University of California Berkeley 
 
The Lands Granted to and Withdrawn 
 
 FOR THE BENEFIT OF THE 
 
 SOUTHERN PACIFIC RAILROAD COMPANY 
 
 OF CALIFORNIA. 
 
 HENRY BEARD, 
 
 Attorney for the Southern Pacific R. R. Co. 
 
 ,of California. 
 
 JUDD & DETWEILER, PRINTERS. 
 
The Lands Granted to and Withdrawn 
 
 FOR THE BENEFIT OF THE 
 
 SOUTHERN PACIFIC RAILROAD COMPANY 
 
 OF CALIFORNIA. 
 
 WASHINGTON, D. C., February, 1887. 
 
 Hon. W. A. J. SPARKS, 
 
 Commissioner of the General Land Office. 
 
 SIR : I have the honor to acknowledge the receipt of your 
 letter of the 21st of December, 1886, as follows: 
 
 "DEPARTMENT OF THE INTERIOR, 
 
 " GENERAL LAND OFFICE, 
 "WASHINGTON, D. C., Dec. 21*$, 1886. 
 "HENRY BEARD, Esq., 
 
 "Attorney for Southern Pacific Railroad Company, 
 " Washington, D. C. 
 
 "SiR: By act of Congress approved July 6, 1886 (Pam- 
 phlet laws, p. 123), all the lands granted to the Atlantic and 
 Pacific Railroad Company by act of July 27, 1866 (14 Stat., 
 292), with certain exceptions named, 'which are adjacent to 
 and coterminous with the uncompleted portions of the main 
 line of said road,' were declared forfeited and restored to the 
 public domain. 
 
 "The limits of the forfeited grant in the State of California 
 are intersected by those of the grant to the Southern Pacific 
 Railroad Company by acts of July 27, 1866 (14 Stat., 292), 
 and March 3, 1871 (16 Stat., 573). The lands within the 
 
conflicting or intersecting limits may be divided into six 
 classes, as follows : 
 
 "1. Those within the common granted limits of the 
 Atlantic and Pacific and the main line of the Southern 
 Pacific. 
 
 "2. Those within the granted limits of the main line of 
 the Southern Pacific and the indemnity limits of the At- 
 lantic and Pacific. 
 
 "3. Those within the granted limits of the Atlantic and 
 Pacific and the indemnity limits of the main and branch 
 lines of the Southern Pacific, 
 
 "4. Those within the common indemnity limits of both 
 roads, and also those within the common indemnity limits 
 of the Atlantic and Pacific and the branch line of the 
 Southern Pacific. 
 
 "5. Those within the common granted limits of the At- 
 lantic and Pacific and the Southern Pacific branch line. 
 
 "6. Those within the indemnity limits of the Atlantic 
 and Pacific and the granted limits of the branch line of the 
 Southern Pacific. 
 
 "In submitting to the Secretary of the Interior certain 
 recommendations respecting the restoration of the forfeited 
 lands, this office suggested that the restoration of the land? 
 within the intersecting limits be deferred for the present, and 
 that the Southern Pacific Railroad Company be allowed an 
 opportunity to show cause why such lands should not be 
 restored. 
 
 " By letter dated the 10th inst., the Hon. Secretary ap- 
 proved this recommendation as being the wisest course in 
 view of the complications, but directed that prompt action 
 in the matter be taken, so that the forfeited lands could be 
 opened to the public at the earliest possible day. 
 
 " You will, therefore, be allowed a reasonable period within 
 which to show cause, if any exists, why the lands embraced 
 in said classes, or any of them, should not be restored. 
 
 " It is requested that this matter receive your early atten- 
 tion, as it is desirable that the questions involved be deter- 
 mined at the earliest day possible. 
 
 " Very respectfully, 
 
 " W. A. J. SPARKS, 
 
 " Commissioner" 
 
 125958 
 
I take occasion to express my high appreciation of your 
 sense of proprietyand justice, in calling upon me to submit 
 the views of the Southern Pacific Railroad Company of Cali- 
 fornia as to its rights and interests in the lands in California 
 that were withdrawn for its benefit before any attempt was 
 made to locate a contemplated line for the Atlantic and 
 Pacific Railroad Company through that State. 
 
 We have confidence that what we submit in the following 
 pages will receive the careful consideration of yourself and 
 the Honorable Secretary of the Interior. 
 
 You have recognized the great importance to our com- 
 pany of any action of your office that might disturb the 
 status of the lands that have been withdrawn for our bene- 
 fit. 
 
 The fact stated by you, that the limits of the Atlantic and 
 Pacific road in California were located so that its withdrawal 
 limits in many places overlapped or clashed with the pre- 
 vious withdrawals for the benefit of our Southern Pacific 
 road, was well known to Congress and the country when the 
 forfeiture act was passed ; likewise the fact that the Atlantic 
 and Pacific Company had done nothing further toward 
 building a road in California; also that the Southern Pacific 
 Railroad Company had fully completed its road under its 
 grant of 1871, and also all, excepting some 80 miles, of its 
 main line under the act of 1866 and the joint resolution of 
 1870. It must be assumed also that Congress knew that 
 prior withdrawals for our company were made in the public 
 lands without any reference whatever to the future route of 
 the Atlantic and Pacific road, and that the withdrawals for 
 the latter road contained no references whatever to those 
 previously made for the Southern Pacifio Company of Cali- 
 fornia. 
 
It must be assumed that Congress knew that the main 
 line of the Southern Pacific railroad of California was 
 located January 3, 1867, and the withdrawals ordered by 
 the Secretary of the Interior March 19, 1867; that the line 
 of route for the same company's branch line was located 
 April 3, 1871, and a withdrawal was ordered by the Secre- 
 tary on the same day, and that the orders were duly issued 
 to and received by the local land officers ; and also that the 
 locations for the Atlantic and Pacific road were made and 
 accepted by the Secretary of the Interior April 11, 1872, and 
 April 16, 1874, upon which the withdrawals were made for 
 that company. 
 
 The diagram made in your office shows that the line of 
 the Atlantic and Pacific location is almost coincident with 
 that of the Southern Pacific main line for nearly two hun- 
 dred miles westward from the crossing of the Colorado river, 
 and crosses the branch line of the Southern Pacific Company 
 about 30 miles north of Los Angeles, which is there upon a 
 north and south course, whilst the Atlantic and Pacific line 
 is an east and west course in that locality, showing a body 
 of land about 40 miles square common to the primary limits 
 of both roads. With these conflicts of the primary limits, 
 extensive conflicts of the secondary limits are also exhibited. 
 
 It must be assumed that all these facts, which for ten years 
 had been shown upon the official maps and plats of the 
 United States surveys in California, were fulty known to 
 Congress when the act declaring the forfeiture was passed. 
 
 (For copies of withdrawal orders for the Southern Pacific 
 Railroad in California, see Appendix, Nos. 3 and 5.) 
 
 It appears from the records of your office that, on the 15th 
 of December last, in accordance with a letter addressed to 
 
you by the Secretary of the Interior, you issued to the 
 register and receiver at Los Angeles, California, the follow- 
 ing instructions, and on the same day similar instructions 
 to the United States land officers at San Francisco, Cali- 
 fornia, and Sante Fe, New Mexico. 
 
 "DEPARTMENT OF THE INTERIOR, 
 
 " GENERAL LAND OFFICE, 
 " WASHINGTON, D. C., December 15th, 1886. 
 
 u Register and Receiver, Los Angeles, Cal. 
 
 " GENTLEMEN : The act of July 6, 1886, (Chap. 637, pamph- 
 let copy, p. 123) provides that all the lands, with certain 
 exceptions named, heretofore granted to the Atlantic and 
 Pacific Railroad Company, ' which are adjacent to and 
 coterminous with the uncompleted portions of the main 
 line of said road, * * * be, and the same are hereby 
 declared, forfeited and restored to the public domain/ 
 
 " You are hereby instructed under said act, and in com- 
 pliance with instructions received by this office from the 
 Hon. Secretary of the Interior, dated Dec. 10th, inst, to 
 cause to be published in a newspaper having a general cir- 
 culation in your district, for a period of thirty days, a notice 
 that the odd-numbered sections of land heretofore withdrawn 
 for said grant, in California, except those within the limits of 
 the withdrawals for the benefit of the Southern Pacific Rail- 
 road Company's main and branch lines (the restoration of 
 which is, for the present, suspended) have been restored, and 
 that the books of your office are now open for the entry of said 
 lands under the pre-emption, homestead, and other laws re- 
 lating to unoffered lands; that the price of even-numbered 
 sections within the 20-mile primary limits of the withdrawal 
 for said Atlantic and Pacific Railroad Company will remain 
 at $2.50 per acre, and that the restored odd-numbered sec- 
 tions within said limits will be rated at the same price. 
 
 " A copy of the paper containing this notice should be 
 promptly forwarded for the information of this office. 
 
 ;< The receiver, as disbursing officer, will pay the cost of 
 publication, and forward a copy of the notice with proof of 
 publication, as his voucher for the disbursement. 
 " Very respectfullv, 
 
 " W. A. J. SPARKS, 
 
 " Commissioner." 
 
THE PRACTICAL AND IMPORTANT QUESTION, 
 
 which covers all the present ground of executive action, is 
 this: 
 
 Does this new law this forfeiture act call for any further 
 restoration of lands than has already been ordered ? 
 
 This is the main question of present moment, in which 
 the Southern Pacific Railroad Company of California is very 
 largely interested, but it has no interest in lands within the 
 Atlantic and Pacific limits that have never been withdrawn 
 for the Southern Pacific grants. 
 
 The Southern Pacific Railroad Company of California 
 claims that the lands withdrawn for its benefit cannot now be 
 restored to market for the following reasons : 
 
 1. The forfeiture act referred to does not sanction it. 
 
 2. The Executive Department has not now the legal au- 
 thority to restore them. 
 
 3. On consideration of the law and facts in the case, it 
 appears that the Southern Pacific Railroad Company was 
 entitled to patents for all the lands of its grant opposite 
 road completed when the forfeiture law was passed, and be- 
 yond this there are good and sufficient reasons why the 
 rights and claims of the Southern Pacific Railroad Company 
 should not be disturbed or called in question by any order 
 for the restoration of lands. 
 
I. 
 
 The action already taken is all that is required by the said 
 act of July 6, 1886. 
 
 That act is as follows : 
 
 AN ACT to forfeit the lands granted to the Atlantic and Pacific Railroad 
 Company to aid in the construction of a railroad and a telegraph line 
 from -the States of Missouri and Arkansas to the Pacific coast, and to 
 restore the same to settlement, and for other purposes. 
 
 Be it enacted by the Senate and House of Representatives of 
 the United States of America in Congress assembled, That all 
 the lands, excepting the right of way and the right, power, 
 and authority given to said corporation to take from the 
 public lands adjacent to the line of said road material of 
 earth, stone, timber, and so forth, for the construction there- 
 of, including all necessary grounds for station buildings, 
 workshops, depots, machine-shops, switches, side tracks, 
 turn-tables, and water stations heretofore granted to the At- 
 lantic and Pacific Railroad Company by an act entitled "An 
 act granting lands to aid in the construction of a railroad 
 and telegraph line from the States of Missouri and Arkansas 
 to the Pacific coast," approved July twenty-seventh, eighteen 
 hundred and sixty-six, arid subsequent acts and joint reso- 
 lutions of Congress, which are adjacent to and coterminous 
 with the uncompleted portions of the main line of said road 
 embraced within both the granted and indemnity limits, as 
 contemplated to be constructed under and by the provisions 
 of the said act of July twenty-seventh, eighteen hundred 
 and sixty-six, and acts and joint resolutions subsequent 
 thereto and relating to the construction of said road and tel- 
 egraph, be, and the same are hereby, declared forfeited and 
 restored to the public domain. 
 
 Approved July 6, 1886. 
 
 On careful consideration of this act it will be noticed that 
 it speaks of a main line of railroad " contemplated to be con- 
 structed " by the Atlantic and Pacific Company under the 
 former act of Congress. It declares a forfeiture of lands 
 
8 
 
 against said company which had been granted to aid in 
 construction of the contemplated road, but the forfeiture is 
 only of lands " adjacent to and coterminous with the uncom- 
 pleted portions of the main line of said road" As to the lands 
 adjacent to and coterminous with the completed portions of the 
 said road it is clearly implied, from the positive terms of the 
 enactment, that Congress does not intend a forfeiture of 
 them, and does not intend to diminish the grant or to un- 
 settle its hold upon lands adjacent to completed portions of 
 that road, although that company (as was well known to 
 Congress) had not fulfilled all the provisions of the original 
 grant within the times therein limited. 
 
 We conclude that Congress intends no penalty whatever 
 against completed road in the hands of the Atlantic and Pa- 
 cific, or those of any other company. Inasmuch as the 
 Atlantic and Pacific Company is to have the whole quan- 
 tity of its grant opposite the completed portions of its road, 
 it follows that the same liberal intention applies to any 
 grants that may have been made by the same law to an- 
 other company which has completed its road. Its grant 
 stands unaffected. Should the Atlantic and Pacific railroad 
 build a road hereafter upon the now uncompleted portions 
 of its line, it cannot have the aid of the land grants made 
 in 1866, but now declared forfeited, because of its failure to 
 comply heretofore with the terms of the said grant of July 
 27, 1866. 
 
