:
206 154
F
(4
754
SPECIAL PRIVILEGE
PUBLIC LANDS
IN THE
THE ORIGINAL GRANT OF 43,159,428.04 ACRES
TO THE
ПС
1062
L39

NORTHERN PACIFIC RAILWAY COMPANY
AND THE
SUBSEQUENT AND ADDITIONAL GRANTS
TO THAT COMPANY
UNDER
'SPECIAL AND ADVANTAGEOUS" SCRIP LAWS
R&C
PUBLIC LAND, MINING AND INDIAN LAND CASES
LAND SCRIP
PATRICK H. LOUGHRAN
ATTORNEY AT LAW
BARRISTER BUILDING
WASHINGTON, D. C.
FORMERLY EXAMINER IN MINERAL, FORESTRY AND FIELD SERVICE
DIVISIONS OF THE GENERAL LAND OFFICE, AND SPECIAL AGENT.
FOURTEEN YEARS' EXPERIENCE, SEVEN IN PRACTICE


The two acts of Congress discussed in this pamphlet have
been referred to in decisions of the Department of the Interior
as legislation giving to the Northern Pacific Railway Company
a “special and advantageous" relation to the public lands.
As achievements of Congress these two acts reflect credit-
ably only upon the capable and brilliant lobby that so adroitly,
noiselessly and expeditiously procured their enactment.
It is hoped that if Congress ever again professes a desire to
protect settlers against the claims of the Northern Pacific
Railway Company that the method to effectuate the ex-
pressed desire will be somewhat different from one that en-
ables that corporation, at its option, either to waive in favor
of the settler and obtain, in consideration for such waiver, a
right to scrip the most valuable of the public lands situate
anywhere in any of the Northern Pacific Railway States, or
to enforce its claim against the settler if the land he occupies.
is more valuable to the company than any tract of land it could
acquire with the scrip right that would arise out of a waiver.
The present method gives no assurance to the settler, is ad-
vantageous only to the company, is against the public interests
and if duly investigated would be abolished.
It is further hoped that if Congress ever again deems it
promotive of the public interests to establish more national
forests and national parks that the lands needed will be ob-
tained without giving the owners thereof a fancy and ridicul-
ously extragavant price therefor in the way of a right to scrip
any of the public lands of the United States. Unquestionably
it would be far more economical to procure the lands by pay-
ing twice, or many times, their real value than to obtain them
in the way that the United States procured the holdings of the
Northern Pacific Railway Company in the Mt. Ranier Na-
tional Park in the State of Washington.
MV.P
B
+
3-16.
CONTENTS.
(a) "A NEW, INDEPENDENT GRANT TO THE NORTHERN PACIFIC RAIL-
WAY COMPANY" HIDDEN IN THE PROVISIONS OF THE SUNDRY CIVIL AP-
PROPRIATION ACT OF JULY 1, 1898, (30 STAT., 587-620). A bill for the
appropriation of public moneys for public purposes becomes, while in the
Senate Committee on Appropriations, also a bill for the appropriation of
public lands for private purposes of the Northern Pacific Railway
Company. Constructions of the act in favor of the Company and
attempts by it to obtain even more favorable constructions.
(b) ENLARGING NATIONAL FORESTS WITH THE CONSENT AND TO THE
Profit of the NORTHERN PACIFIC RAILWAY COMPANY. Swapping com-
pany lands in a forest reserve for coal lands of the United States under
sanction of a decision of the Department of the Interior rendered Febru-
ary 28, 1903, (32 L. D., 28), and since declared unsound by the courts.
The Company's enormous supply of floating land scrip.
(c) A "MORE FANCIFUL THAN REAL" CLAIM BY THE NORTHERN PA-
CIFIC RAILWAY COMPANY TO MORE THAN 100,000 ACRES OF THE PUBLIC
DOMAIN. The Company's apparent contemptuous disregard of decisions.
of the Department of the Interior. What the company accomplished un-
der an inadvertently issued land patent which it refused to surrender.
Withdrawing lands from entry and suspending operation of laws of
Congress with respect thereto simply because "the attorneys for the
Railroad Company have requested" and without notice to bona fide
settlers and applicants claiming adversely to the company.
(d) THE EXPERIENCE OF AN IDAHO HOMESTEADER WITH THE NORTH-
ERN PACIFIC RAILWAY COMPANY AND its TransfeREE. A settler's claim
twelve years old in litigation with the company for eight years. Dur-
ing pendency of the proceedings the company obtains an inadvertently
issued patent for the land and withholds notice of the fact both from
land department and the homesteader.
PUBLIC LAND, MINING AND INDIAN LAND CASES
LAND SCRIP
PATRICK H. LOUGHRAN
ATTORNEY AT LAW
BARRISTER BUILDING
WASHINGTON, D. C.
—
Formerly examiner in the Mineral, Forestry and Field Service Divisions of the Gen.
eral Land Office, and Special Agent. Fourteen years' experience, seven in practice.
ΗΞ
W
1062
.489
RAILROAD LAND GRANT
LEGISLATION IN DISGUISE.
APPROPRIATING PUBLIC LANDS FOR PRIVATE PURPOSES
UNDER COVER OF AN ACT
APPROPRIATING PUBLIC MONEYS FOR PUBLIC PURPOSES.
(Sundry Civil Appropriation Act of July 1, 1898, 30 Stat., 597-620.)
¦
THE PRETENSE-Protection of public land settlers.
THE PURPOSE-A new land grant to a railroad.
THE EFFECT-Enrichment of a railroad corporation out of the
public lands without any resultant benefit whatsoever either
to the people or to the government. Corporate acquisition by
scrip of the most valuable of the surveyed and unsurveyed pub-
lic lands situate anywhere in the Northern Pacific Railway
States.
THE BENEFICIARY-The Northern Pacific Railway Company.
THE VICTIM-The People of the United States, as usual.
THE REMEDY-Immediate repeal.
THE MORAL-Make impossible the masquerading of private acts
and legislative agreements in the guise of public acts of Con-
gress. The public eye should be on the public lands and upon
the "insidious lobby."
THE WARNING-Defeat any attempt to extend the field of use of
Northern Pacific Railway scrip to all the public land States.
In consideration for the construction of a railroad the United States
gave to a corporation, to whose rights and property the Northern
Pacific Railway Company has succeeded, 43,159,428.04 acres of the
public domain. See private act of Congress of July 2, 1864, (13 Stat.,
365) and the joint resolution of May 31, 1870 (16 Stat., 378). See
also "Statement showing Land Grants made by Congress to aid in
the Construction of Railroad," et cet., approved by the Department
of the Interior on November 27th, 1907.
