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1st Session

RAILROAD LAND GRANTS IN OREGON

DECISION AND OPINION OF
JUDGE CHARLES E. WOLVERTON

ON DEMURRERS INTER-
POSED BY DEFENDANTS

IN THE CASE OF

THE UNITED STATES OF AMERICA

V.

OREGON AND CALIFORNIA RAIL-

ROAD CO. ET AL.

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RAILROAD LAND GRANTS IN OREGON.

IN THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT

OF OREGON.

UNITED STATES OF AMERICA, PLAINTIFF, v. OREGON AND CALIFORNIA RAILROAD COMPANY ET AL., DEFENDANTS.

No. 3340.

John L. SNYDER ET AL., cross-complainants.
FRANK TERRACE ET AL., intervenors.
JOHN MOCOURT, United States attorney.

D. D. TOWNSEND and TRACY C. BECKER, special counsel for the Government.

P. F. DUNNE, Wm. D. FENTON, and WM. SINGER, Jr., for defendants. A. W. LAFFERTY and ARTHUR I. MOULTON, for cross-complainants.

C. I. LEAVENGOOD, CHARLES E. SHEPARD, WM. H. FLETT, JNO. Mills Day, and M. E. BREWER, for intervenors.

DECISION AND OPINION OF JUDGE CHARLES E. WOLVERTON ON DEMURRERS INTER

POSED BY DEFENDANTS.

STATEMENT OF CASE.

After setting out the citizenship, and residence of the respective parties, the bill of complaint states, in effect:

On July 25, 1866, Congress passed an act granting lands in aid of the construction of a railroad and telegraph line from the Central Pacific Railroad, in California, to Portland, in Oregon. By its first section the act authorizes and empowers the California & Oregon Railroad Co., and such company organized under the laws of the State of Oregon as the legislature thereof shall thereafter designate, to construct and maintain a railroad and telegraph line between the city of Portland, in Oregon, and the Central Pacific Railroad, in California.

Thereafter it is provided as follows: Sec. 2. That there be, and hereby is, granted to the said companies, their suc. cessors and assigns, for the purpose of aiding in the construction of said railroad and telegraph line, and to secure the safe and speedy transportation of the mails, troops, munitions of war, and public stores over the line of said railroad, every alternate section of public land, not mineral, designated by odd numbers, to the amount of twenty alternate sections per mile (ten on each side) of said railroad line; and when any of said alternate sections or parts of sections shall be found to have been granted, sold, reserved, occupied by homestead settlers, preempted, or otherwise disposed of,

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other lands, designated as aforesaid, shall be selected by said companies in lieu thereof, under the direction of the Secretary of the Interior, in alternate sections designated by odd numbers as aforesaid, nearest to and not more than ten miles beyond the limits of said first-named alternate sections; and as soon as the said companies, or either of them, shall file in the office of the Secretary of the Interior a map of the survey of said railroad, or any portion thereof, not less than sixty continuous miles from either terminus, the Secretary of the Interior shall withdraw from sale public lands herein granted on each side of said railroad, so far as located and within the limits before specified. The lands herein granted shall be applied to the building of said road within the States, respectively, wherein they are situated. And the sections and parts of sections of land which shall remain in the United States within the limits of the aforesaid grant shall not be sold for less than double the minimum price of public lands when sold: Provided, That bona fide and actual settlers under the preemption laws of the United States may, after due proof of settlement, improvement, and occupation, as now provided by law, purchase the same at the price fixed for said lands at the date of such settlement, improvement, and occupation: And provided also, That settlers under the provisions of the homestead act, who comply with the terms and requirements of said act, shall be entitled, within the limits of said grant, to patents for an amount not exceeding eighty acres of the land so reserved by the United States, anything in this act to the contrary notwithstanding.

SEC. 3. That the right of way through the public lands be, and the same is hereby, granted to said companies for the construction of said railroad and telegraph line; and the right, power, and authority are hereby given to said companies to take from the public lands adjacent to the line of said road earth, stone, timber, water, and other materials for the construction thereof. Said right of way is granted to said railroad to the extent of one hundred feet in width on each side of said railroad where it may pass over the public lands, including all necessary grounds for stations, buildings, workshops, depots, machine shops, switches, sidetracks, turntables, water stations, or any other structures required in the construction and operating of said road.

Sec. 4. That whenever twenty or more consecutive miles of the road shall have been completed and ready for use, the same shall be examined by three commissioners appointed by the President, who are required to report to the President; and if it shall appear that the line of road and telegraph has been constructed and equipped in accordance with the terms of the act, then that patents shall issue to the company entitled to the same for the lands granted to the extent and coterminous with the completed section, and thus from time to time, whenever other sections of the road shall be completed, until the entire line shall have been constructed.