 We respectfully call attention to the views of the Hon. 
 Secretary of the Interior in his letter to you of the 10th of 
 December last, hereinbefore mentioned. 
 
 He noticed the fact that the " price of the even sections " 
 along the Atlantic and Pacific route was " raised by the 
 
9 
 
 " act of Congress (of 1866) and must remain as fixed thereby 
 " unless some like authority be shown requiring or empow- 
 " ering their reduction. This reduction, or authority to 
 " reduce, is not found in the forfeiture act of July 6, 1886." 
 
 He held that "the act of 1866 is yet in force" in this re- 
 spect. 
 
 The principle of the Secretary's decision is fundamentally 
 sound. The forfeiture act has not repealed or modified the 
 original law, except in the paragraph declaring the forfeit- 
 ure, and that said forfeited lands "be restored to the public 
 domain." The forfeiture act had no concealed power or 
 intent unknown to the common reader. It was not a mine 
 of death and destruction to unnamed railroad enterprises. 
 
 As all the facts existing July 6, 1886, are necessarily sup- 
 posed to have been known to Congress, [the fact that the 
 Southern Pacific lands had been withdrawn before, and 
 without any reference to the filing of the map of the Atlan- 
 tic and Pacific road, and that the Atlantic and Pacific with- 
 drawals had been ordered without regard to those for the 
 benefit of the Southern Pacific Company,] it is plain that, as 
 there is no mention of the Southern Pacific lands in the 
 forfeiture act, there was no intention to change or vacate 
 the first withdrawals for the benefit of our company, or to 
 have any question raised as to their validity and integrity. 
 They were to stand ; and the subsequent withdrawals for 
 the other company were alone wiped out. 
 
 It will not escape the notice of those who carefully exam- 
 ine this forfeiture act that its fair intendment is not to dis- 
 turb the Southern Pacific grants. 
 
 It provides that all the lands granted by the act of July 
 27, 1866, to said Atlantic and Pacific Railroad Company, 
 2 
 
10 
 
 " which are adjacent to and coterminous with the uncom- 
 pleted portions of the main line of said road" are declared 
 forfeited. These words limit the forfeiture to the main line 
 of that road; hence it is not intended that they shall extend 
 to the branch roads. 
 
 Now, the Southern Pacific in California is one of the branch 
 roads to the Atlantic and Pacific road that is provided for in 
 said act of July 27, 1866. Section 18 of said law provided 
 that our road should connect with the Atlantic and Pacific 
 so as to form a railroad line to San Francisco, and for " aid 
 in the construction thereof" that is, the branch to San 
 Francisco, " shall have similar grants of land." 
 
 Congress, by confining the forfeiture to the main lijie, prac- 
 tically provides that it shall not extend to a branch, and the 
 Southern Pacific railroad is clearly intended to be protected, 
 for it is a branch road, provided for in said act of 1866 
 making the grant to the Atlantic and Pacific Company. 
 
 There is nothing in the forfeiture act to repeal, modify, 
 or alter the terms of prior laws on this subject. Where they 
 have taken effect, that effect is not in the slightest degree 
 disturbed. 
 
 The original grant reserved the right of Congress, for 
 specified objects, to alter, amend, or repeal that act. In all 
 the modifications thereof made by Congress from that day 
 to this, which are intended to apply to the Southern Pacific 
 Railroad Company, Congress has not, either from delicacy, 
 fear, or superstition, abstained from uttering the name of 
 our company. 
 
 15 Stat., p. 79 ; 15 Stat., p. 187 ; 16 Stat., p. 382 ; see 
 Appendix. 
 
11 
 
 If the act of July 6, 1886, had been intended in any man- 
 ner to affect the rights or status of our company, it would 
 not have omitted to mention its name and fate. 
 
 The general intention of the laws of grant is, to give the 
 quantity of a full grant of lands opposite each section of 
 completed road, and this intention is maintained by the for- 
 feiture act, the effect of which is limited to uncompleted 
 portions of road. 
 
 All that our company demands is a full subsidy in lands, 
 and the legislative denial of subsidy in money emphasizes 
 the legislative intention of a full subsidy in land. 
 
 This intention is likewise emphasized by the unusual pro- 
 vision in the grant (section 3) that "in lieu" of mineral 
 lands (not coal or iron) within the limits of the grant, " a 
 like quantity of unoccupied and unappropriated agricultural 
 lands in odd-numbered sections nearest to the line of said 
 road, and within twenty miles thereof, may be selected as 
 above provided," viz., under the direction of the Secretary 
 of the Interior. 
 
 Neither is there any provision in the act of 1886 that the 
 Southern Pacific Railroad Company should lose any land 
 by reason of the failure of the Atlantic and Pacific Company 
 to build any part of its road. 
 
 The legal effect of the declared forfeiture is, therefore, to 
 deprive the Atlantic and Pacific Company of the heretofore 
 existing right to acquire any lands opposite to the uncom- 
 pleted portion of that road, and it has no further effect. 
 
 The suggestion that, the main line of the Southern Pacific 
 road could not be located until that of the Atlantic and 
 Pacific was fixed, can find no place under the act of 1866, 
 much less after the confirmation by Congress in 1870 of the 
 
12 
 
 route that had been located in 1867. The fact is, that the 
 two railroads have been so located and constructed that 
 they do meet and connect at the point designated by law. 
 
 We claim, therefore, that after the fact has been legally 
 established that the Atlantic and Pacific Company can never 
 acquire right to any lands in California, the grants to the 
 Southern Pacific Company must be administered as though 
 the Atlantic and Pacific road had never been located through 
 that State, and the declaration that the forfeited lands are 
 restored to the public domain does not apply to any tracts 
 within the limits of the Southern Pacific grants and the 
 withdrawals for its use. 
 
 II. 
 
 We come now to the proposition that the Secretary of the In- 
 terior has not legal authority to restore to market any of the 
 lands withdrawn for the benefit of the Southern Pacific railroads 
 of California. 
 
 The grants to the Southern Pacific Railroad Company of 
 California are by section 18 of the act of Congress of July 
 27, 1866, and the 23d section of the act of March 3, 1871. 
 
 The acts referred to are as follows : 
 
 (Act of July 27th, 1866.) 
 
 " SEC. 18. And be it further enacted, That the Southern Pa- 
 " cific railroad, a company incorporated under the laws of 
 <k the State of California, is hereby authorized to connect 
 " with the said Atlantic and Pacific railroad, formed under 
 " this act, at such point near the boundary line of the State 
 " of California as they shall deem most suitable for a rail- 
 " road line to San Francisco, and shall have a uniform guage 
 " and rate of fare or freight with said road ; and in considera- 
 11 tion thereof, to aid in its construction, shall have similar 
 
13 
 
 " grants of land, subject to all the conditions and limitations 
 " herein provided, and shall be required to construct its road 
 "on the like regulations, as to time and manner, with the 
 " Atlantic and Pacific railroad herein provided for." 
 
 (Act of March 3d, 1S71.) 
 
 " SEC. 23. That, for the purpose of connecting the Texas 
 " Pacific railroad with the city of San Francisco, the South- 
 " em Pacific Railroad Company of California is hereby 
 " authorized (subject to the laws of California) to construct 
 " a line of railroad from a point at or near Tehachapa Pass, 
 " by way of Los Angeles, to the Texas Pacific rail road, at or 
 " near the Colorado river, with the same rights, grants, and 
 " privileges, and subject to the same limitations, restrictions, 
 " and conditions as were granted to said Southern Pacific Rail- 
 " road Company of California by the act of July twenty -seven. 
 " eighteen hundred and sixty-six : Provided, however, That 
 " this section shall in no way affect or impair the rights, 
 " present or prospective, of the Atlantic and Pacific Railroad 
 " Company or any other railroad company." 
 
 (Full extracts from the act of July 27, 1866, and supple- 
 mental and amendatory acts relating to the Southern Pacific 
 railroad will be found in the Appendix, No. 1.) 
 
 It will be noticed that the grant of March 3d, 1871, is of 
 the same rights, grants, and privileges, and subject to the 
 same conditions as specified in the act of July 27, 1866. 
 
 Directing our remarks, first, to the Southern Pacific rail- 
 road of California main line it appears that on the 3d of 
 January, 1867, a map of the route of said road, located 
 under the above-quoted section 18 of the act of 1866, was 
 filed in the General Land Office. 
 
 On the 19th March following, the Secretary of the Interior 
 ordered "a withdrawal of lands on account of said road" to 
 be made, so as " to withdraw the odd sections within the 
 
14 
 
 granted twenty miles on each side as shown by the map," 
 " and also withdraw the odd sections outside of the twenty and 
 within thirty miles, on each side, from which the indemnity 
 for lands disposed of within the granted limits is to be 
 taken." 
 
 See copy of this order in the Appendix; also copy of 
 the withdrawal instructions issued to the local land offi- 
 cers by the Commissioner of the General Land Office, No. 3. 
 
 The Commissioner, in his instructions, referred to the 6th 
 section of the law making the grant, and called attention 
 to the fact that thereb} 7 ' the lands within the limits of the 
 grant were held for the benefit of the road. 
 
 The 6th section thus referred to, is as follows : 
 
 SEC. 6. "And be it further enacted, That the President of 
 " the United States shall cause the lands to be surveyed for 
 " forty miles in width on both sides of the entire line of said 
 " road after the general route shall be fixed and as fast as 
 " may be required by the construction of said railroad ; and 
 " the odd sections of land hereby granted shall not be liable 
 "to sale or entry or pre-emption before or after they are 
 " surveyed except by said company, as provided in this act; 
 " but the provisions of the act of September, eighteen hun- 
 " dred and forty-one, granting pre-emption rights, and the 
 " acts amendatory thereof, and of the act entitled 'An act to 
 " secure homesteads to actual settlers on the public domain/ 
 "approved May twenty, eighteen hundred and sixty-two, 
 " shall be, and the same are hereby, extended to all other 
 " lands on the line of said road when surveyed, excepting 
 " those hereby granted to said company." 
 
 In April, 1875, the Secretary, having before him a " test 
 case," as he said (Queen vs. Southern Pacific Railroad Co. 
 Copp's L. 0. for April, 1876, p. 5), decided thus : 
 
 " The company filed a map defining their route January 
 " 3d, 1867." * * * " The law was complied with when 
 
15 
 
 " the map reached the Commissioner's office." " If the map 
 " be regarded as a designation of the general route of road, 
 " then the 6th section of the act of 1866 protects the odd 
 " sections from sale or entry or pre-emption from 'the time 
 " the map was filed. Said section operates as a legislative with- 
 " drawal of the land granted to the road." 
 
 This is substantially the same interpretation of the law 
 since given to it by the courts. When the map was filed, 
 the Department could neither help nor harm the with- 
 drawal. It took effect by law, whether the Secretary or Com- 
 missioner concurred in or opposed the withdrawal. 
 
 This decision has been maintained .in the Department 
 since that time, the only modification, as held in the Tome 
 case, August, 1878, (Copp's L. 0., vol. 5, p. 85.) being such 
 as arises under the joint resolution of 28th June, 1870, in 
 favor of settlers prior to the date of said joint resolution. 
 
 "It is always to be borne in mind, in construing a Con- 
 gressional grant, that the act by which it is made is a law as 
 well as a conveyance, and that such effect must be given to 
 it as will carry out the intent of Congress." (Missouri, Kan- 
 sas- and Texas Railroad Co. vs. Kansas Pacific Railroad Co., 
 97 U. S. Reps., 497.) 
 
 This is the rule prescribed by the United States Supreme 
 Court for Congressional land grants such as have been 
 made by the laws cited to the Southern Pacific Railroad 
 Company of California. 
 
 It is on this principle that the courts have held that the 
 words of section 6, above quoted, establish a reservation of 
 lands along the route for a road that may be located under 
 this law, without reference to the capacity of any grantee to 
 receive the grant, and without reference to the omission 
 
16 
 
 or performance of any future act required to perfect the 
 grantee's title to the lands. 
 
 It has recently been decided by the Supreme Court of the 
 United States that the section, in exactly the same words, in 
 the Northern Pacific railroad grant, establishes a withdrawal 
 of lands along the route of that road by force of the statute 
 itself. 
 
 The decision was made in November last in case No. 18 
 on the docket of the current terra of the Court, in the case of 
 Buttz, executor of Peronto, vs. The Northern Pacific Rail- 
 road Co., appealed by Buttz from the supreme court of the 
 Territory of Dakota. It had not become publicly well 
 known on the 10th of December last. (See 119 U. S. Rep., 
 55.) 
 