The lands granted to the predecessor in interest of the Northern
Pacific Railway Company were afterwards authoratively declared to
be located within certain specified boundaries within each of the
States in which the road was constructed, and not elsewhere. The
primary (or place) and the indemnity limits of the grant were care-
fully described by the government and the description made public.
Thus did the government confine the operation of the grant to cer-
tain well defined, ascertained and limited areas beyond which the
5
.M.
railway company was actually forbidden to go for selection of lands
in satisfaction of the grant. Thus also did the government adopt
measures to inform the prospective settler of the particular places.
where he might find himself opposed, in his efforts to acquire a free
home upon the public lands, by a powerful adversary claiming under
a "legislative contract" with the United States. (The Company
always refers to the congressional land grant as its "legislative con-
tract" with the government.)
For the purpose of showing that the provisions of the granting act
of 1864 and of the resolution of 1870 were, probably, ample to enable
the government to wholly satisfy the grant to the company without
the aid of additional legislation we will state in the succeeding para-
graph the views of former Attorneys General of the United States on
the provisions of the granting act as to indemnity for lands in the
primary limits to which other claims had attached.
In the opinion of the Attorney General given January 17th, 1888,
(19 Op., 88), it was said that for agricultural land losses within the
primary limits in one State, indemnity might be taken by the selec-
tion of lands in odd numbered sections in any other of the Northern
Pacific States, provided such indemnity was taken from the original
ten-mile indemnity limit fixed by the granting act of 1864. For a
loss from primary limits in the State of Montana, for instance, in-
demnity could be obtained by the selection of land in Oregon. In the
same opinion, however, it was stated that selections within the second
indemnity belt (i. e., that created by the joint resolution of May 31st,
1870, 16 Stat., 378), were restricted to the limits of the particular
State in which the granted lands were lost.
An opinion of the Attorney General of the United States, given
July 24th, 1912, (29 Op., 498 and 41 L. D., 571), is to the effect that
for lands within the primary or place limits of the grant lost to the
company by reason of their mineral character, indemnity therefor can
be taken from any public lands in odd numbered sections situate any-
where within fifty miles of the line of the road in any Northern
Pacific Railway State. This opinion was given because of a ques-
tion as to whether the terms of the act of July 2, 1864, supra, limited
the company in its selections of indemnity for lost mineral lands to
other lands within the same State where the loss occurred. A pro-
viso to Section 3 of the said act, as published in the Statutes at Large,
confines the indemnity selection for mineral losses to "odd numbered
sections nearest to the line of said road," but the same proviso as it
appears in the enrolled and recorded statute in the State Depart-
ment (a difference existing between the statute as published in the
print of the laws of Congress and as officially enrolled) confines the
indemnity selection for such mineral losses to-
"Odd numbered sections, nearest to the line of said road, and
within fifty miles thereof."
Hence, apparently, the opinion to the effect that at any place within
fifty miles of the road is also "nearest to the line of said road," and
that for mineral losses in Montana indemnity can be had by the
selection of lands anywhere within fifty miles of the road in Wiscon-
sin, the fact that there is an abundance of public land in Wisconsin
within one mile, for instance, being immaterial notwithstanding the
words "nearest to the line of said road."
6
This opinion of July 24th, 1912, is also to the effect-
"That the Company may select, as indemnity, lands within the
primary limits, which at the time the grant attached were 'reserved,
sold, granted, or otherwise appropriated,' but which have since been
relieved of that impediment and at the time of the selection are un-
occupied or unappropriated public lands."
If the provisions of the original acts as to indemnity were not such
as to render possible full satisfaction of the grant without additional
legislation, could not Congress have provided for a third indemnity
belt or have taken some other action looking to an adjustment of the
grant by selection of indemnity within specified limits and within a
reasonable time after the loss within primary limits was ascertained?
Should there not be enacted, even at this late date, a statute per-
emptorily requiring the taking of indemnity immediately upon ascer-
tainment of the loss upon penalty of forfeiture of right to indemnity?
We need not here offer the proof that good and bad land, rich land
and poor land were within the immense territory, extending through
several States, which had been granted to the company. There were
some lands within the grant of great value and there were others of
practically no value. Manifestly, therefore, it was to the interest of
the company to retain the valuable lands and, obviously, it was to its
interest to trade the worthless or nearly worthless lands for valuable
lands, if any means for so doing could be devised. In short, it was
desirable from the view point of the company's interests to have the
original grant so modified as to permit the acquisition of title there-
under to any lands wheresoever situate in any of the Northern
Pacific Railway States, regardless of both the primary and indemnity
limits of the grant as originally fixed and determined by the govern-
ment. The company found a way of doing this. For thirty-four
years--from 1864 to 1898-the Company was busy perfecting title
to the best of the lands within the grant and in doing so it displayed
little or no interest in the claims of settlers but after the best land
in the grant had been secured by the company it suddenly manifested
- a great paternal interest in the poor settler. Theretofore the poor
settler could shift for himself, but in 1898 the poor settler became an
object of the company's tenderest solicitude. The company then
discovered that under the pretext of protecting the poor settler it was
possible for the company to "swap" much of its inferior lands for an
equal quantity of the best of the remaining public lands. Would
the company have desired the act of 1898 and have promptly and
formally accepted all of its provisions if the company doubted that
the act would operate to its advantage and profit?
A NEW, INDEPENDENT GRANT
THE LEGISLATIVE HISTORY OF THE RAILROAD SCRIP ACT OF JULY 1, 1898
The act of July 1, 1898, (30 Stat., 597,620), is entitled “An act
making appropriations for sundry civil expenses of the government
for the fiscal year ending June 30th, 1899." One would not infer
from the title of the act that it was also an act appropriating the
public lands for private purposes or that it was an act enabling the
Northern Pacific Railway Company to disregard the primary and
indemnity limits fixed by the granting act of 1864, to pick the most
7
/
valuable public lands wheresoever situate in all the Northern Pacific
Railway States, and to enable that company to create an enormous
supply of public land scrip. Appropriation acts have often carried
legislative "riders," and have often been the media of enactment of
measures which would probably have failed of enactment if not
covered up in such acts, but a railroad land grant "rider" is so
extraordinary a feat of legislative legerdemain that its history ought
to be interesting.
The said act originated in House bill 8428, 55th Congress, 2d Ses-
sion. That bill, as it passed the House of Representatives, con-
tained no provision whatever concerning lands within the primary and
indemnity limits of the grant to the Northern Pacific Railway Com-
pany. It was while the bill was in the Senate Committee on Ap-
propriations that there was inserted therein, by way of committee.
amendment, the provision affecting the land grant to that company.