Sec. 5. That the grants aforesaid are made upon the condition that the said companies shall keep said railroad and telegraph in repair and use, and shall at all times transport the mails upon said railroad and transmit despatches by said telegraph line for the Government of the United States, when required so to do by any department thereof, and that the Government shall at all times have the preference in the use of said railroad and telegraph therefor at fair and reasonable rates of compensation, not to exceed the rates paid by private parties for the same kind of service. And said railroad shall be and remain a public highway for the use of the Government of the United States, free of all toll or other charges upon the transportation of the property or troops of the United States; and the same shall be transported over said road at the cost, charge, and expense of the corporations or companies owning or operating the same, when so required by the Government of the United States.

Sec. 6. That the said companies shall file their assent to this act in the Department of the Interior within one year after the passage hereof, and shall complete the first section of twenty miles of said railroad and telegraph within two years, and at least twenty miles in each year thereafter, and the whole on or before the first day of July, one tħousand eight hundred and seventy-five; and the said railroad shall be of the same gauge as the “Central Pacific Railroad" of California, and be connected therewith.

Sec. 7. That the said companies named in this act are hereby required to operate and use the portions or parts of said railroad and telegraph mentioned in section one of this act for all purposes of transportation, travel, and communication, so far as the Government and public are concerned, as one connected and continuous line; and in such operation and use to afford and secure to each other equal advantages and facilities as to rates, time, and transportation, without any discrimination whatever, on pain of forfeiting the full amount of damage sustained on account of such discrimination, to be sued for and recovered in any court of the United States, or of any State, of competent jurisdiction.

Sec. 8. That in case the said companies shall fail to comply with the terms and conditions required, namely, by not filing their assent thereto as provided in section six of this act, or by not completing the same as provided in said section, this act shall be

null and void, and all the lands not conveyed by patent to said company or companies, as the case may be, at the date of any such failure, shall revert to the United States. And in case the said road and telegraph line shall not be kept in repair and fit for use, after the same shall have been completed, Congress may pass an act to put the same in repair and use, and may direct the income of said railroad and telegraph line to be thereafter devoted to the United States, to repay all expenditures caused by the default and neglect of said companies or either of them, as the case may be, or may fix pecuniary responsibility, not exceeding the value of the lands granted by this act.

Sec. 9. That the companies concerned shall be governed by the general laws of the respective States as to the construction and management of said railroad and telegraph line in all matters not provided for in the act.

Sec. 10. That all mineral lands, except such as shall contain coal and iron, shall be excepted from the operation of the grant; but that where such lands contain timber so much of the timber as shall be required to construct the road over the lands is hereby granted.

Sec. 11. That said companies shall be governed by the statutory regulations of the States concerned in all matters pertaining to the right of way wherever said road shall not pass through public lands of the General Government.

Sec. 12. That Congress may at any time, having due regard for the rights of said California and Oregon railroad companies, add to, alter, amend, or repeal this act.

This act was amended June 25, 1868, whereby section 6 thereof was made to provide that

Instead of the times now fixed in said section, the first section of twenty miles of said railroad and telegraph shall be completed within eighteen months from the passage of this act, and at least twenty miles in each two years thereafter, and the whole on or before the first day of July, anno Domini eighteen hundred and eighty.

About October 6, 1866, certain persons attempted to organize a corporation bearing the name “Oregon Central Railroad Company, having its principal office at Portland, Oreg. This company projected its line of road from Portland to Forest Grove, thence to McMinnville, on the westerly side of the Willamette River. For convenience, it will be hereafter referred to as the “West Side Co.,'' and its line as the “West Side Line."

On October 10, 1866, the Legislative Assembly of the State of Oregon, by joint resolution, designated the Oregon Central Railroad Co. as the organization entitled to receive the grant and benefits accorded by the act of Congress of July 25, 1866. This company, on May 25, 1867, assented to the provisions of said act of Congress, and thereafter, about July 6, 1867, filed an authenticated copy of its resolution, together with a certified copy of its articles of incorporation and of the joint resolution of the Legislative Assembly of Oregon, with the Secretary of the Interior, and on about the 20th of August, 1868, filed with such officer a general map of survey of its projected line of railroad.

, contending that said West Side Co. was not regularly and lawfully incorporated, and designing to secure the grant and privileges accorded by said act of Congress of July 25, 1866, organized another corporation bearing the name “Oregon Central Railroad Co.," having its principal place of business at the city of Salem, Oreg. This company projected its line of road on the easterly side of the Willamette River, and for convenience will be designated the “East Side Co.," and its line the East Side Line."

On October 20, 1868, the East Side Co. procured a joint resolution to be adopted by the legislative assembly of the State of Oregon, whereby, after setting out, among other things, the adoption of the act of Congress of July 25, 1866, the adoption, by the legislature of the

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