 The Court said : 
 
 " When the general route of the road is thus fixed in good 
 11 faith, and information thereof given to the Land Depart- 
 " ment by filing the map thereof with the Commissioner of 
 " the General Land Office or the Secretary of the Interior, 
 " the law withdraws from sale or pre-emption the odd sec- 
 " tions to the extent of forty miles on each side. The object of 
 " the law in this particular is plain ; it is to preserve the land 
 " for the company to which, in aid of the construction of the 
 " road, it is granted. Although the act does not require the 
 " officers of the Land Department to give notice to the local 
 " land officers of the withdrawal of the odd sections from 
 " sale or pre-emption, it has been the practice of the Depart- 
 " ment in such cases to formally withdraw them. It cannot 
 " be otherwise than the exercise of a wise precaution by the 
 " Department to give such information to the local land offi- 
 " cers as may serve to guide aright those seeking settle- 
 " ments on the public lands and expenditures connected 
 " with them which would afterwards prove to be use- 
 less." * * * 
 
 " Accordingly, on the 30th of March, 1872, the Com mis - 
 " sioner of the General Land Office transmitted a diagram 
 
17 
 
 " or map, showing this route to the officers of the local land 
 " office in Dakota, and by directions of the Secretary ordered 
 " them to withhold from sale, location, pre-emption, or 
 " homestead entry all surveyed and unsurveyed odd-num- 
 " bered sections of public land falling within the limits of 
 " forty miles, as designated on the map. 
 
 " This notification did not add to the force of the act 
 " itself, but it gave notice to all parties seeking to make pre- 
 " eruption settlement that lands within certain defined limits 
 " might be appropriated for the road." 
 
 This decision has been promptly accepted by the Secre- 
 tary of the Interior as authoritative in determining cases be- 
 fore him on appeal. In the case of Matthew Sturm's appli- 
 cation for S. J- of N. E. i of sec. 5, tp. 7.N., R. 31 E., Walla 
 Walla district, February 10, 1883, the Secretary, in decision 
 of December 18, 1886 (5 Dec., 295), said : 
 
 " When the Northern Pacific Railroad Company filed its 
 " map of general route, February 21, 1872, the tract in 
 " question became by law withdrawn for the benefit of said com- 
 " pany" 
 
 ' Buttz vs. N. P. R. R. Co., 119 II. S, p. 55. 
 
 In the Buttz case the decision holds that the law itse-lf 
 takes hold of the granted lands and establishes a with- 
 drawal on the acceptance of the map of the route of the 
 road; that the executive order is proper, but adds nothing 
 to the law. 
 
 The Court, in that case, treat that withdrawal as effective 
 to the width of the grant forty miles on each side and as 
 effectual for any one section within the limits as for any 
 other. 
 
 In the case of the Southern Pacific Railroad Company 
 the 6th section of the act of 1866 is effective for the twenty 
 miles on each side, if not for the thirty miles. 
 3 
 
18 
 
 The withdrawal at least to that extent having been 
 established by law, it is clear that executive officers cannot 
 set it aside without authority of another statute. 
 
 To vacate it would require an act of Congress as directly 
 applicable to our roads as is the forfeiture act of July, 
 1886, to the uncompleted portions of the Atlantic and Pa- 
 cific railroad. 
 
 The same judicial conclusion has been reached and ad- 
 ministered repeatedly in the United States circuit court for 
 the State of California, under the jurisdiction of which the 
 lands of the. Southern Pacific Railroad Company are found. 
 6th Sawyer's Reports, 157. Orton vs. R. R. Co. 
 
 In the light of the above-quoted decision of the United 
 States Supreme Court we claim confidently that the opinion 
 of the United States circuit judge pronounced in the Orton 
 case was correct, and should be accepted by the Interior De- 
 partment as controlling. 
 
 I quote from that decision,. as follows: 
 
 " Instantly upon the filing of the plat the odd sections 
 within the prescribed limits on each side of the line indi- 
 cated became affected by these provisions, arid the statute 
 itself proprio vigore withdrew them from sale, entry, or pre- 
 emption except by the company. From that time forth to the 
 present time no man could acquire a pre-emption right, be- 
 cause it was expressly prohibited by the statute, and these 
 provisions of the statute have never yet been repealed or 
 modified ; and this is so, whether the grantee was capable 
 of receiving title or not. The withdrawal is not made to de- 
 pend upon the capacity of the grantee to take, or upon the 
 grantee's performance of the conditions subsequent, so as to 
 perfect the title; but it is absolute without conditions upon 
 the performance of certain designated acts, which were in 
 fact actually performed. The reason for withdrawal, doubt- 
 less, was to secure the construction of the road, but there 
 
19 
 
 was no provision for restoration of the lands to their former 
 condition in case the object failed. That was left for future 
 consideration by Congress. In this act there is not even the 
 provision usual in other acts granting lands for public im- 
 provements that in case of failure to perform the conditions 
 subsequent the lands shall revert to the United States; but 
 the subject is not overlooked, as there is a substitute for such 
 provision in the ninth section, which provides ' that if the 
 said company make any breach of the conditions hereof, and 
 allow the same to continue for upwards of one year, then in 
 such case, at any time hereafter, the United States may do 
 any and all acts and things which may be needful and nec- 
 essary to ensure a speedy completion of the road.' It does 
 not provide that the lands shall be open to sale or pre-emp- 
 tion in case of a failure to complete the road. The United 
 States, by the act, has devoted these odd sections to a con- 
 struction of the contemplated road, and if the grantee fails 
 to complete it for any cause, whether incapacity to do it or 
 otherwise, the Government reserves to itself the right to 
 take such other action as it may, upon consideration of the 
 circumstances, deem needful to accomplish the purpose. If 
 the title did not pass to the intended grantee it might grant 
 the land to other parties for performing the same service. 
 At all events they have been devoted to that object, and 
 withdrawn absolutely and without conditions from any other 
 disposition. There is no provision requiring the Secretary 
 of the Interior to issue any order withdrawing them ; the 
 act itself has that operation by its own force. The order was, 
 doubtless, proper as a matter of information to those seek- 
 ing pre-emption locations, so that they might not ignorantly 
 or recklessly settle upon these lands in which they could 
 acquire no rights, but it is without legal effect." 
 
 (Mr. Justice Miller in Kiievals vs. Hyde, 20 Albany 
 Law Journal, 371.) 
 
 "As there is no authority anywhere in the act for the Sec- 
 retary of the Interior to revoke the withdrawal or restore 
 the lands to market or subject them to pre-emption, his 
 various orders were nullities, as he had no authority what- 
 ever to repeal or modify the act of Congress expressly 
 withdrawing these lands from pre-emption or other disposi- 
 tion. Besides, his orders never took effect, for each was re- 
 yoked or suspended before the time appointed for it to go 
 into operation arrived." 
 
20 
 
 Aftewards, in the same court, two other cases prosecuted 
 by the company, one against John F. Phillips and the other 
 against James H. Cox, were decided in the same way, and 
 the opinion in the Orton case was adopted and filed in these 
 cases as the basis of the judgments rendered. These cases 
 were brought to the United States Supreme Court on writ 
 of error, but in the absence of a brief or assignment of errors 
 on behalf of either of the plaintiffs in error, the judgments 
 below were affirmed December 3, 1883, Nos. 105 and 106, 
 unreported. The ruling of the Court has thus acquired 
 standing by repetition and acquiesence of parties interested. 
 
 Secretary Delano's decision of 1875 thus was upheld in 
 the courts having jurisdiction of the lands, and we here re- 
 spectfully cite Secretary Lamar's decision in the Wisconsin 
 Farm Mortgage case. 
 
 The Commissioner of the Land Office denied the binding 
 authority of the decision of the United States circuit court 
 in that case and proposed to disregard it. The Secretary (5 
 Decs., at p. 92), overruling the Commissioner, said : 
 
 "Whether binding upon the department or not in the 
 " sense you refer to, it is a decision of very high and per- 
 " suasive authority. If the question were one of doubt the 
 " safer rule of administrative action would lead me to accept 
 14 it as authoritative in the conduct of executive business, 
 " and to adhere to the practice heretofore and for so many 
 " years enforced." 
 
 The construction given to the 6th section of the act of 
 July 27, 1866, by the United States circuit judge in Cali- 
 fornia is very full and complete. He holds that the statute 
 prohibits, so long as it is not repealed or modified, the sale, 
 entry, or pre-emption of certain odd-numbered tracts, on 
 
21 
 
 both sides of a certain line, whether they have been granted 
 or riot, whether the grantee named was qualified to take the 
 grant or not, or whether, if qualified, he ever performed the 
 conditions subsequent or not. In short, this section 6 is a 
 legislative prohibition of the sale of certain lands, and as 
 such effective, because there is no provision in the law for 
 the restoration of the lands. 
 
 The language of the United States Supreme Court in the 
 Buttz case is not quite so emphatic, yet it amounts to the 
 same in substance. 
 
 The Supreme Court say that the withdrawal notice " did 
 not add to the force of the act itself." u The law withdraws 
 from sale or pre-emption the odd sections to the extent of forty 
 miles on each side. The object of the law in this particular 
 is plain ; it is to preserve the land for the company to which, 
 in aid of the construction of road^ it is granted." 
 
 It has always been held that a reservation of land estab- 
 lished by law, or according to a special act, can only be re- 
 voked by statutory authority. 
 
 A SPECIAL ACT OF CONGRESS IS THEREFORE NECESSARY. 
 
 In the case of the United States vs. Stone (2 Wallace, 525) 
 a patent was set aside which had been issued by the Secre- 
 tary of the Interior upon a sale of the land by the Land 
 Department, the Court deciding that the premises were, at 
 the time, withdrawn from sale, being within the military 
 cantonment of Fort Leavenworth, the boundaries of which 
 had been established by an Executive order. Prior to 1858 
 there was a statute authorizing the sale of abandoned and 
 useless military sites (March 3, 1819, 3 Stats., 520), which 
 was repealed by act of 12th June, 1858 (11 Stats., 336). 
 
22 
 
 After the repeal, special laws were, from time to time, 
 passed, directing the curtailment and disposal of lands that 
 had been reserved by Executive order. 
 See 12 Stats., p. 70 
 
 14 Stats., p. 573. 
 
 15 Stats., p. 123. 
 
 16 Stats., p. 275. 
 
 The disposal of the lands of a large number of military 
 reservations therein named was provided for by a law of 
 24th February, 1871 (16 Stats., 430) ; and so other special 
 acts were passed, until July 5, 1884, on which date an act 
 was approved (Pamphlet Statutes, 1883-'84, page 103) pro- 
 viding for the disposal of the " lands or any portion of 
 them" "within the limits of any military reservation," 
 which are " useless for military purposes." 
 
 Military reservations of the public lands have always 
 been established by Executive orders, but they have not 
 been, and cannot be, restored to market and sold without 
 some special authority given by statute. 
 
 It appears to be plain, therefore, that the reservations es- 
 tablished under and according to the laws for the benefit of 
 the Southern Pacific railroads in California cannot be re- 
 moved and the lands restored to market without some 
 special authority of law. 
 
 The principles thus invoked to protect the withdrawals, 
 apply to the "branch line" of our road as well as to its 
 main line. Both roads come under the same law of grant. 
 
 We may herp. refer to the letter of the Honorable Secretary 
 of the Interior of December 10, 1886, upon the effect of this 
 
23 
 
 forfeiture act. As to the odd-numbered sections within the 
 limits of the Atlantic and Pacific route in California he said : 
 
 " They were reserved by the act making that grant, from 
 " disposition under the general land laws, for the purpose 
 11 of aiding in the construction of the road. By the act of 
 " forfeiture they are now taken out of that reservation and 
 " restored to the public domain." 
 
 We can indorse this view. The lands were taken out of 
 that reservation, but were not taken out of the reservations for 
 the Southern Pacific roads, which had been previously estab- 
 lished. It would require a statute to do that. But the for- 
 feiture act does not name the Southern Pacific roads or 
 grants, and is, therefore, no authority for dissolving the 
 withdrawals. 
 
 The branch line of the Southern Pacific Company in 
 California was located by a map, filed April 3, 1871, which 
 was accepted by the Department, and on which a with- 
 drawal was duly ordered. 
 
 See Appendix, Exhibit No. 5. 
 
 We claim, therefore, that in the absence of some direct 
 authority of law the withdrawal of granted lands along the 
 lines of the Southern Pacific roads cannot be revoked, or 
 the lands restored to sale or pre-emption by an Executive 
 order ; and this proposition applies to the lands on both the 
 main and branch lines throughout the extent of their loca- 
 tions. They were all withdrawn before the Atlantic and 
 Pacific route was located. 
 
 We confidently state that never in the history of the ad- 
 ministration of land grants have the withdrawn lands been 
 restored to market whilst the grant was unsettled, and the 
 company was claiming the lands. 
 
24 
 
 And we cannot for a moment entertain the opinion that 
 the present case is one in which a first experiment should 
 be made at a time when the grant is in process of settle- 
 ment; when patents have been issued for over 1,000,000 
 acres, and lists of half as much more land are pending for 
 examination and patenting. 
 
 The Conflicts of Limits. 
 
 As hereinbefore stated, by the 3d and 18th sections of the 
 act of July 27, 1866, (14 Stat., 292), a grant was made to the 
 Southern Pacific Railroad Company of California, to aid in 
 the construction of a railroad from San Francisco to the 
 crossing of the Colorado river, called the main line of the 
 Southern Pacific railroad. By the same law a grant was 
 made to the Atlantic and Pacific Railroad Company to aid 
 the construction of a railroad : 
 
 " Beginning at or near the town of Springfield, in the 
 " State of Missouri, thence to the western boundary line of 
 " said State, and thence by the most eligible railroad route as 
 " shall be determined by said company to a point on the 
 " Canadian river; thence to the town of Albuquerque on the 
 " river Del Norte, and thence by the way of the Agua Frio, 
 " or other suitable pass, to the head-waters of the Colorado 
 " Chiquito, and thence along the thirty-fifth parallel of lati- 
 " tude, as near as may be found most suitable for a railway 
 "route, to the Colorado river, at such point as may be 
 " selected by said company for crossing ; thence by the most 
 " practicable and eligible route to the Pacific." 
 