The Senate Committee's report on the bill to the Senate contains
absolutely nothing whatever tending to disclose what that committee
had done in the way of making an appropriation bill a bill also to
further enrich a railway company out of the public lands. (See
Senate Report 813, 55th Congress, 2nd session, which relates ex-
clusively to the financial items of the bill.)
The great Webster in one of his many eloquent addresses, asked,
"What governmental arm held its egis over our fathers' heads as
they pioneered their way in the wilderness?"
We ask what influence, governmental or otherwise, pioneered the
way of this public lands and railroad measure between the Charybdis
of the Committee on Public Lands and the Scylla of the Committee
on Railroads safe into the welcoming, accommodating haven of the
Senate Committee on Appropriations?
When said appropriation bill was under consideration in the Senate,
Senator Stewart, of Nevada, in referring to the committee's railroad
land amendment, said:
"Mr. President, I think this is rather a dangerous provision. * * *
There might be several million acres of land which would be re-
linquished to the settlers, and the railroad or the grantees of the rail-
road would receive floating scrip. *** We have seen the Valentine
and other kinds of floating scrip, to be located on surveyed or un-
surveyed lands, used for very unworthy purposes.
That has
been the bane of the public land laws. *** That is a pretty large
scheme of floating scrip. *** It makes a large area over which
the floating scrip will be a great evil," et cetera. (See page 3555 of
the Congressional Record, 55th Congress, 2nd Session.)
***
Senator Carter, of Montana, a Northern Pacific Railway State, in
answer to Senator Stewart, said that—
"This amendment might properly be denominated a bill of repose
or a bill for the relief of settlers." (See page 3555 of said record.)
Senator Wilson, of Washington, a Northern Pacific Railroad State,
expressed himself concerning the amendment, as follows:
"It is not possible-and I think any man who knows anything
about the situation knows this is true-for the railway company to
secure in any way or in any manner as valuable lands as they are
relinquishing." (See page 3556 of the said record.)
8
Senator Stewart, of Nevada, further said:
"The floating scrip gets into the hands of a whole lot of speculators.
and they run all over the country." (See page 3556 of said record.)
Senator Turner, of Washington, a Northern Pacific Railway State,
stated his views concerning the amendment, as follows:
"Mr. President, I am very doubtful about the propriety of this
legislation at all ***
* *. It seems to me to be going a very long way
indeed and to be paying a very high price indeed for quieting the
rights of settlers on the land to give a new, independent grant to the
Northern Pacific Railway Company of several million acres of land
located anywhere within any of the States or territories through which
the road runs." (See page 3556 of said record.)
Senator Turner further said:
"I do not think the State of Washington, which desires that its
public lands shall be kept for actual settlers, ought to have those pub-
lic lands subject to be depleted by selections by the Railroad Com-
pany for lands surrendered in Montana or Idaho or Dakota." (See
page 3558 of said record.)
The Senate Committee's said amendment had the unqualified en-
dorsement of the then Secretary of the Interior, Cornelius N. Bliss,
of New York, who on March 17th, 1898, in a letter on the subject,
expressed himself, as follows:
"The provisions of the proposed amendment meet with my full
approval, and I recommend that they be enacted into law." (See
page 3558 of said record.)
Under the provisions of the act of 1898 persons who had certain
claims in existence on January 1, 1898, to parts of odd numbered sec-
tions within the company's grant have a right to acquire title thereto
under such claims, provided the company has not sold, contracted to
sell, and does not use or need, the lands so claimed; or the persons
having such claims may relinquish them by transfer thereof to lands.
situate anywhere in any Northern Pacific Railway State except
within the limits of the grant to the company.
In Hanley vs. Northern Pacific Railway Company (39 L. D., 389,
Vancouver serial 04023), Hanley elected to retain the land claimed
by him. The Company was then called upon to relinquish and
answered by alleging that it had contracted to sell the land to the
Weyerhaueser Timber Company. Hanley demanded proof of the
Company's allegation whereupon a hearing was had. At the hearing
there was introduced in evidence a copy of a contract between the
Weyerhaueser Company and the Railway Company which purports
to show that the timber company had contracted to buy from the
Railway Company "all your scripped lands in Western Washington,
approximately 90,000 acres" 80,450 acres of other lands and the tim-
ber upon a third area. Upon this showing the General Land Office
on April 3, 1913, held that there was no obligation resting upon the
Railway Company to relinquish and advised Hanley that he could
either transfer his claim to other land or abandon it. The Railway
Company successfully opposed Hanley for electing to retain the land
claimed by him, while in Huston vs. Northern Pacific Railway Com-
pany (38 L. D., 616), it successfully opposed Huston for electing to
abandon his land. It seems that the company can get 'em both
'goin and comin'.
9
The Hanley case, supra, serves to show one of the effects of the act
of 1898. It serves to advise the public of the ultimate chief benefici-
aries of that legislation. It serves also to advise the public of how
easy it is for interests so powerful as the Northern Pacific Railway
Company supplemented, perhaps, by the powerful influence of the
large timber companies, especially the Weyerhaueser Company (be-
tween which latter timber company and the railway company there
is supposed to exist an extraordinarily cordial business relation) to
so thoroughly arouse a Senate Committee upon the pretext of doing
something for public land settlers, as to have enacted, under the title
of an act appropriating public money for a public purpose a measure
appropriating public land for a private purpose. It serves also to
show how by legislation, and by legislation alone, a railway company
may be enriched out of the public lands for doing practically nothing
whatever aside from formally accepting the provisions of an act of
Congress so carefully drawn as to enable the company to prevent the
loss to it thereunder of anything of value it "uses or needs for rail-
road purposes." Millions of dollars have probably been made by the
company, or will be made, because of said act which could not have
been made by it otherwise.
The act as construed by the Land Department in the case entitled
Northern Pacific Railway Company against Violette (36 L. D., 182),
makes it entirely optional with the company whether it will relinquish
its right to any lands in an odd numbered section of unsurveyed land.
within its grant upon which settlement shall be made after January
1, 1898. In other words, there is not even a semblance of obligation
upon the company to relinquish land in an odd numbered section of
unsurveyed land within its grant upon which settlement may be made.
after that date, and it may be safely presumed that the company never
does relinquish such lands unless the value thereof is less than the
value of the scrip right that would accrue to the company by reason
of its relinquishment. In its discussion of the Violette case, supra,
the Department of the Interior said:
"The contention of the company that to hold it bound to re-
linquish in favor of such settlers would amount to an open invitation
to settle upon its unsurveyed lands with a guarantee of protection,
with a resulting cloud upon the company's title and, perhaps, a bar
to the disposal of its lands, is not without force and after a most care-
ful consideration of the entire act the Department is of opinion that
the proviso above quoted merely extends a privilege to the com-
pany to select other lands for such as it may relinquish, upon such
favorable terms as should reasonably induce the relinquishment, and
thus protect settlement made at a time when it could not be reason-
ably told whether the settler would fall upon an odd numbered or
even numbered section. In this respect the privilege is somewhat
akin to that provided for in the act of June 22, 1874, (18 Stat., 194),
only the inducement to relinquish is greater because the field of selec-
tion is greatly enlarged.”
