in going from Marquette; and on the seventeen miles in question, it appears that a railroad has already been constructed at a very heavy expense, which runs through the heart of the iron region. The adoption of this seventeen miles as a part of the line from Little Bay de Noquette to Marquette, is claimed with peculiar force, for the reason that the Iron Mountain Railroad has been purchased by the Bay de Noquette and Marquette Railroad Company, to which the State had passed the land grant; and the State legislature has, by a recent law, confirmed the sale, and the consequent consolidation of the two roads, thus making the seventeen miles a part of the line of route between the two places, Bay de Noquette and Marquette. On the filing in your office of the authenticated copy of the recent State law referred to, and the production of the evidence that the two companies thereby consolidated, have, as required by the third section thereof, filed their assent in the office of the Secretary of State, at Lansing, I think the map before me may be accepted as the basis for the adjustment of the grant, on the principles which I will proceed to indicate. As the map presented, does not show the date of the field-work of survey, and the president of the company, which claims in the interest of the State, proposes to waive any claim of prior specific date, and adopt the date of the approval by the Governor of the State of the map of the location as the date of the survey of the entire line, I think we may adopt the latter date as the date of the survey. In acquiescing in the action of the legislature and executive of the State of Michigan, in treating the three roads named as separate roads, having distinct grants for their benefit, and in locating the lines of said roads so they will coincide for a distance of about seventeen miles, I deem it proper to add, that the Act of Congress of June 3, 1856, (No. 293,) grants only every alternate section of land, designated by odd numbers, for six sections in width or each side of “each of said roads," and not a quantity of land equal to every alternate section for six sections in width, &c., for their entire length upon TITLE 8.] RAILROAD SELECTIONS. the ground. It follows, that where the locations of the lines of the roads are coincident, the alternate sections have only been granted, and they but once; and as the indemnity which the State can claim, extends only for 'any sections or parts of sections granted as aforesaid," "which the United States has sold, or to which the right of pre-emption has attached," or, “which the United States has otherwise appropriated," it is clear that the State will not be entitled to indemnity for any diminution in the quantity of any or all the three grants, consequent upon the interference of the granting and selecting limits, by reason of the coincident locations of the roads, for a part of their respective lines. The map and papers submitted with your report, are herewith returned to your office. J. THOMPSON, Secretary. Commissioner of the General Land Office. No. 571. Before title to Railroad Lands will vest in the State, the route must be staked off and marked upon the ground, in such manner as to indicate clearly the fixedness of the route. Mode of determining the Route of a Road, and the exact lands to which the State is entitled, specified. Conflicting Pre-emption Claims to lands claimed under a Railroad grant, considered. DEPARTMENT OF THE INTERIOR, Sir-Your report of the 8th November last, upon the petition of certain settlers in townships 27 and 28 north, of range 18, east, and relative to certain pre-emption entries at the Menasha Land Office, which have been ordered to be cancelled; and also your report of the 17th ultimo, in the case of Closson Shurtluff's pre-emption entry at Menasha, on the 17th May, 1858, in section 33, township 32 north, range 16, east, have been carefully considered, and my conclusions are as follows: The title to odd numbered sections, within the six mile limits of the St. Paul and Fon-du-Lac Railroad line, did not vest in the State of Wisconsin from a survey of the route of the road, unless said route was staked off and marked upon the ground, so that the line of route could be readily found and seen by any ordinary observer, who, as an individual seeking a place to settle, or as a resident of the vicinity, should go upon the ground to view the land, or to find and observe the exact location of the line of the road for any one mile of its course. * * The mere survey of a line, as Attorney-General Cushing decided, "fixes "Definitely nothing," "It is means of information, not location.” fixed, implies fixed without capacity of change." When "surveying and marking the line on the ground," "definitely fixes" the line of a railroad route, I think it is necessarily implied that stakes and stones are set, and marks on the ground made, which will fix on the surface of the earth the exact route over which the road will pass, as a fact notorious and easily observed as it passes through specific sections of land; the grant being by sections, as to relative position, and as to the strip of land wherein the alternates granted are to be found. When only a preliminary survey has been made, pursuant to which the |