 These grants were upon similar terms and conditions. 
 
 By the 23d section of the act of 3d March, 1871, (supra), 
 a grant of lands on like terms and conditions, and of the 
 same quantity per mile, in the State of California, was made 
 to the said Southern Pacific Railroad Company of California, 
 
25 
 
 to connect its main line of road from Tehachapa Pass, by 
 way of Los Angeles, with the Texas Pacific railroad at the 
 crossing of the Colorada river, near Yuma. 
 
 As above stated, the main line of the Southern Pacific 
 railroad was located January 3, 1867, and that of the branch 
 line April 3, 1871. The line of the Atlantic and Pacific 
 railroad in California was located by maps approved April 
 llth, 1872, and April 16th, 1874. 
 
 On the main line of its road the Southern Pacific railroad 
 had a simultaneous grant with the other company. On the 
 branch line its grant was by a subsequent law, that of 1871, 
 but on the terms and conditions of the original act of 1866. 
 
 Both grants having been construed as grants of quantity 
 within primary limits, with indemnity for lost lands as 
 specified, when the Atlantic and Pacific locations were made, 
 they exhibited a route for that road almost coincident with 
 that of the main line of the Southern Pacific railroad for 
 nearly 200 miles westward from the Colorado river, and 
 which crossed the route of the Southern Pacific branch line 
 some 30 miles north of Los Angeles. Hence all the various 
 conflicts of the granted and the indemnity limits of the con- 
 flicting locations. 
 
 Leaving, at least for the present, a discussion of these de- 
 tails, we respectfully claim that 
 
 III. 
 
 No restoration of lands withdrawn for our roads should be 
 made, because our rights in the granted lands have vested in par- 
 ticular tracts, and our right to indemnity for lost lands has 
 likewise vested as to quantity, opposite all those portions of 
 our roads along which the conflict of limits exists. There is 
 4 
 
26 
 
 no conflict of limits along the 80 miles of the main line loca- 
 tion, which has not yet been constructed. 
 
 The road, called the main line of the Southern Pacific 
 Company, was completed from San Jose to Tres Pinos, fifty 
 and twenty-six hundredths miles, prior to, and was accepted 
 by the President of the United States October 23, 1871 ; that 
 portion from Huron to Mojave was completed prior to and 
 accepted by the President of the United States February 13, 
 1878; total, two hundred and thirty-one and ninety -two 
 hundredths miles. And the portion from Mojave to the 
 the Colorado river, two hundred and forty-two and one-half 
 miles in addition, was completed and reported by commis- 
 sioners December 27, 1884, filed January 6, 1885, as provided 
 in the joint resolution of June 28, 1870. 
 
 The entire branch line road, under section 23 of the act 
 of March 3, 1871 (16 Stat, p. 579) was finally completed 
 three hundred and forty-six and ninety-six hundredths miles 
 in length prior to the time limited therefor, and the last 
 sec: ion of one hundred and eighteen and thirty -seven hun- 
 dredths miles was accepted by the President of the United 
 States, January 23,1878. 
 
 It is after all this has been done, and after the forfeiture 
 act has been passed, that the question arises, what lands 
 have been granted to the Southern Pacific Railroad Com- 
 pany of California, and in no way can this question be so 
 squarely answered as by the words in the law of the grant. 
 
 The grant of lands (Sec. 3, act of July 27, 1886) was of 
 
 " Every alternate section of public land, not mineral, des- 
 " ignated by odd numbers, to the amount of twenty alter- 
 " nate sections per mile on each side of said railroad line, as 
 " said company may adopt, through the territories of the 
 " United States, and ten alternate sections of land per mile 
 
27 
 
 " on each side of said railroad whenever it passes through 
 " any State, and whenever, on the line thereof, the United 
 " States have full title, not reserved, sold, granted, or other- 
 " wise appropriated, and free from pre-emption or other 
 " claims or rights at the time the line of said road is designated 
 " by a plat thereof ', filed in the office of the Commissioner of the 
 " General Land Office, and whenever, prior to said time, any 
 " of said sections or parts of sections shall have been granted, 
 "sold, reserved, occupied by homestead settlers or pre- 
 " empted or otherwise disposed of, other lands shall be se- 
 " lected by said company in lieu thereof, under the direction 
 " of the Secretary of the Interior, in alternate sections, and 
 " designated by odd numbers not more than ten miles be- 
 " yond the limits of said alternate sections, and not includ- 
 " ing the reserved numbers," &c. 
 
 By section 4 it was provided : 
 
 "And if it shall appear that twenty-five consecutive miles 
 " of said road and telegraph line have been completed in a 
 " good, substantial, and workmanlike manner, as in all other 
 " respects required by this act, the commissioners shall so 
 " report, under oath, to the President of the United States, 
 " and patents of lands as aforesaid shall be issued to said 
 " company, confirming to said company the right and title 
 11 to said lands situated opposite to and coterminous with 
 " said completed section of said road." And upon verification 
 by the commission to the President of the completion of other 
 sections of road, "patents shall be issued to said company 
 conveying the additional sections of land," &c. 
 
 This section was modified by the joint resolution of 28th 
 June, 1870, (see Appendix,) which provided that on notice 
 given to the Secretary of the Interior of the completion of a 
 section of road, that officer should cause an examination to 
 be made by commissioners appointed by the President, and 
 on their report to the Secretary " that such section of said 
 " railroad and telegraph line has been constructed as re- 
 " quired by law, it shall be the duty of the said Secretary of 
 " the Interior to cause patents to be issued to said company 
 
28 
 
 lt for the sections of land coterminous to each constructed sec- 
 " tion reported on as aforesaid, to the extent and amount granted 
 " to said company by the said act of July 27, 1866, expressly 
 " saving and reserving all the rights of actual settlers," &c. 
 When these provisions of law are applied to the facts just 
 stated, it results that by the completion of the roads in sec- 
 tions, as provided in the law of the grant, the railroad com- 
 pany has acquired a right to patents for the corresponding 
 quantity of lands, if the quantity is found within the pre- 
 scribed limits, along the completed road. 
 
 THE GRANT FOR THE SOUTHERN PACIFIC MAIN LINE. 
 
 By an examination of the general provisions of the act of 
 July 27, 1866 (and the act of March 3, 1871, is similarly con- 
 ditioned), we shall find that in many respects it appears as a 
 contract between two parties the one to build, complete, 
 and equip lines of railroad and telegraph, of which the other 
 was to have the use in the manner and on the terms pre- 
 scribed. The work was to be done to the satisfaction of the 
 United States, and the compensation was to be paid in in- 
 stalments as the work was completed. 
 
 The sections of the law referred to below are to be found 
 printed in full in the Appendix, No. 1. 
 
 Looking at section 18 of the act of 1866, the relations of 
 the parties are set forth in the usual words of a contract. 
 
 "In consideration" of the building of the road by the 
 company "it shall have similar grants of lands," &c. 
 
 The company was to close the contract by filing, in writ- 
 ing, "its acceptance of the terms, conditions, and impositions 
 of this act." (Section 12.) 
 
29 
 
 This was done. The gauge of the road was to be of a 
 certain width (section 18) and rates of fare and freight were 
 to be arranged in a prescribed manner. (Section 18.) 
 
 The company was to commence work by a specified date, 
 and to build fifty miles of road per year. Section 8. (This 
 was modified to twenty miles per year. Act of July 25, 
 18G8.) 
 
 No money was to be paid (section 3), but payment was to 
 be made by the conveyance of land granted opposite each 
 section of road, as fast as it was duly completed. (Section 4.) 
 
 The company was to pay the compensation of examiners 
 appointed by the United States. (Section 4). 
 
 A specified kind of iron was to be used, and the company 
 agreed not to charge the United States higher rates for 
 transportation and telegraphing than were charged to indi- 
 viduals. 
 
 The company was not to refuse to allow other roads to 
 connect with it. 
 
 It agreed to perform for the United States postal, military, 
 and naval transportation, subject to such regulations as 
 Congress might impose in respect to the charges for such 
 service. (Section 11.) 
 
 Finally (by section 20) "the better to accomplish the ob- 
 ject of the act," viz., the construction of the railroad and 
 telegraph line, Congress reserved the power to alter and 
 amend the law ; and by section 9, in case of any default in 
 the company, that should continue one year, then the United 
 States reserved the right to annul the contract so far as un- 
 completed, and to place the lands in other hands, if " neces- 
 sary, to insure a speedy completion of the said road." 
 
 A question was raised in 1869-1870, as to the validity of 
 
30 
 
 the location of the main line ; but the controversy then ex- 
 isting between the company and the department culminated 
 in a legislative confirmation of the line, by joint resolution 
 of 28 June, 1870, and thereby the then existing withdrawals 
 of lands were sanctioned and maintained, not only for the 
 limits of the grant (twenty miles on each side), but also for 
 the indemnity limits, ten miles beyond. 
 
 This joint resolution confirms the company's grant on its 
 main line to the full u extent and amount" of lands granted 
 by the law of 1866, opposite each section of completed road. 
 It will be found printed in the Appendix, No. 2. 
 
 No attempt has ever been made in the Land Department 
 to disturb the grant and withdrawal on this main line of 
 road, since this confirmatory joint resolution of 1870. And 
 although attempts, repeated attempts, have been made in 
 the courts, to call in question this location and withdrawal, 
 they have signally failed. The Orton decision has stood as 
 a correct exposition of these laws since the year 1879, in 
 which it was made. 
 
 There is, however, another fact worthy of mention. It is 
 this: 
 
 Secretary Delano, having before him the matter of the con- 
 flict of the grants claimed by the Southern Pacific Com- 
 pany and the Atlantic and Pacific Company along the lines 
 of the latter, from the west line of Los Angeles county to 
 the Colorado river, which includes the entire conflict be- 
 tween the limits of the grants, decided on the 15th of April, 
 1874, that the Southern Pacific Company had the prior and 
 better right to the lands along its line, to the exclusion of 
 the Atlantic and Pacific Company, citing the above-men- 
 tioned joint resolution as confirming the claim of the South- 
 ern Pacific Railroad Company. 
 
31 
 
 On the 16th April, the day after this decision, he approved 
 the map of the line of the Atlantic and Pacific Railroad 
 Company along the portion of its road stated, thus practi- 
 cally making his approval subordinate to and conditional 
 upon the recognition of the better right of the Southern 
 Pacific Company to the lands it claimed which he had de- 
 clared on the preceding day. See decision in Copp's L. 0. 
 for 1878, vol. 4, p. 147, adopting that of Assistant Attorney 
 General Smith (p. 149), in which that officer said : 
 
 " The joint resolution of June 28th, 1870, is, however, 
 " material when we consider the question whether the land 
 "grant of the Southern Pacific is affected by the present 
 " location of the Atlantic and Pacific. The former was located 
 " by said joint resolution, which was long before the location 
 " of the latter, and, therefore, by a well-settled rule in your 
 " department, will be entitled to the lands where they may over- 
 " lap, and cannot be injuriously affected in its right to the 
 " lands given to aid in its construction." 
 
 It is also an important fact, that under this decision the 
 railroad of the Southern Pacific main line was built. It is 
 also true that the decision quoted stands to-day unchanged 
 in the Department, as the decision upon that conflict and 
 upon the legal effect of the joint resolution, and so stood on 
 the 6th July, 1886. 
 
 It is in the nature of a judgment of a court of last resort, 
 and is binding upon the parties and their privies in the 
 same jurisdiction, though the interpretation of similar stat- 
 utes has recently been changed. 
 
 The Atlantic and Pacific Company acquiesced in it. 
 Though we regard it as of the first importance that a deci- 
 sion upon the conflict of the main line road was made in 
 our favor in 1874, and that the road has been constructed 
 
32 
 
 tinder that decision, which has never been changed, yet we 
 confidently claim that at this time the Department of the 
 Interior is under obligation to recognize our right to all the 
 lands of our grants both granted and indemnity lands 
 because 
 
 Our lines of railroad and telegraph opposite them had 
 been fully completed prior to the date of the forfeiture act. 
 
 It is impossible to find any words in the law that limit 
 our grants to less than twenty sections per mile, unless the 
 grants are cut short (as we concede they will be) by the 
 thirty-mile limits for the indemnity lands, and the excep- 
 tions made by the terms of the grant. 
 
 We are conscious that in making the above claim for our 
 branch line road we are encountering the opinion of As- 
 sistant Attorney General Montgomery, that all the odd- 
 numbered sections within the limits of the Texas Pacific 
 location were granted to that company, and that the proviso 
 in section 23 of the act of March 3, 1871, that the grant 
 thereby " shall in no way affect or impair the rights, present 
 or prospective, of the Atlantic and Pacific Railroad Company, 
 or any other railroad company," excluded the Southern 
 Pacific grant from taking effect within any limits which 
 might result by the location of the Texas Pacific line. (4 
 Decisions, 215.) 
 
 We understand that opinion as based upon an axiom of 
 interpretation which we deem erroneous, viz., that in " a 
 statute granting lands every intendment must be taken 
 most strongly against the grantee." The error grew out of 
 the application of this erroneous principle, and that it is 
 erroneous we propose to show. 
 