The above quoted extract from the Department's said decision
might give rise to a thought in the minds of those who are not
friendly to the company that the Violette decision shows that it is
possible for the company to have done for itself and on its own behalf,
!
10
and to its great profit, what it seemed to fear would be done by set-
tlers and others to its great disadvantage and loss.
If there exists in the numerous cases involving the relations of
the Northern Pacific Railway Company to the public lands anything
to justify a suspicion that it would connive at fraud in order to get
rid of inferior and worthless lands in its grant (lands in some instances
not worth the amount of the taxes assessed), and to acquire in lieu
thereof scrip enabling it to obtain the more valuable of the remaining
public lands in any of the States entered by its road, then it might
reasonably be suspected that the company would not hesitate to
induce settlement upon all of the worthless lands in those portions of
the grant yet unsurveyed in order to have a basis for obtaining valu-
able scrip in lieu thereof. Assuming that there is nothing in the his-
tory of that company's relations to the public lands, or in its connec-
tion with or interest in legislation with respect thereto, to warrant
such suspicion, certainly the said act of 1898 affords so strong a
temptation and great inducement to wrong doing, with little prob-
ability of detection therein, that Congress ought to take notice of the
fact that no great pressing public necessity requires the satisfaction.
of the grant to the Northern Pacific Railway Company in the manner
provided by the said act of 1898, in a manner defeating the intent of
the Congress that enacted the granting act of 1864.
"It is not possible, *** for the railway company to secure in
any way or in any manner as valuable lands as they are relinquish-
ing.
""
These are the words, as shown hereinbefore, which were spoken
by Senator Wilson, of Washington, during the brief debate in the
Senate. The Senator was badly advised and seriously in error. The
measure has been tremendously advantageous to the company. So
advantageous has it been that the company has repeatedly endeavored
to have the Department of the Interior, by artificial and forced con-
struction, extend its provisions beyond their legitimate scope. For
instance, in Northern Pacific Railway Company vs. Peone, et al.
(35 L. D., 359), the modest claim of the company for a scrip right
under "the special and advantageous features" of the said act of 1898,
in lieu of a right of indemnity selection, was based upon the absurd
contention that lands within primary limits patented to a homesteader
on May 26, 1888, were lands in controversy between said homesteader
and the company on January 1, 1898, although the company had never
questioned, or in any manner moved against, the patent to the home-
steader. If the company really believed there was a possibility that
this contention would be sustained, the company could not have en-
tertained very great respect for the judgment of the Department. If
that contention had prevailed, the company would have become en-
titled to scrip for practically every acre of land within primary limits
patented at any time prior to January 1, 1898, to anyone except the
company. If that contention had prevailed then, indeed, would the
indemnity limits as fixed in the original legislation on behalf of the
company have been so enlarged as to be coterminous with the
boundaries of every State entered by the road. The company will
never lose anything for want of impudence, audacity and daring.
The railroad scrip authorized by this act has a quality peculiar to
itself which makes it totally unlike any other scrip of which we have
il
knowledge or of which we have ever heard. It may be used upon
certain lands despite provisions of law apparently against its use.
With respect to the former Gros Ventre Indian reservation lands
Congress expressly directed that such lands should be open to appro-
priation under the homestead, townsite, coal land, desert land and
mining laws, “but not under any other laws regulating the sale or dis-
posal of the public domain." In Northern Pacific Railway Company
(37 L. D., 408), the Department of the Interior, in reversing the Gen-
eral Land Office, held that such lands could be scripped by that com-
pany under the said act of 1898.
It may sound like the frenzied utterances of the much berated muck-
raker, but assuming the risk of being characterized as a muck-raker,
we ask when will Congress avoid mistakes? Never, because it is a
human agency, but how long will it persist in a mistake, in a serious.
mistake, after discovering it? When will the people of the nation
awake to the fact that it has not been wholly by the fraudulent prac-
tices of individuals that the government and the people have been
plundered of their public domain but that ill-advised legislation,
granting great and unwarranted privileges to a railway corporation,
has been in a large measure responsible for the loss of a heritage
which no people of any other nation ever received. Will the public
awake only after there are no public lands to protect?
The said act of 1898 is claimed by the company to be a legislative
agreement between it and the government. Whatever its legal char-
acter may be it was ill-advised and vicious legislation inimical to the
public interests, operating to the advantage and for the benefit of
the monster land corporations that have absorbed the greater part
of the more valuable areas of the public domain, and should not be
permitted to remain a statute of the United States any longer than
may be necessary to effect its repeal. It has long heretofore accom-
plished the rightful and justifiable purpose, if any, of its enactment.
The repealing act should, however, protect whatever settlement claims.
upon unsurveyed land within the grant were made in good faith prior
to the repeal and should require that all the company's enormous
holding of land scrip outstanding be located within a specified period.
•
:
12
ENLARGING NATIONAL FORESTS
WITH THE CONSENT AND TO THE PROFIT OF THE
NORTHERN PACIFIC RAILWAY COMPANY
A Departmental Decision in favor of the Company is Condemned by the Courts.
Section 3 of the act of March 2, 1899 (30 Stat., 994), provides that
in consideration for the transfer to the United States of the holdings
of the Northern Pacific Railway Company in the Mount Ranier Na-
tional Park and the Pacific Forest Reserve, the said company shall
be entitled to scrip an equal quantity of surveyed or unsurveyed lands
in any State "through which the railroad of said Northern Pacific
Railroad Company runs." This act has a close resemblance to the
generally discredited and now repealed forest lieu lands provisions
of the act of June 4, 1897, (30 Stat., 11-36), of unsavory memory.
July 25, 1899, the company executed a deed of conveyance to the
United States of such holdings and the conveyance was accepted
by the Department of the Interior on July 26, 1899. Thus there was
consummated a trade or "swap" of lands most favorable and profitable
to the railway company. So favorable was it that the company made
numerous attempts to stretch its provisions beyond their legitimate.
scope. The company made a daring but unsuccessful effort to obtain
from the Department of the Interior a decision to the effect that the
said act was intended to enable the company to obtain scrip in lieu
of lands within the secondary or indemnity limits as well as in lieu
of lands within the primary or place limits. This was an attempt to
secure, by an artificial construction of the act, a right which it never
was the intention of Congress to confer. (See Northern Pacific Rail-
way Company vs. Mann, 33 L. D., 621.)
The characteristical modesty of the company in asserting claims
under acts of Congress affecting its land grant is well illustrated in
the case entitled Brown vs. Northern Pacific Railway Company (31
L. D., 29). In that case the field notes of the survey of certain lands
scripped by the company under said act of 1899 described them as
"one immense coal field and is valuable for that article as well as its
timber, which is very fine and dense." The company insisted before
the Department of the Interior that the field notes of the survey did
not amount to a classification of the lands as mineral within the mean-
ing of the said act, and that, therefore, its scrip was applicable to such
lands. The Department did not look with favor upon this modest.
contention by the company and dismissed it saying:
"If the company's contention is sound it is authorized to search.
throughout the States into or through which its railroad runs and
select public iron and coal land only, if the same can be found in
sufficient quantity to satisfy the requirements of the act. It is not
believed that Congress intended to confer any such right upon the
company."
13
The Department's decision in Brown vs. Northern Pacific Railway
Company, supra, which was adoptive of an opinion by Mr. Willis.
Van Devanter, as Assistant Attorney General for the Department of
the Interior, should be compared with the Department's decision of
February 28, 1903, in Davenport vs. Northern Pacific Railway Com-
pany (32 L. D., 28), which was also adoptive of an opinion by Mr.
Van Devanter. Mr. Van Devanter's opinion in the Davenport case
was concurred in by the present First Assistant Attorney in the
Department of the Interior.
In the Davenport case it was alleged, under oath, that the land
scripped by the company "contains large and valuable deposits of
coal." The company's contention was that "it is wholly immaterial
what its present character may be, or whether or not the coal appli-
cants have discovered valuable mines of coal thereon." The Com-
missioner ruled against the company. On the company's appeal to
the Secretary the Commissioner was reversed and Davenport's pro-
test dismissed, Mr. Van Devanter, and the present First Assistant At-
torney and the then Secretary of the Interior, saying that the North-
ern Pacific Railway Company was entitled to a patent for coal lands
under the said act of 1899 in all cases where "the field notes and sur-
veyor's return make no notation whatever of minerals in the land."
This decision imparted to the company's scrip a quality rendering it
superior to any class of scrip that ever existed.
On the date of the decision in the Davenport case, to wit, February
28, 1903, Mr. Van Devanter resigned the office of Assistant Attorney
General for the Department of the Interior to accept an appointment
as United States circuit judge, eighth circuit, made by President
Roosevelt. He is now a Justice of the Supreme Court of the United
States under an appointment made by President Taft.
In pursuance of its decision in the Davenport case, supra, the land
department issued a patent to the Northern Pacific Railway Company
for a large area of known coal land. The Davenport case attracted
the attention of some able attorneys who seriously doubted the sound-
ness of the Department's decision. Due to the representations and
the activities of these attorneys almost exclusively the Department of
Justice sanctioned the institution of proceedings in the name of the
- United States against the railway company to effect a cancellation of
the patent. The patent was cancelled after judicial proceedings.
M
-
The Circuit Court of Appeals, ninth circuit, in Northern Pacific
Railway Company, et al., against the United States (176 Fed., 706),
rendered an opinion declaring that-
“As a matter of fact the lands so surveyed were mineral lands,
which fact was known to the railway company at the time of its
selection of them, and it was because of their known mineral value
that they were so selected."
That court expressed itself concerning the meaning of the act of
1899 by saying that—
"The lands authorized by Congress to be taken by the railway
company in lieu of lands conveyed by it to the United States must
not only have been classified by the government surveyor as non-
mineral, but must be non-mineral in fact."
The Northern Pacific Railway Company appealed from the decree
of the said Circuit Court of Appeals to the Supreme Court of the
14
United States. Notwithstanding the fact that there was on the
bench of the Supreme Court of the United States one justice, at
least, who had already expressed an opinion of the meaning of the
act of March 2, 1899, favorable to the Northern Pacific Railway Com-
pany, viz, Mr. Associate Justice Willis Van Devanter, the said
Supreme Court, on motion of counsel for the Northern Pacific Rail-
way Company, dismissed that company's appeal on February 23,
1912, (223 U. S., 746). We very much regret that the railroad com-
pany thus obviated the possibility of having the Supreme Court of
the United States express an opinion concerning the soundness of a
decision of the Department of the Interior which expressed the judg-
ment of one of the members of that court at a time when he was
Assistant Attorney General for the Department of the Interior.
The modesty of the claims of the company under this act of 1899
can be measured by the argument submitted on its behalf in the matter
entitled Northern Pacific Railway Company (40 L. D., 441). Therein.
it was contended that the said act contemplated the giving of a scrip
right to the company in lieu of the glacial fields or streams within the
limits of the company's grant, but not granted, situate in the Mt.
Ranier National Park and the Pacific Forest Reserve. The com-
pany actually insisted that it ought to be permitted to convey to the
United States something the company never had, and to receive in
consideration for the conveyance a right to timbered lands, prospective
townsites, power sites, and other of the more valuable public lands.
-
The Northern Pacific Railway Company's scrip acts of July 1,
1898, and March 2, 1899, did not increase or enlarge the number of
acres of land originally granted to the company. They simply en-
abled the company to acquire in any State in which its road was con-
structed more valuable lands than those relinquished by the company.
to settlers or reconveyed by it to the United States. If the company
did not know that the said acts would enable it to do this certainly
the company would not have consented to the modification of its
"legislative contract" by those acts. Those acts have greatly en-
riched the Northern Pacific Railway Company. They have enabled
it to get rid of lands of little, if any, value and to obtain in lieu thereof,
for itself or its grantees, the most valuable of the remaining public
lands in the Northern Pacific Railway States. Those acts have en-
abled that company to become the sole owner of the largest quantity
of land scrip ever in existence, with the possible exception of soldiers'
additional homestead rights, nearly all of which rights have now been
exercised.
Because of the fact that the scrip created by the said acts may be
located anywhere in the Northern Pacific Railway States it is not
now possible, as it was before those acts, to know with certainty the
location of the lands to which a claim by that railway company can
be lawfully asserted. The company is now a possible claimant for
any land, situate anywhere, in any of the States in which its railroad
extends. This is a situation or condition which the Congress that
made the grant to the company in 1864 intended never should arise.
That Congress intended that the company should be enabled to do a
transportation business. Later, Congress enabled it to go into the
scrip business and to pick and select from the public domain the most
valuable areas.