 But, first, we remark that the opinion just referred to 
 
33 
 
 does not reach the principal conflict of the Atlantic and Pa- 
 citic limits with the limits of our main line. 
 
 There is no such proviso as that to our first grant. Our 
 grant there is simultaneous, and on a full equality with the 
 other; and the question raised by the Commissioner's letter 
 is whether our company has or has not a right to all 
 the land. 
 
 OUR COMPANY HAS ACQUIRED ALL LANDS IT NOW CLAIMS. 
 
 We claim, as to our main line, that, having constructed 
 the road opposite, we have acquired the corresponding lands 
 granted in both limits; therefore, none of them can now be 
 sold by the United States. 
 
 In support of this proposition we refer to numerous de- 
 cisions of the United States Supreme Court. 
 
 The case of Sioux City and St. Paul Company vs. Chicago 
 and St. Paul Company (117 U. S. Reps., 406) was one where 
 the controversy arose under the same grant, and both par- 
 ties had completed their railroads. It was decided March 
 29, 1886. 
 
 The Court said (p. 407) : 
 
 " The roads to be benefited by this grant, have both been cora- 
 " pleted, and both companies are entitled to the odd sections 
 *' within ten miles of their lines of road, and to the indemnity 
 " lands, so far as they can be found in odd numbers, within 
 " twenty miles ; but as the roads cross each other their limits 
 " also cross and overlap, and the claims to the odd sections 
 " conflict." 
 
 At page 408 : 
 
 "The title acquired from the United States relates back 
 " to the date of the grant, and neither company can obtain 
 " any superiority of title by any act done by it, or by any 
 5 
 
34 
 
 " omission to act by the other, provided there is no forfeiture 
 " of the grant. 
 
 11 This principle is fully decided in the case of Sioux City 
 " and St. Paul Company vs. Winona and St. Peter Company 
 "(112 U. S. Rep., 720). In such cases the companies take 
 the lands coming within the conflicting lines in equal 
 " moieties." 
 
 Had there been a forfeiture of one of the grants, the impli- 
 cation is that the company that fulfilled the law would take 
 all the land. 
 
 * * * The Court say further : 
 
 "But no title to indemnity lands was vested until a se- 
 " lection was made by which they were pointed out and 
 " ascertained, and the selection affirmed by the Secretary of 
 " the Interior." " In a case, therefore, where two companies 
 " had this right of selection within the same limits, priority 
 " of right might be created by priority of selection, &c." (P. 
 408.) 
 
 As to the lands common to the granted limits of both 
 roads, the Court said : 
 
 " That part of the decree, therefore, which divides the 
 " lands equally, and directs the Commissioners to make par- 
 " tition of them, is also affirmed." 
 
 As thus expounded the rule is evidently one arising from 
 the fact that both companies had completed their roads, and, as 
 against the United States, had acquired the right to all, and, as 
 their rights were equal, partition became necessary. 
 
 It does not seem necessary to discuss the prior decisions 
 of the same Court, some of which were referred to in this 
 one, but it may be remarked that it appears in all the cases 
 reported, that the successful party, and in most of them both 
 of the parties, had completed the road opposite the land in contro- 
 versy before instituting suit. 
 
35 
 
 This was the case in Buttz vs. The Northern Pacific, 119 
 U. S. Rep., p. 55. 
 
 Also, Missouri, Kansas and Texas Company vs. Kansas 
 Pacific Company, 97 U. S. Rep. p. 491. 
 
 Van Wyck vs. Knevals, 106 U. S. Rep., p. 360. 
 Kansas Pacific Company vs. Atchison, Topeka and 
 
 Santa Fe Company, 112 U. S. Rep., p. 414. 
 Sioux City and St. Paul vs. Winona Co., 112 U. S. 
 
 Rep., p. 720. 
 Kansas Pacific Company vs. Dunmeyer, 113 U. S. 
 
 Rep., p. 629. 
 Walden vs. Knevals, 114 U. S. Rep., p. 373. 
 
 In expounding the Union Pacific railroad grant, 112 U. S. 
 Rep., p. 422, the Court say : 
 
 " The Kansas Pacific Railway Company, under the acts of 
 " Congress of 1862 and 1864, by a compliance with their 
 " provisions in the construction of its road, acquired the title to the 
 " lands in controversy, and has accordingly a right to record evi- 
 " dence of it in the form of a patent." 
 
 The Kansas Pacific Company had not obtained a patent, 
 but evidence of title had been issued by the Land Depart- 
 ment to the other party to the suit. 
 
 The record showed the acceptance by the President of the 
 United States, in Jan., 1867, of twenty-five miles of completed 
 road of the Kansas Pacific Company, opposite the lands in 
 contest, and was silent as to the other parts of the entire 
 road. 
 
 In the case of Kansas Pacific Railway Company vs. Dun- 
 meyer, the record showed exactly the same state of facts ; 
 that is, the location of the line in 1866 and the completion 
 
36 
 
 of 25 miles of road in 1887, and the court said (p. 641): 
 " The company had no absolute right until the road was built on 
 11 that part of it which came through the land in question" 
 
 Here it is said that the completion of the section of road 
 gives absolute right to the lands granted opposite it, this 
 quotation being, in substance, the same as that above from 
 112 U. S. Rep., p. 422. 
 
 In the case of Van Wyck vs. Knevals, supra, the case was 
 one of the location and completion of the section of road op- 
 posite, but it was alleged by the other party " that the com- 
 "pany never completed the construction of the entire road 
 " for which the grant was made." (p. 368). 
 
 In reply to this the Court say : 
 
 " Assuming that the company's proposed road was not en- 
 " tirely completed, the fact remains that the company con- 
 " structed a portion of the road, and that portion ivas accepted as 
 " completed in the manner required by the act of Congress" 
 
 The land in controversy being opposite a completed por- 
 tion of road, the court held the title under the railroad grant 
 to be complete, though a patent had been issued to the op- 
 posing party, which was issued upon a sale of the land made 
 after the definite location of the road. No patent had issued 
 to the railroad company under its grant. 
 
 The case of Walden vs. Knevals (supra) was exactly sim- 
 ilar. 
 
 In Missouri, Kansas and Texas Company vs, Kansas 
 Pacific Company (supra), likewise, the record shows the lo- 
 cation and completion according to law of the section or 
 part of the road opposite the lands in controversy. 
 
 In all these cases the provisions in the law of grant were 
 similar to those in the case of the Southern Pacific Railroad 
 
37 
 
 Company, section 4 (Appendix); that is, the companies were 
 entitled to have, and did have, their roads completed in 
 sections and reported to the Secretary of the Interior. 
 
 These decisions go at least thus far, that under these circum- 
 stances the executive officers have no right to sell the lands or con- 
 vey them to any other applicant. 
 
 As to all the lands of the Southern Pacific Company, along 
 both its lines, so far as involved in this inquiry, the com- 
 pany has completed its roads, and had them duly reported 
 in sections, and has fully complied with the conditions of 
 the grants. Thereby it has acquired title to all lands within 
 the granted limits, and to indemnity for such as cannot be 
 conveyed, because of the exceptions named in the terms of 
 the grant, and is now entitled to patents as provided for in 
 the joint resolution of 1870. 
 
 In 12 Opinions, p. 254, Attorney-General Stanbery said : 
 
 "It has again and again been decided that a title vested 
 " by statute is just as complete as one vested by the issuance 
 " of a patent, and in this case, the title being so vested prior 
 " to the patent, the only office of the patent is to afford the 
 " party more convenient evidence in establishing his rights 
 " when brought in contest." 
 
 See Stark vs. Starrs, 6th Wallace, 402, where it is said : 
 
 " The right to a patent once vested is equivalent, as re- 
 " spects the Government dealing with the public lands, to a 
 " patent issued." 
 
 This is confirmed in Barney vs. Dolph, 97 U. S. Rep., 652 
 at p. 656. See also, Wirth vs. Branson, 98 U. S. Rep., 118, 
 where it is decided that "a party who has complied with all 
 " the terms and conditions which entitle him to a patent for 
 " the particular tract of public land, acquires a vested inter- 
 
38 
 
 " est therein, and is to be regarded as the equitable owner 
 11 thereof." 
 
 This doctrine has lately been recognized by a decision of 
 the Secretary. (5 Land Decisions, p. 38-39.) 
 
 And if the right to the patent is absolute, the title in the 
 company is irrevocable, even by an act of Congress. 
 Fletcher vs. Peck, 6 Cranch, p. 87. 
 Terrett vs. Taylor, 9 Cranch, p. 43. 
 Wilkinson vs. Leland, 2 Peters, p. 627. 
 
 It appears from the decisions just cited that the Govern- 
 ment cannot sell and convey these lands of the Southern 
 Pacific Company's grant to other applicants. This being 
 the case, they ought not to be restored to market by a notice 
 which would prove to be only a trap and a deception to 
 honest settlers, and possibly lay the foundation for a heavy 
 bill of expense to the United States. We notice that a bill 
 has recently passed the U. S. Senate (January 11, 1887), to 
 pay to parties in Kansas and Nebraska, $3 50 per acre for 
 lands sold to them by the United States, within the limits 
 of the grant to the St. Jo and Denver, otherwise the 
 Northern Kansas Railroad Company, by act of 1866. The 
 bill appropriates a sum not exceeding $250,000. (Congres- 
 sional Record, pp. 549, '50, '51.) 
 
 But the Atlantic and Pacific Company did not fulfil the 
 conditions of its grant. All it did under the law was to file 
 a map to designate the route of a railroad it then intended to 
 build, and the lands it then intended to acquire, but which it 
 never has acquired, because it has never built the railroad. 
 
 The mere withdrawal of the land for that company did 
 not affect the title of the lands in the United States. 
 
39 
 
 " The order of the withdrawal of lands along the probable 
 " lines of the defendant's road, made on the 19th March, 
 " 1863, affected no rights which, without it, would have been 
 "acquired to the lands, nor in any respect controlled the 
 " subsequent grant." 
 
 Kansas Pacific vs. Atchison &c., R. R., 112 U. S. 
 Rep., at p. 422. 
 
 The case of the Kansas City, &c., R. R. Co. vs. The At- 
 torney General (US' U.S. Rep., 682), we claim as an authority 
 that indemnity lands, common to the indemnity limits of 
 two railroads claiming under the same grant, are properly 
 certified for the benefit of the company which has built its 
 road. 
 
 The lands in controversy were odd-numbered sections 
 within "the overlapping indemnity limits of the grants (by 
 " act 3d March, 1863) for the L. L. & G. Railroad Company 
 " and the Mo. Kan. and Texas Railway Company/' and were 
 certified to the State of Kansas, April 10, 1873, under said 
 act for the M. K. & T. Company, which had built its rail- 
 road opposite the lands. 
 
 The Commissioner of the Land Office, March 11, 1882, in 
 his report to the Secretary of the Interior, said : " I am of 
 " the opinion that the certification of the lands in the odd- 
 " numbered sections within the overlapping indemnity 
 " limits east of the L. L. & G. Railroad was erroneous, and 
 " accordingly recommend the institution of the suit in the 
 " name of the United States to set aside the company's title 
 " to this particular class of lands." 
 
 In reference to these same lands Secretary Schurz, in a 
 letter to Hon. D. C. Haskell, May 15, 1878, said: "As the 
 " M. K. & T. road was entitled to indemnity for lands lost 
 " in place to the full amount of the lands so selected, and 
 
40 
 
 " the selections were made of lands that had been reserved 
 " for indemnity purposes for said road, I am of the opinion 
 " that there is no defect in the title of the railroad com- 
 " pany." 
 
 But a technical construction of the laws was insisted on 
 in 1882, and suit instituted early in 1883 by the Attorney 
 General. 
 
 When the case reached the United States Supreme Court 
 the technical construction of the Government officials was 
 discarded, though a very able and learned effort was made 
 by special counsel, uniting with the Attorney General, in 
 behalf of the United States. 
 
 The principal point made by the United States was that 
 the lands were appropriated by the grant for another road ; 
 that Congress had provided for two roads. But the Court 
 held that upon examination of all the statutes they were 
 satisfied that Congress intended to have but one road, and to 
 consolidate the grants in aid of that one. 
 
 The Court pronounced the interpretation claimed by the 
 United States to be a " strained construction." They said 
 Congress knew all the existing facts in 1866, and that it was 
 more " reasonable " to hold that Congress intended by the 
 act passed in that year to ratify the rights of the Mo. Kan. 
 & Texas Company to the lands for the purpose of building 
 that road. (Page 691.) 
 
 Here the Court considered the whole case and the whole 
 law and adopted a " reasonable construction " to promote 
 the intention of Congress to have one road built, and to aid 
 that one road by the grants. 
 
 Through the certified list and the conveyance of the lands 
 from the State, the Court held that the company " acquired 
 
41 
 
 " the real ownership and equitable interest in the lands 
 " which it had earned by building the road in accordance with 
 " provisions of all the statutes," &c. 
 
 The fact that they were within the indemnity limits of 
 another road located under the same grant was not noticed 
 by the Court as affecting the validity of the right of one 
 company to the whole. 
 
 The issue, whether or not the land had been earned by 
 building the road, was decided in favor of the company and 
 against the United States. 
 
 This appears to us to be a case like our own. We find 
 that our grant was made and located, the location was con- 
 firmed by Congress, and the road built as required by the 
 statutes. We, therefore, have the equitable ownership of all 
 the lands of our grants, which the United States cannot suc- 
 cessfully question, and we are entitled to the patents which 
 the law directs to be issued. The United States cannot deny 
 us the full benefit of compliance with the law on the ground 
 that under a simultaneous grant for building another road 
 it was once possible for another company, which did not 
 build a road, to have complied with the law and acquired a 
 part of the lands or a part interest in some of them. 
 
 This decision certainly supports our claim to all the lands 
 as against a simultaneous grantee who does not build a rail- 
 road. And in the nature of the case, we see no difference 
 between such a case and that where a prior grantee fails to 
 build, and a subsequent grantee builds, a railroad in the manner 
 and upon the terms and conditions of its grant. 
 
 The United States can take nothing from the Southern 
 Pacific Company by the failure of the Atlantic and Pacific 
 Company to build its railroad. This, we think, is settled in 
 the recent case just cited. 
 6 
 
42 
 
 THE COMPLETION OF ROAD THE COMPLETION OF TITLE. 
 
 The justice and propriety of the views expressed by the 
 court as the true construction, is apparent by reference to the 
 terms and conditions expressed and the order of events men- 
 tioned in the law of grant, thus : 1st, the grant ; 2d, the 
 acceptance thereof; 3d, the filing of a map of route; 4th, 
 adoption of gauge ; 5th, beginning of construction and pro- 
 gress of work ; 6th, completion of road to the standard re- 
 quired, ready for the contemplated service ; 7th, performance 
 of transportation of United States mails, United States troops, 
 civil officers, and employes, and military and naval equip- 
 ments, stores, etc. 
 
 The grant is "to aid construction," and until construction 
 no service can be rendered to the Government, none to the 
 people. The acceptance by the company, the filing of a 
 map of route, the fixing of a gauge, are of no use except as 
 preliminaries ; they are not even a part of the actual work 
 of building, and the company that has never begun to build 
 has never begun to acquire title to granted lands. The 
 location of route only designates the lands which it might 
 obtain by construction and equipment. 
 
 And if there be two or more grantees who fulfil the law, 
 then the Government and the people have the advantage 
 of transportation over all the lines. If one builds its road, 
 the Government and the people have all the benefit pro- 
 posed to be secured by that road, and the company obtains, 
 on its part, all the proffered grant. 
 
 There never was a grant of a moiety of the lands along a 
 line to one company for its road, and another moiety to an- 
 other company for another road. In such a case the com- 
 
43 
 
 pany fulfilling the law could never get, and the company 
 failing and forfeiting never lose, more than the moiety 
 granted. After the forfeiture in such a case the Government 
 might have something remaining to it, but not where, as 
 in the present case, the whole has been granted and the con- 
 ditions of that grant have been completed. 
 
 It is also true that where a company having a prior grant 
 fails to build, and thereby forfeits, and a subsequent grantee 
 fulfils the conditions of a subsequent grant, there is no 
 obstacle to recognizing the right of the company that builds 
 the road. It is plainly the intention of Congress that the 
 latter should have the promised compensation. An exist- 
 ing withdrawal for another grantee is no obstacle to the 
 grant of a title by a subsequent law. (Kansas Pacific Co. 
 vs. Atchison, Topeka and Santa Fe Co., 112 U. S. Rep., 414.) 
 And when making a subsequent grant for a road along the 
 line of a prior grant, Congress must be supposed to have 
 acted intelligently, and to have had in view a probable 
 forfeiture by the first grantee. 
 
 The common sense of the common people asserts that 
 useful work performed is entitled to wages promised. For 
 so much railroad built and prepared for the required service 
 so much land is pledged. This principle has been recog- 
 nized as applicable to railroads claiming under grants. In 
 the last session of the 48th Congress, speaking of our Branch 
 line road, Senator Morgan said (Rec., p. 2097): 
 
 " The Southern Pacific Railroad Company built their 
 " road down to Yuma in time to earn all their land grant. 
 " * * * They earned the land grant to Yuma." 
 
 Construction of the designated road is the basis of the 
 decisions of the United States Supreme Court hereinbefore 
 
44 
 
 referred to. The Court treats it as the completion of the title, 
 of which the grant by Congress is the foundation. 
 
 Here it is worthy of notice that in the recent act of July 
 10, 1886, "to provide for the taxation, of railroad-grant 
 lands," Congress did not treat any company as the owner of 
 lands which had done nothing more than to file a map of 
 definite location, but provided " that this act shall apply 
 "only to lands opposite to and coterminous with the com- 
 " pleted portions of said road." 
 
 This act conforms thus to the judicial decisions which 
 make the construction of the road a necessary antecedent of 
 acquiring full title to granted lands, and these views are 
 entirely consistent with the decisions which fix the definite 
 location of route by filing a proper map, as the act done, 
 which designates and segregates from the public lands those 
 tracts that are subject to the grant and those that are ex- 
 cepted from it. They are then set apart as the property 
 offered in compensation for the building of the railroad. 
 
 The primary object and purpose of the grant of lands, the 
 Court said in the Platt case, was to aid the company in building 
 a railroad, and this is expressed in the titles of the laws mak- 
 ing the grants to our company. It is repeated in the 18th 
 section of the act of 27th July, 1866, in the words: "And in 
 consideration thereof " (that is, building the railroad and 
 telegraph) " and to aid in its construction shall have similar 
 grants of land." 
 
 The great and controlling end and object is the construction of 
 the railroad. The company that builds its road according to 
 law fulfills the substance of the work it is to do, and is en- 
 titled to the substance of its compensation. The company 
 that does not build its road, does not become the beneficiary 
 
45 
 
 of a grant, and so the United States Supreme Court holds in 
 the cases of Cedar Rapids Railroad Company vs. Herring 
 and others (110 U. S. Rep., p. 27). In these cases it appeared 
 that the company made a location on one route ; afterwards 
 changed the line and built another road. Held, in sub- 
 stance, that they were not entitled to land on a line located 
 but never constructed ; that the land granted was ascer- 
 tained by the line constructed. 
 
 The forfeiture act of 1886 is in full harmony with this 
 principle. On the line of the Atlantic and Pacific, where 
 road had been built, no forfeiture was declared. The forfeiture 
 was only of lands along uncompleted portions of road. The 
 Congressional tribunal, sitting in judgment on the case, did 
 not mention any penalty for failures to do other things as 
 required, but condensed all the faults of the delinquent 
 company into the one charge that of failure to build the 
 road. 
 
 It is true that for this proposed but unconstructed road of 
 the Atlantic and Pacific Company there was a grant simul- 
 taneous with the grant for our main line and prior in date 
 to the grant for our branch line, and our branch line grant 
 was, therefore, made so as to "in no way affect or impair the 
 " rights, present or prospective, of the Atlantic and Pacific 
 " Railroad Company." This protected a prior grant as 
 against a subsequent one where the rights of the companies 
 came in collision, but there can be no collision so long as the 
 Atlantic and Pacific Company has built no road. Our com- 
 pany has never impaired the rights of that company. It is 
 not our fault that they have never acquired and cannot now 
 acquire title to any lands in California. This limitation is 
 now as inoperative as the grant is upon the forfeited lands. 
 
46 
 
 There are no rights, present or prospective, in the Atlantic 
 and Pacific Company in the lands earned by our company. 
 
 When we demand all the lands of our grants, shall we be 
 told by the United States that we shall not have them be- 
 cause the Atlantic and Pacific might have earned some of 
 them, but did not? Ah ! did not; and, if not, then why did 
 not our company earn them under its subsequent grant? 
 Can it be found that we failed to comply when they failed 
 that we sinned in Adam's transgression? 
 
 We may here say that neither party to the contract of 
 grant had any such absurd intentions, " uttered or unex- 
 pressed," when the law was enacted. The Secretary of the 
 Interior, upon the filing of our maps, immediately withdrew 
 all our lands, practically saying : " This you shall have for 
 building the roads." We accepted the grants and built the 
 roads under this construction of the grants. 
 
 Now, it is also a familiar principle, applicable in courts in 
 interpreting contracts, that a reasonable construction, adopted 
 and acted upon for years by both parties to a contract, will 
 not be changed so as to affect what has been done by them 
 under this construction. 
 
 THE TEXAS PACIFIC CASE NOT A PRECEDENT. 
 
 We here claim that the action of the Department, in the 
 matter of conflict between the Texas Pacific grant and the 
 Southern Pacific branch road, of November 2, 1885, should 
 not be regarded as a precedent in this matter. The for- 
 feiture acts are essentially different. In that case there was 
 declared a forfeiture of all the lands granted. In this there is a 
 recognition of the company's rights to all those opposite completed 
 road. 
 
47 
 
 In the present case, also, the forfeiture is further restricted 
 to lands on " the uncompleted portion of the main line of 
 road." There is no forfeiture proposed as to the branch 
 roads, whether completed or not. We understand that the 
 Van Buren branch of the Atlantic and Pacific road has not 
 been completed, and by a fair construction of the laws the 
 Southern Pacific main line is also a branch of the Atlantic 
 and Pacific within the intendment of the act of 1866 and 
 under the general practice of the Land Office. 
 
 In the matter of the restoration under the Texas Pacific 
 forfeiture act (4 Land Dec's, 215) it was held that, to give 
 effect to the 9th section of the act of March 3, 1871, the pro- 
 viso to the 23d section must be construed as excluding from 
 the grant to the Southern Pacific line all lands falling with- 
 in the Texas Pacific limits. 
 
 The rule that " every intendment" of the statutes " must 
 be taken most strongly against the grantee and in favor of 
 the Government" was applied. That rule, we think, as ap- 
 plicable to grants similar to ours, is not sustained by the 
 decisions of the United States Supreme Court. A rea- 
 sonable interpretation, in view of the object of the grants 
 and to fulfill the intention of Congress to aid, by grants of 
 lands, the construction of railroads, is the rule of the Court. 
 The statutes (say the Court) are laws as well as grants. The 
 erroneous rule applied to the case, we think, led to an erro- 
 neous conclusion, and it may be said that, whether it be on 
 account of the inferior quality of the land involved, or the 
 public doubt of the correctness of the conclusion in that 
 case, or both (as we are credibly informed), the Government 
 has not sold any of the lands restored to market in accordance 
 with that decision of the Department. 
 
48 
 
 But we confidently claim that the rule that " every in- 
 tendment " of the statutes "must be taken most strongly 
 against the grantee, and in favor of the Government/' does 
 not apply to the statutes making grants of land to the 
 Southern Pacific Railroad Company, but a reasonble inter- 
 pretation, giving effect to the intention of Congress, should 
 be applied, keeping in view the main purpose of Congress, 
 to aid the construction of the designated roads. (118 U. S. 
 Rep. 682.) 
 
 It is true that the U. S. Supreme Court, in dealing with 
 the Des Moines river grant to Iowa, of August 8, 1846, (9th 
 Stat., p. 77) held that.a rule of strict construction in favor of 
 the grantor and against the grantee, must be adopted in 
 that case. The case was widely different from ours. The 
 Court there was determining the meaning of a clause in the 
 grant, which had been differently construed by different 
 officers of the Government of high official position and 
 great legal learning. It was cleaving a Gordian knot, and 
 to resolve the doubt arising from ambiguous words of grant 
 readily admitting of two different meanings, found that the 
 grantor was entitled to the benefit of the doubt. (Dubuque 
 and Pacific Co. vs. Litchfield, 23 Howard, 66.) 
 
 The question for solution was, whether or not the lands 
 then in contest were comprehended within the true intent 
 and meaning of doubtful and ambiguous words of grant. 
 But, in our case, the words of grant are plain, and they 
 mean and apply to the lands in controversy; and the ques- 
 tion is raised whether doubtful and ambiguous words in a 
 proviso defeat plain words of grant. If the rule of strict 
 construction applies, it applies to the proviso not to the 
 grant. 
 
49 
 
 The language of the Des Mcines decision was quoted by 
 the Court, in the subsequent case of L. L. & G. R. R. Co. vs. 
 the U. S., 92 U. S., Rep. 733. But in fact, the Court then pro- 
 ceeded to distinguish the case under decision from the former 
 case, and said, that the grant under consideration " does not 
 " extend beyond the intent expressed." " It should be neither 
 " enlarged by ingenious reasoning, nor diminished by 
 "strained construction. The interpretation must bereason- 
 " able, and such as will give effect to the intention of Con- 
 " gress. This is to be ascertained from the terms employed, 
 " the situation of the parties, and the nature of the grant. 
 " If these words are plain arid unambiguous, there can be 
 " no difficulty in interpreting them." 
 
 These expressions of the rule for interpretation are not in 
 conflict with our claims for the Southern Pacific Railroad 
 Company in this paper. We insist on such interpretation 
 as " will give effect to the intention of Congress." 
 
 The lands to whicli its grants apply were public lands 
 when the grants were made, and there is no ambiguity in the 
 terms of grant, or description of the lands granted. 
 
 THE INTENTION OF CONGRESS IN THE PREMISES. 
 