15
This scrip is the private property of the railway company acquired
under private acts of Congress by virtue of its "legislative contract"
with the government and there is no obligation resting upon the com-
pany to sell it. The company has the right to sell when and to whom
it desires. It has made sales frequently and in large quantities to
the Weyerhaeuser Timber. Company and other aggregations of capi-
tal with monopolistic tendencies. The Northwestern Improvement
Company, which appears to be owned by the railway company, figures
prominently in the railway company's scrip transactions. When the
scrip is sold it is located upon the public lands by the company's land
commissioner under a contract with the purchaser to convey title
when the government patent under the scrip location has issued.
(See 40 Land Decisions, 436, as to requirements governing scrip
locations.)
16
A "MORE FANCIFUL THAN REAL" CLAIM
BY THE NORTHERN PACIFIC RAILWAY COMPANY
TO MORE THAN 100,000 ACRES
A
Northern Pacific Railway Company second indemnity selections.
case illustrating how the "more fanciful than real" claim of a
railway corporation operated to prevent appropriation by
homesteaders and others of a large area of the public domain
for several years. One hundred thousand (100,000) acres
selected by the said company in apparent contempt of two care-
fully prepared decisions of the land department which charac-
terized the company's claim to the lands as "more fanciful than
real." The company's explanation of the apparent contempt
was that the land department, notwithstanding two decisions
rendered by it against the company, had licensed the company
to continue, thereafter, the filing of claims twice and finally de-
nounced by the department as "more fanciful than real."
court decision worthy of studious notice.
A
In
vs. Northern Pacific Railway Company, decided by the De-
partment of the Interior on July 3, 1913, more than four years after
the case was at issue, the undisputed facts presented in the case.
were-
FIRST That on January 23, 1909, the Department of the Interior
by its decision in Bradley vs. Northern Pacific Railway Company (37
L. D., 410), adhered to its decision of July 10th, 1907, in the same case,
to the effect that the Northern Pacific Railway Company's claim of
right to take indemnity from the former Gros Ventre Indian Reserva-
tion in Montana was "more fanciful than real."
SECOND-That after the first decision in the said case and before
rendition of the second decision therein and on June 29, 1908, the land
department inadvertently issued a patent to the said company for
3,591.86 acres of the very same lands with respect to which the com-
pany's claim had been dismissed because "more fanciful than real."
THIRD-That on being requested by the Land Department to
surrender such inadvertently issued patent for cancellation the rail-
road company refused to make surrender and indicated that it would
not restore the land to the United States unless compelled to do so as
a result of judicial proceedings instituted by the United States to
cancel such patent.
The confessed purpose of the company in refusing to deliver the
patent for cancellation was that it desired the United States to insti-
tute a suit in equity under which it would be possible to have the
courts consider the question raised by the company as to the sound-
ness of the Department's two carefully prepared decisions in the
Bradley case, supra.
17
FOURTH—That the company, with knowledge of the said two
departmental decisions of July 10, 1907, and of January 23, 1909, in
Bradley vs. Northern Pacific Railway Company, supra, and in ap-
parent disregard thereof, and while in possession of the said in-
advertently issued patent did, thereafter, and on May 3, 1909, file
four separate indemnity selection lists covering over 100,000 acres of
lands within the former Gros Ventre Indian reservation with re-
spect to which lands the Department of the Interior had twice de-
clared that the company's claim was "more fanciful than real.”
FIFTH-That the United States did institute suit against said rail-
way company with view to cancellation of said inadvertently issued
patent and did, on the advice of the First Assistant Attorney, and
because "the attorneys for the railroad company have requested," and
without notice to settlers and applicants claiming adversely to the
company, direct that no further action should be taken upon the selec-
tions filed by the company on May 3, 1909, or upon filings in con-
flict therewith, until such time as the government's suit against the
company had been finally determined.
SIXTH-That the suit by the United States against the said com-
pany was finally determined when, on April 19, 1912, an assistant
attorney general advised the Department of the Interior that no
appeal would be taken from the decree against the United States.
entered in such suit on August 28, 1911, by the United States Circuit
Court, District of Montana.
SEVENTH-That the said court's decision was to the effect that
the act of March 3, 1911, (36 Stat., 1080), which provided with re-
spect to said former Indian reservation lands "that no patent shall
be denied to entries heretofore made in good faith under any of the
laws regulating entry, sale, or disposal of public lands," et cetra,
validated as of the date of the said act the patent which had been in-
advertently issued to the railway company. This was, in effect, a
ruling by the court that a patent is an entry. It was further said by
-
the court:
"So that, if it were to be held that the amendment did not cure
the alleged defects of defendants' title to the lands in question, the
effect of such holding would simply be to require the defendant rail-
way company to do over again what it did once before; that is, again
file in the local land office its selection of the lands which were pat-
ented to it upon the selections made in 1908. A construction which
would deny to the amended statute any curative effect as regards
selections made and approved prior to its enactment, when, at the
same time, the right to acquire the lands thereafter by the very means
of such identical selection is unmistakably conferred, thus imposing a
burden which it does not seem reasonable to assume as having been
intended by the law-making body, should obviously not be adopted,
unless the words of the statute clearly demand it."
EIGHTH-That it was contended by the company on the appeal
to the Secretary that the said act of March 3, 1911, validated the un-
approved indemnity selections which were filed by the company on
May 3, 1909, in apparent contempt of the department's two decisions in
the Bradley case, supra, and that such had been the announcement
and ruling of the said Circuit Court for the district of Montana. This
contention on behalf of the company was opposed by the contention
18
that if the court had made such an announcement it had only indulged
in obiter dicta of the most offensive sort, and that unapproved rail-
way indemnity selections are not entries and that even if they were
entries they were not "entries heretofore made in good faith" for the
reason that they were selections filed in contempt of two rulings of
the land department against the company's claimed right to select.
The court's ruling to the effect that a patent is an entry is at variance
with the ruling of the Department of the Interior in Alice M. Reason.
36 L. D., 279, decided February 21, 1908, wherein it was said:
"When the contract is consummated by a patent the entry no longer
exists, for the contract, or entry, is satisfied or discharged. There is
no longer a subsisting entry."
It will be observed that this decision by the Department of the
Interior antedates the court decision to which we are referring.
Whether the Department's decision in the Reason case, supra, was
brought to the court's attention in argument on behalf of the United
States we do not know, but we do know that on April 21st, 1912, in
the case entitled Sarah V. White, 40 L. D., 630, the Department of
the Interior reiterated its ruling in the Reason case, supra, saying,
quoting from the syllabus of the White case:
"By the issue of patent for the land embraced in an entry the entry
becomes merged in the patent and is thereafter non-existent.
""
The objection that the court said it perceived to the entering of a
decree cancelling the patent which was inadvertently issued to the
Northern Pacific Railway Company was similar in character to the
objections urged in argument on behalf of the Germania Iron Com-
pany on that company's appeal to the Supreme Court of the United
States from a decree cancelling a patent inadvertently issued to that
company. See Germania Iron Company vs. United States, 165 U. S.,
379. In the case just cited counsel for the Germania Iron Company
are reported as having argued as follows:
"That a vendor cannot ask the aid of a court of equity to avoid his
deed on the mere ground of irregularity on the part of his agents unless
he also shows that the grantee in such deed was not equitably entitled
to the conveyance; that courts never attempt to do a useless thing,
and that it would be idle to enter a decree cancelling a patent, when
for aught that appears it would be the duty of the government, after
some formal proceedings and compliance with certain regulations, to
reissue to the patentee a patent for the same lands. In other words,
their contention is that this whole litigation is merely a dispute about
form and order of proceeding, and not about substantial rights."
In the Germania Iron Company case, the court was not very favor-
ably impressed by the argument on behalf of that company and had
this to say concerning the statement by counsel for said company that
if a decree of cancellation of the patent were entered it would be only
a vain and useless thing, because upon compliance with certain regu-
lations the Department of the Interior would probably be obliged to
reissue a patent for the same land. The court said:
"By inadvertence and mistake a patent in this case has been issued,
and the effect of such issue is to transfer the legal title and remove
from the jurisdiction of the land department the inquiry into and con-
sideration of such disputed questions of fact.
19
"The contention of the appellants is substantially that the courts
must consider and determine those disputed questions of fact and
exercise a jurisdiction not committed to them, before they restore to
the land department the jurisdiction of which it has been wrongfully
deprived. But why should the courts be called upon to consider
and determine questions of fact, and after a determination adversely
to the patentee relegate the matter for re-examination and determina-
tion in the land department? Is not the duty of the court fully per-
formed when it ascertains that through such inadvertence and mis-
take the department which has jurisdiction over such matters has
been deprived thereof? It restores to such department its lost juris-
diction and leaves to the tribunal designated by Congress the full
power to discharge the duties conferred upon it. *** It and not a
court of equity is the tribunal entrusted by the law with jurisdiction
over such matters, and the latter may not inquire what ought to have
been the determination of the former, but whether it has been wrong-
fully deprived of the power to make such determination."
In our judgment the opinion of the United States Circuit Court for
the District of Montana in the suit instituted by the United States.
to cancel the patent inadvertently issued to the Northern Pacific Rail-
way Company was unsound in principle, and contrary to precedent.
Why it was that the United States did not take an appeal therefrom
is unknown to us. We believe that an appeal should have been taken
and we further believe that a reversal could have been obtained upon
the single ground that the decision of the Supreme Court of the United
States in the Germania Iron Company case, supra, laid down the rule,
a rule binding upon all inferior Federal courts, that in any case in-
volving patents inadvertently issued by the United States the sole
duty of the court is to decree cancellation when "it ascertains that
through such inadvertence and mistake the department which has
jurisdiction over such matters has been deprived thereof," without
inquiry as to any other matter or thing presented in the case.
The opinion of the Circuit Court for the District of Montana in the
suit by the United States against the Northern Pacific Railway Com-
pany was filed August 28, 1911, but was not reported and published in
the Federal Reporter series until after the omission of the opinion
from those reports was called to the attention of the publishers by
the writer. Why it was not given out for publication theretofore is
unknown to us. For the opinion see 204, Federal Reporter, 485,
advance sheets thereof issued June 19, 1913. The judge who ren-
dered the decision appears to have been appointed to the bench on or
about May 27th, 1910. It was on February 2, 1910, that the Depart-
ment of the Interior recommended to the Attorney General that suit
be instituted against the railway company to cancel the inadvertently
issued patent. This judge resigned from the bench on or about
October 5, 1911, less than two months after he rendered the decision
aforesaid. He is now, so the writer is informed, of counsel for the
Northern Pacific Railway Company. Furthermore, he appears to
have been the same person who, as an attorney at law, on October 30,
1908, appeared as counsel on behalf of Reuben Bradley (37 L. D.,
410), before the land department and who submitted a masterly brief
exposing the "more fanciful than real" claim of the railway company
and concluding as follows,
20
"From this it is clear that the railway company is not entitled to
select the land involved in this case, and its motion for review of the
Honorable Secretary's decision heretofore rendered herein, should be
denied."
#
In its decision of July 3, 1913, the Department of the Interior ruled
that those selections by the company which were filed May 3, 1909,
had no effect as against any conflicting filing by an individual made
· prior to the said act of March 3, 1911. The said decision leaves un-
determined the question whether the said act of March 3, 1911, either
in express terms or by implication, validated as of that date, or at all,
the selections which were filed by the company on May 3, 1909, in
apparent contempt of the Departments' two decisions in the Bradley
case, supra.
The said decision is justly criticisable for the reason that it con-
curred in the judgment of the United States Circuit Court for the
District of Montana to the effect that a patented indemnity selection.
is an entry. In thus concurring the Department virtually receded from
the position it took in the Alice M. Reason and Sarah V. White cases,
alluded to hereinbefore, wherein it was expressly held that an entry
becomes non-existent after the issue of a patent thereunder.
We await a decision by the Department of the Interior on the
question whether bona fide conflicting filings made by individuals
subsequent to March 3, 1911, are invalid (as against the claims of
the company under its selections) because of the provisions of the act
of Congress of that date.
We will be deeply interested in knowing whether it is possible for
any benefits whatever to ensue from an act committed by a railway
company, or any public land claimant, in apparent contempt of law,
adjudications and the Department of the Interior.
As the company has never said or done anything looking to a
purging of the apparent contempt committed by it we must assume
that the company and its selections of May 3, 1909, are still in con-
tempt unless there exists a valid reason for ruling that there was a
purging of the contempt by the said act of Congress. We hardly
think that the Department of the Interior will conclude that there is
a reason for such a ruling.
21
EXPERIENCE OF AN IDAHO HOMESTEADER
WITH A NORTHERN PACIFIC RAILWAY COMPANY
SCRIP LOCATION
A SETTLEMENT CLAIM TWELVE YEARS OLD
Undetermined After Eight Years of Litigation in the Land Department with the
Northern Pacific Railway Company.
Patent inadvertently issued to company during progress of contest
between it and homesteader accepted and held by company
without notice to heirs of the homesteader who continue prose-
cution of the contest in ignorance of abatement thereof by rea-
son of issue of the patent.