 We can stand upon the intention of Congress when the grant 
 was made, and adopt the proposition that "the interpretation 
 must be reasonable," and the grant should not be enlarged 
 by ingenious reasoning or " diminished by strained construc- 
 tion." 
 
 In Missouri, Kansas & Texas Co. vs. The Kansas Pacific 
 Co., 97 U. S. Rep's, at p. 497, speaking of the grant to the 
 last-mentioned company, the Court said : 
 
 " As to the intent of Congress in the grant to the plaintiff 
 " there can be no reasonable doubt. It was to aid in the 
 
50 
 
 " construction of the road by a gift of lands along its route, 
 " without reservation of rights, except such as were specially 
 " mentioned." 
 
 In that case the Court did not allow any inference to be 
 made to diminish the quantity of the lands, against the 
 effect of the words of grant. The only reduction that could 
 be made was the result of the exceptions specially mentioned. 
 The more granted land the more aid for construction, and 
 as aid to construction is the main object, the grant must be 
 construed in the light of a purpose to aid to the usual extent, 
 where there are no words to import another intention. In 
 aid of construction the grant is intended to carry all land 
 fairly coming within the words used to describe the lands. 
 
 The theory of construing these grants in the manner most 
 favorable to the United States and most unfavorable to the 
 companies, has some times been adopted by the executive 
 officers, but the Supreme Court has established the rule of a 
 reasonable construction to give effect to the intention of Con- 
 gress. 
 
 This rule of reasonable construction breathes in every line 
 of the late decisions of the U. S. Supreme Court in Buttz vs. 
 The Northern Pacific Railroad Company, hereinbefore cited, 
 and in the Kansas City, Lawrence and Southern Kansas 
 Company vs. the United States, 118 U. S. Rep., 682. 
 
 In the last-named case the United States adopted a tech- 
 nical construction of the laws, most favorable to the interests 
 of the Government and against the interests of its grantees, 
 and, therefore, the suit was instituted. But the U. S. Su- 
 preme Court unanimously applied the meaning and inten- 
 
 
51 
 
 tion of the grant, by a reasonable construction, as controlling 
 the case in favor of the rights of the railroad company. 
 
 See also United States vs. U. P. R. R. Co., 91 U. S. 
 
 Rep., p. 72 ; see also Platt vs. U. P. R. R. Co., 99 U. 
 
 S. Rep., p. 48; the Sinking Fund cases, 99 U. S. 
 
 Report, p. 700 at 719. 
 
 In the case in 91st U. S. Reports, the Court took into view 
 the entire scheme of the grant and the condition of public 
 affairs at and before the passage of the act, in reaching an 
 interpretation of the intention of Congress. 
 
 In the Platt case the Attorney General interfered on be- 
 half of the United States and made an argument in support 
 of a strict cosntru.ction and a corresponding ruling that had 
 then recently been made by the Secretary of the Interior in 
 the Dudymott case ; but the Court held that the primary 
 object of the Union Pacific land grant was to give aid to 
 the company "in and during the, construction of its road," and 
 the provisions of the act making the grant of lands were to 
 be interpreted so as to conform to that primary intention. 
 The ruling of the Secretary of the Interior was accordingly 
 reversed. 
 
 We call attention to the subjoined paragraph, 99 U. S. 
 Rep., p. 60 : 
 
 " We do not say that other incidental considerations were 
 " not kept in mind, but what we do assert, as plainly mani- 
 " fest in the legislation, is that the paramount intention of 
 " Congress was to give such assistance to the company as to 
 " induce them to build the road. Every other consideration 
 " was subordinate to that. 
 
 " All will concede that in construing the act of 1862 we are 
 " to look at the state of things then existing, and, in the 
 " light then appearing, seek for the purposes and objects of 
 tl Congress in using the language it did ; and we are to give 
 
52 
 
 
 
 " such construction to that language, if possible, as will 
 " carry out the congressional intentions. For what particular 
 "purpose, then, was the grant of lands made? The statute 
 " itself answers, ' for the purpose of aiding in the coustruc- 
 " tion of the railroad and telegraph line' and securing gov- 
 "ernmental transportation. 
 
 " The lands were granted to be used in furtherance of such 
 " construction. But Congress and the grantees must have 
 " known that when granted the lands were of little worth. 
 " They were unsalable at any price. Their value was 
 " whollv prospective, dependent upon the construction of the 
 " road."' 
 
 Every word of this quotation is directly applicable to this 
 case of the Southern Pacific Railroad Company. 
 
 In the Sinking-Fund cases, although the court sustained 
 the constitutionality of the Thurman sinking-fund act, they 
 said (the Chief Justice pronouncing the opinion). The 
 United States 
 
 " Cannot legislate back to themselves without making com- 
 " pensation for the lands they have given this corporation 
 " to aid in the construction of its railroad ; neither can they 
 " by legislation compel the corporation to discharge its obli- 
 " gation in respect to the subsidy lands otherwise than ac- 
 " cording to the terms of the contract already made in that 
 " connection. The United States are as much bound by 
 " their contracts as are individuals. If they repudiate their 
 " obligations it is as much repudiation, with all the wrong 
 " and reproach that term implies, as it would be if the repu- 
 " diation had been by a State, or a municipality, or a citizen. 
 " No change can be made in the title created by the grant 
 " of the lands or in the contract for the subsidy bonds with- 
 " out the consent of the corporation. All this is indis- 
 " putable." 
 
 99 U. S. Reports, at p. 719. 
 
 The Southern Pacific Company of California has fulfilled 
 the great condition of completing its roads and telegraphs 
 
53 
 
 
 
 opposite the lands in contest, and become entitled to its 
 lands by a contract, which the Government cannot repu- 
 diate. This is clear as to all the lands along its main line. 
 
 THE GRANT FOR THE BRANCH LINE. 
 
 As to the lands along the Branch line road, we contend 
 that in the presence of the forfeiture of a prior grant, the 
 proviso attached to the 23d section of the act of 1871, by a 
 fair interpretation, does not except the lands in conflict from 
 the effect of the grant. The opinion of the Assistant Attor- 
 ney General of November, 1885, was that the proviso had 
 the effect to except the lands forfeited by the Texas Pacific 
 Company from the grant to the Southern Pacific Branch 
 line road. 
 
 It is worthy of notice that since the date of that opinion, 
 November, 1885, the opinions of the Supreme Court have 
 been pronounced and published in three important cases. 
 
 117 U. S. Rep., 406, decided March 29, 1886. 
 
 118 U. S. Rep., 682, decided November 8, 1886. 
 
 119 U. S. Rep., 55, decided November 15, 1886. 
 
 These cases materially change the theory of interpreta- 
 tion adopted in November, 1885, by the Assistant Attorney 
 General. 
 
 He suggested a doubt of the proposition that the branch 
 line road had received a grant " or could demand an acre of 
 the land originally intended to be granted," because it could 
 not connect with the Texas Pacific road at the crossing of the 
 Colorado river. But it did build its road, on a line approved 
 by the Department of the Interior, to the point designated in 
 
54 
 
 the law of March 3, 1871, for a crossing of the Colorado 
 river, and the fact now is that it there made a connection 
 with another railroad, the assignee of the Texas Pacific Com- 
 pany, and established a connection of the city of San Fran- 
 cisco with the through line to New Orleans, thus fulfilling 
 the purpose of the grant as stated by Congress. Moreover, 
 in the case of the Kansas City, Lawrence and Southern 
 Kansas Company (118 U. S. Rep., at p. 693), the Court over- 
 ruled the contention of the United States that the grant 
 tailed because the road claiming the land had not built to 
 a junction with another railroad at the exact point designated 
 in the law, but to a point eight or ten miles therefrom. The 
 court said this contention gave " too narrow a construction " 
 of the language of the statute. They also said that the 
 " grant of lands would not be defeated if the other road did 
 " not build into the valley of the Neosho river at all, and 
 " yet, if the strict and literal construction of the phrase 
 " where the road enters the valley should be adopted, that 
 " would be the effect upon the grant." 
 
 This doctrine of the United States Supreme Court would 
 secure the grant to our branch line if it did not connect with 
 a railroad crossing the Colorado at the designated point. 
 But it does connect, only the other railroad, an assignee of 
 the Texas Pacific, is not called the Texas Pacific, though 
 built along the line thereof and effecting a great southern 
 through line of transportation, which was the main object 
 of Congress in making a grant to the Texas Pacific Com- 
 pany. 
 
 But these cases also establish the rule of a reasonable con- 
 struction to meet the substantial intention expressed by 
 Congress, without narrowness, straining, or construing " every 
 
55 
 
 intendment of the granting statute most strongly against 
 the grantee, and in favor of the Government." 
 
 We come now to the 23d section of the act of 1871 : 
 
 " SEC. 23. That for the purpose of connecting the Texas Pacific 
 " railroad with the city of San Francisco, the Southern Pacific 
 " Railroad Company of California is hereby authorized (sub- 
 ject to the laws of California) to construct a line of railroad 
 " from a point at or near Tehachapa Pass, by way of Los 
 " Angeles, to the Texas Pacific railroad, at or near the Col- 
 " orado river, with the same rights, grants, and privileges, 
 " and subject to the same limitations, restrictions, and con- 
 " ditions as were granted to said Southern Pacific Railroad 
 " Company of California by the act of July 27, 1866. Pro- 
 "vided, however, That this section shall in no way affect or 
 " impair the rights, present or prospective, of the Atlantic 
 " and Pacific Railroad Company, or any other railroad com- 
 " pany." 
 
 Approved March 3, 1871. 
 
 This section, in effect, as to this line of road and its con- 
 struction, the aid given therefor by the United States, and 
 the conditions imposed upon the company, repeats the law 
 of 1866, substituting in sections 3, 4, &c., the " Southern 
 Pacific Railroad Company of California," instead of the At- 
 lantic and Pacific Railroad Company. (Case of H. J. Dull, 
 10 Sawyer's Reps., 506.) 
 
 By section 3 it is enacted that there be and is hereby 
 granted, &c., ten alternate sections of land per mile, on the 
 line thereof, &c. 
 
 The 23d section gave the same rights, grants, and privi- 
 leges, with a proviso that the donation shall not impair the 
 rights of the Atlantic and Pacific Company. " Grants " are 
 not mentioned in the proviso. That was not necessary, 
 for as to land the Atlantic and Pacific had a prior grant, on 
 
56 
 
 compliance with which that company might have taken 
 title to land. The proviso does not make the grant of land 
 subject to the land grant to the other company, and therefore, 
 the lands are not affected by the proviso. They stand on the 
 force of the respective grants. It is more consistent with the 
 intention and policy of Congress to infer that no exception 
 from the terms offered to one company was intended, if the 
 other should never build a road. No exception of that kind 
 is expressed, and the offers to the two companies were upon 
 an entire equality. 
 
 That a few grants had been made under which no roads 
 were built was a fact known to Congress, and it did not in- 
 tend to deprive our company of all inducement to build its 
 road, with the certainty before it that it could not thereby 
 have its corresponding quota of land ; but intended to leave 
 the subsequent grantee to the chances of acquiring the land 
 if the first grantee did not. For the chances were even then 
 quite good. In March, 1871, the Atlantic and Pacific Com- 
 pany had located its line for only about 75 miles in the 
 State of Missouri, whilst the Southern Pacific had located 
 the whole of its main line, had the location confirmed by 
 the joint resolution of 28th June, 1870, and had completed 
 30 miles of its road. 
 
 We intended to do something. It was clear that the other 
 company was doing nothing commensurate with the great- 
 ness of the enterprise entrusted to it. There was reason, 
 therefore, for the policy of Congrees, manifest on the surface 
 of the acts, to offer the lands in California to the branch 
 line road for its construction in case the first grant should 
 not be effectual ; and we have shown from the decisions of 
 the U. S. Supreme Court herein cited, that the grant does 
 
57 
 
 not bestow title or the right to a patent until the road has 
 been built. The title to the land remains in the United 
 States, subject to appropriation by the subsequent grantee 
 who fulfills the law. 
 
 We repeat that in section 23 of the act of 1871, grants 
 were made to us, and if lands had been excepted from grants 
 (not under section 3, but by the proviso to section 23), they 
 ought to have been, and would have been named. The proviso 
 is silent as to the "grant" to the other company, but saves 
 its "rights." And here the forfeiture act of July 6, 1886, 
 fits in, and continues to that company its most important 
 "rights," but forfeits its land grant along uncompleted por- 
 tions of road. 
 
 The word "rights," by fair intendment, does not include 
 a land grant, especially where it is in close conjunction with 
 the word "grants" the grants being made, however, to our 
 company, and the "rights" saved to the other. 
 
 Some of the rights of that company, on March 3, 1871, 
 were to locate its line, to build it, and to acquire lands op- 
 posite constructed road. These rights it has enjoyed in great 
 part, but whatever else it may now do in California, consis- 
 tently with the forfeiture act, it can no longer acquire lands by 
 building its road there. The forfeiture act has set aside its 
 land grant in that locality, and there is now no obstacle in 
 the proviso to section 23, to the full adjustment of the land 
 grant thereby made to our company. 
 
 But here we remark that however the Department may 
 now deal with the various questions of ultimate right secured 
 to our company by building the branch line road, this 23d 
 section makes the 6th section of the act of 23d July, 1866, 
 applicable to said branch line road, and that said road had 
 8 
 
58 
 
 been located and the location approved by the Secretary of 
 the Interior, and the maps of the withdrawn limits filed in 
 the local land office, so that the withdrawal to the twenty 
 and thirty-mile limit had been established, before a location 
 was made by the other company. 
 