In the heirs of
deceased homestead settler, against the
Northern Pacific Railway Company, the decedent made settlement
on June 15, 1901, when the land was unsurveyed. June 21, 1901,
the lands still being unsurveyed, the company located it by filing
scrip in the office of the register and receiver. The homesteader had
no notice of this scrip filing until August 16, 1905, after the land was
surveyed, when his homestead application was rejected because of
alleged conflict with the company's scrip. The company gave no
notice of the scrip location either by posting or establishing cor-
ners on the land. On rejection of his homestead application the
settler promptly appealed and on April 16, 1909, (three years and
seven months after the appeal was filed) the General Land Office
accorded him a right to be heard as against the scrip. Although the
homesteader's application contained a sworn statement by him, cor-
roborated by two witnesses, that he had settled upon the land prior
to the filing of the company's scrip, which sworn statement never has
been formally denied by the company, the homesteader was, never-
theless, made party plaintiff in the proceeding and had imposed upon
him the burden of proof. Thereafter the settler's heirs gave notice.
of his death and on October 26, 1910, the register and receiver set the
case for trial on March 8, 1911, about six years after rejection of the
homesteader's application and about two years after the General Land
Office had accorded the homesteader a right to be heard.
>
At the trial a lumber company filed petition to interevene alleging
that it had acquired, by purchase, the railway company's alleged title
under the scrip location. At the close of the taking of testimony the
lumber company moved for a continuance of the hearing and the
register and receiver granted a continuance to April 8, 1911. March
11, 1911, the settler's heirs appealed to the Commissioner from the
order granting the continuance.
On March 27, 1911, when the case was in the testimony taking
stage of proceedings theretofore authorized by the General Land
Office to determine the merits of the conflicting claims to the land, the
General Land Office formally executed a patent (No. 186391, Clear List,
22
76) to the Northern Pacific Railway Company of the land then in con-
troversy between the homesteader's heirs and that company and de-
livered such patent on March 29, 1911, to resident counsel at Wash-
ington for that company. After so doing the General Land Office
proceeded to act on the heirs' said appeal apparently in ignorance of
the fact that it had theretofore, by its own act, divested itself of juris-
diction over the land for any purpose whatsoever.
On October 9, 1911, the General Land Office, after it had issued a
patent to the company, dismissed the said appeal and returned the
papers in the case to the register and receiver, saying-
"Said appeal is hereby dismissed, and the case remanded and you
will permit the taking of the depositions in accordance with the Rules.
of Practice."
March 21, 1912, a year after the said patent had issued and
five months after the General Land Office had dismissed plaintiff's
appeal as aforesaid, the register and receiver issued an "order for
hearing" which concludes as follows:
"It is therefore hereby ordered that each of the above parties
appear, and respond and offer evidence in support of their respective
claims, at a hearing to be held at 10 o'clock A. M., on the 27th day of
May, 1912, before the register and receiver in the United States Land
Office at Coeur d'Alene, Idaho."
On May 27, 1912, to which date the taking of testimony was con-
tinued on the motion and at the urgent request of the intervening lum-
ber company, counsel for the intervenor stated "that it has no testi-
mony to offer at this time and for these reasons," viz., (a) that one of
the three alleged witnesses is seriously ill and totally blind and is in
Arkansas and is in an unfit condition "to either be brought here as a
witness, or used by way of deposition;" (b) that another of the
alleged witnesses "left no address and we have been absolutely unable
to track him, cannot find him;" (c) that with respect to the third one
of the alleged witnesses "his information on the subject is not of
sufficient importance to warrant his being brought here or taking his.
deposition.
رر
P
July 6, 1912, the register and receiver formally rendered their joint
decision, the concluding paragraph of which is as follows:
"We therefore recommend that said homestead application
be rejected as to the
and that Northern Pacific Railway Co.,
List 61, be approved to that extent.
"}
The said list had long theretofore been not only approved "to that
extent," but also patented "to that extent."
Query: Were the register and receiver in ignorance of the issue of
the patent when they rendered their decision and recommended that
something be done in the future which they are charged with notice of
wing had been done in the past? Were they not, in accordance
he usual practice, formally and duly notified of the issue of the
March 29, 1911?

e the officers and attorneys of the lumber company
of the patent? If so, did their knowledge of
whatever to do with the fact that it
e," to wit, May 27, 1912? Who
1011 at pore 472 of

Book 41 of the records of the office of the Recorder of Deeds for
Shoshone County, Idaho?
April 8, 1913, the heirs of the homesteader retained the writer to
represent them on the appeal to the Commissioner from the local
officer's decision of July 6, 1912. Not until after the writer had made
an examination of the records at Washington were the heirs informed
of the issue of patent to the company on March 27, 1911. For more
than two years they had been unknowingly engaged in mimic litiga-
tion, in a mock trial, before a department of the government which
was without jurisdiction of the land because of inadvertent issue of
patent therefor to the railway company on March 27, 1911. The
writer probably never would have heard of the inadvertently issued
patent if he had not theretofore been informed of the inadvertent issue
of patents to the Northern Pacific Railway Company in other cases,
especially in connection with the case referred to elsewhere in this
pamphlet wherein a patent for 3,591.86 acres had been inadvertently
issued to that company. The writer has concluded that it is always
advisable before briefing any case between the Northern Pacific Rail-
way Company and a settler to learn the precise status of the land
involved.
Inadvertently issued land patents have been the subject of many
decisions by the Supreme Court of the United States.
In Hughes vs. United States, 4 Wall., 232, the court said:
"Relief, when deeds or other instruments are executed by mistake
or inadvertence of agents, as well as upon false suggestions, is a
common head of equity jurisdiction." (See also Williams vs. United
States, 138 U. S., 514; Germania Iron Co. vs. United States, 165, U. S.,
379.)
April 17, 1913, the writer filed in the General Land Office a formal
suggestion that the Northern Pacific Railway Company and its trans-
feree be requested by the General Land Office to voluntarily surrender
the inadvertently issued patent, for cancellation. One of the stated
reasons for this suggestion was that-
"Neither the General Land Office nor the Secretary of the Interior
has either jurisdiction over or power with respect to the land con-
cerning which the above entitled proceeding was initiated while the
legal title thereto is outstanding in the Northern Pacific Railway Com-
pany or its transferees or grantees."
September 19, 1913, the Commissioner of the General Land Office,
in a letter to counsel for the Northern Pacific Railway Company,
made a direct and emphatic "demand for reconveyance," saying:
"The result of this mistake has been that this office is divested of
its jurisdiction over the subject of the controversy and may not fur-
ther proceed in the determination of that controversy with any assur-
ance that it will be competent to enforce whatever judgment might
hereafter be rendered.
"The company's attention and response to this request at the earl
date consistent with due consideration of the matter is res
requested."
Up to the time of going to press no action by the
taken, of which we have any notice.

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