 The withdrawal taking effect by statute cannot be revoked 
 in the absence of statutory authority, as shown in the first 
 part of this brief. 
 
 It is plain that this 23d section of the act of 1871, has 
 made a grant of lands along a route geographically ascer- 
 tained by the location and building of a railroad. 
 
 If the proviso excepts lands from the grant, the exception 
 ought to be within the words and meaning of the proviso. 
 If the grant may well be sustained, so that the proviso does 
 not disturb it, that construction should be adopted. 
 
 In Ryan vs. Carter, 93 U. S. Reps., p. 78, at p. 83, the 
 United States Supreme Court said : 
 
 " But this exception is not within the reason of the pro- 
 " viso, and the Court is at liberty to adopt another construc- 
 " tion, if it may be fairly done, by giving full and just effect 
 " to the words used. 
 
 " The general rule of law is, that a proviso carves special 
 " exceptions only out of the body of the act, and those who 
 " set up any such exception must establish it as being within 
 " the words as well as the reason thereof." 
 
 United States vs. Dickson, 15 Pet., 165. 
 
 " Why should Congress wish to exclude Dodier's title, if 
 " it did not conflict with any other, and was embraced by 
 " the general words of the statute." 
 
 The course of reasoning by the Court in this case sustains 
 our position that "lands" not being named in the proviso 
 to the 23d section of the act of 1871, are not affected by it. 
 
59 
 
 The words of the proviso may well have full and fair 
 meaning without construing them in a way to impair our 
 land grant. If they affect our grant, how then? They 
 would cause our grant to he rough and jagged on the edges, 
 to almost disappear in some places, and then appear in 
 others ; though the law has made it on the line of a railroad, 
 with limits equi-distant on both sides of the road, and has 
 increased the price of all even sections, for like equal dis- 
 tance, because alternate to granted ones. 
 
 The entire theory of railroad land grants, and the prac- 
 tice of fifty years by Congress, are inconsistent with the 
 making of a land grant, by the law, in such a shape and 
 form as ours would appear, if lands withdrawn for the other 
 company are exempted from our grant. As our grant was 
 first located there would be no certainty in the lands granted 
 by the law itself, if it excepted lands from grants in a place 
 which had no place at the time of our location. There is 
 certaint}^ in the grant, but no certainty in the supposed ex- 
 ception. This would not be a reasonable construction of the 
 proviso. The word "rights" in the proviso is not equiva- 
 lent to the word "lands" in the grant, and the exception in 
 favor of " rights " does not except " lands." 
 
 This is the fair meaning of the 23d section of the act of 
 1871, and agrees fully with the purpose of the forfeiture act, 
 the effect of which is limited to the "lands" granted the 
 Atlantic and Pacific road, and does not deal with the rights 
 and franchises of that corporation, or the lands of the 
 Southern Pacific Railroad Company of California. 
 
60 
 
 THE RIGHT OF THE SOUTHERN PACIFIC RAILROAD COMPANY 
 OF CALIFORNIA TO INDEMNITY LANDS CONSIDERED. 
 
 Keeping in view the imminent question, and the only 
 one that is of immediate exigency, "Shall any restoration of 
 lands be ordered that will disturb the withdrawals for the benefit 
 of the Southern Pacific Railroad Company of California f " we 
 remark that our grants are of lands by quantity; the quantity 
 determined by the amount of public land within the twenty- 
 mile limits when the maps of route were accepted, and that 
 the records of the Department show that we can never ob- 
 tain the quantity granted on either line of road. 
 
 The grant is in. these words: 
 
 " There be, and is hereby, granted * * * every alter- 
 " nate section of public land, not mineral, designated by odd 
 " numbers, to the amount of twenty alternate sections per 
 " mile on each side of said railroad line, as said company may 
 " adopt, through the territories of the United States, and ten 
 " alternate sections of land per mile'on each side of said rail- 
 " road whenever it passes through any State, and whenever, 
 " on the line thereof, the United States have full title, not 
 " reserved, sold, granted, or otherwise appropriated and free 
 " from pre-emption or other claims or rights at the time the 
 " line of said road is designated by a plat thereof filed in 
 " the office of the Commissioner of the General Land Office; 
 " and whenever, prior to said time, any of said sections or 
 " parts of sections shall have been granted, sold, reserved, 
 " occupied by homestead settlers or pre-empted or otherwise 
 " disposed of other lands shall be selected by said company 
 " in lieu thereof, under the direction of the Secretary of the 
 " Interior, in alternate sections, and designated by odd num- 
 " bers, not more than ten miles beyond the limits of said 
 " alternate sections, &c." 
 
 This indemnity is unusually liberal, probably because of 
 the denial of money subsidy along a route so difficult of con- 
 
61 
 
 struction. It gives lieu lands for the lands " granted prior 
 to said time," as well as for those of other descriptions, for 
 which indemnity is usually given. 
 
 The provision for indemnity covered the losses already 
 then known to exist, as well as those to be ascertained in 
 future under the exceptions from the grant. It covered the 
 known loss by conflict with the prior grant and withdrawal 
 for the Central and Western Pacific roads twenty-five miles 
 off one end of our road and the State swamp grant under 
 the acts of 28th September, 1850, and the supplemental law 
 of 23d July, 1866; the latter act, in the minds of the Land 
 Committees, at the time resulting in this allowance of in- 
 demnity for swamp lands confirmed to the State by a prior 
 law of the same session of Congress. 
 
 It is also true that large quantities of land along the first 
 fifty miles of the Southern Pacific main line and along the 
 branch line north and south of Los Angeles had been sold 
 and located prior to the grant, and large areas were covered 
 by Mexican grants, so that only a small percentage of the 
 quantity of the grant could be found opposite the completed 
 road in those localities. 
 
 That the grant is one of quantity per mile of road is made 
 plain by the decision of the United States Supreme Court in 
 the case of the Burlington and Missouri River Railroad vs. 
 The United States (98th U. S. Reps., 334). The words of 
 grant therein construed were as follows, the terms being 
 similar to those in the grant to the Southern Pacific Railroad 
 Company of California : 
 
 " Every alternate section of public land (except mineral 
 11 lands as provided in this act) designated by odd numbers, 
 " to the amount of ten alternate sections per mile on each 
 " side of the said road, on the line thereof, and not sold, re- 
 
62 
 
 " served, or otherwise disposed of by the United States, and 
 " to which a pre-emption or homestead claim may not have 
 " attached at the time the line of said road is definitely 
 " fixed." 
 
 In rendering the decision, the United States Supreme 
 Court said, construing the above words of grant: 
 
 " The position that the grant to the company was only of 
 " land situated within twenty miles of the road, finds no support 
 " in the language of the act of Congress. TJiat simply declares 
 11 that a grant is made of land to the amount of ten sections per 
 " mile on each side of the road. The grant is one of quantity, 
 " and the selection of the land is subject only to the limita- 
 " tions, which the learned justice proceeds to enumerate as 
 " applicable to that case." 
 
 The limitations in the case of the Southern Pacific road 
 are slightly different. They require that the indemnity 
 lands shall not be further than thirty miles from the road. 
 
 Our grant is of twenty sections per mile, but, in fact, it 
 will be less, because the selections are limited to the strip of 
 ten miles wide beyond the granted limits. 
 
 It will be here noticed that immediately upon the filing 
 of our map of main line, the Secretary of the Interior, Mr. 
 Browning, March 19, 1867, in his letter of that date to the 
 Commissioner of the General Land Office (see Appendix) 
 construed this grant as one of odd sections within twenty 
 miles of the road, and the ten additional miles as limiting 
 the boundaries from which the indemnity lands must be 
 taken. The construction then given has since been main- 
 tained by the Land Department Secretary Cox expressly 
 affirmed it. (See orders of July 29, 1870, Appendix No. 3). 
 
 Secretary Cox's direction that the withdrawal of March 
 22, 1867, should be maintained and respected, was the ap- 
 
63 
 
 propriate interpretation of the Joint Resolution of 28th June, 
 1870, hereinbefore quoted. 
 
 It is a fact, also, that it has been decided directly by the 
 action of the Secretary upon an official report of the Com- 
 missioner of the General Land Office, that our grant is one 
 of quantity per mile, with the limitations indicated. 
 
 See the report of the Commissioner of the General Land 
 Office to the Secretary, May 21, 1880, (Appendix No. 6); 
 sanctioned by the Secretary by the approval of the list there- 
 with submitted, on the 19th of July, 1880. 
 
 See also Land Office Report, p. 27, March, 1882. House 
 Ex. Doc. 144, 47th Congress, 1st session, p. 28. 
 
 In the Annual Report of the General Land Office for 
 1875, at p. 409, we find the "estimated quantity embraced 
 in the limits of the grant" on the main line of our road to 
 be 6,000,000 acres, and the " estimated quantity which the 
 company will receive from the grant " to be 3,750,000 acres. 
 
 The grant to the Branch Line road within limits is esti- 
 mated (same report arid page) at 3,520,000 acres, of which 
 the company will receive 3,000,000 acres. It is thus plain 
 that the full quantity of each grant is cut short by the 
 selecting limits, so that if the complications with the Atlantic 
 and Pacific location were out of the way, our roads could 
 not obtain the quantity granted. 
 
 These estimates were made without any deductions from 
 quantity, because of the Atlantic and Pacific land grant. 
 
 The withdrawal of indemnity lands ought, therefore, on 
 every principle of right, to be continued until the settlement 
 of the grant. The company has obtained, up to this time, 
 on its main line, patents for only 1,040,430 acres of land, 
 and up to 30th June, 1885, only 187,719 acres had been 
 
64 
 
 patented along the Branch line. (See Annual Report of the 
 General Land Office for 1885, p. 193.) 
 
 In the case of Cedar Rapids Railroad Company vs. Her- 
 ring el al. (110 U. S. Rep., p. 27), owing to a change in legis- 
 lative enactments and a change in the route of the railroad, 
 the question of quantity became material. The plaintiff in 
 error claimed the right to quantity along the line of origi- 
 nal location, 345 miles; the defendants in error urged that 
 they were entitled only on the line constructed, 271 miles 
 long. The supreme court of Iowa and the United States 
 Supreme Court upheld the contention of the defendants, and 
 in deciding the case (p. 35) the Court says : 
 
 " It is believed that in no instance of the many grants of 
 " public lands made by Congress to aid in building railroads 
 " has the quantity been measured by any other rule than 
 " the length of the road constructed or required to be con- 
 " structed by the grantee or its privy, and it would be the 
 " first departure from this principle known to us, if in this 
 " case Congress intended to give the same amount per mile 
 " of land for road not constructed." 
 
 If we apply this principle to the case of the Southern 
 Pacific Railroad Company, it appears that for its grant of 
 land per mile of road actually constructed it will be entitled 
 to quantities as follows : 
 
 On main line, completed road, 474.42 miles. Twenty sec- 
 tions per mile or 12,800 acres amounts to 6,072,576 acres of 
 land. 
 
 Branch line, completed, 346.96 miles of road, acquired 
 12,800 acres per mile, or 4,441,088 acres. 
 
 To these large quantities of land we had fully acquired 
 the right to have patents before the forfeiture act of July, 
 1886, was passed. These figures show that no restoration to 
 
65 
 
 market of any withdrawn lands could properly be made, if the 
 Department had the power to make it. 
 
 If we are to regard the mention of the six several descrip- 
 tions of land in the Commissioner's letter, as an intimation 
 that some construction may be placed on the said forfeiture 
 act which may deprive our company df a portion of its 
 lands, we here resolutely protest against it, because the ex- 
 ecutive department is bound to maintain the indemnity 
 withdrawal to the last acre, so long as it is shown that we 
 cannot, under the most favorable circumstances, obtain the 
 quantity of our grants. 
 
 No lands within our limits can be restored, because under 
 the varied provisions of our grants we are now entitled to 
 select all agricultural lands found vacant within our limits. 
 Though the mineral lands within the limits of the grant are 
 excluded therefrom, they go to increase the quantity of the 
 indemnity, for within twenty miles of our lines we have a 
 right to select, as indemnity for mineral lands within the 
 grant (under Sec. 3, act of 1866) any agricultural public 
 lands to be found at the time of selection. Such agricultu- 
 ral lands as may be found to have been excepted from our 
 grants at the time of definite location of the routes will be 
 liable to selection by the company, if afterwards restored to 
 the public domain, and they ought, therefore, to be held as 
 withdrawn until final settlement of the grant. 
 
 So, too, if by any technicality it might be found that a 
 few thousand acres within the granted limits have not been 
 acquired by the Southern Pacific Company, by so many 
 acres as the grant in limits is reduced, by the same number 
 of acres would the indemnity claim be increased, so that it 
 would seem to be of little moment to the United States to 
 9 
 
66 
 
 / 
 withhold any lands from our patents, on any such basis as 
 
 that. 
 
 The question, therefore, here arises, of what use will it be to 
 the Government 1 to restore lands to market, which it will be 
 the duty of the Department immediately to withdraw again, 
 or withhold for the settlement of the indemnity due our 
 company, for it is a great fact, plainly shown by the official 
 reports and records, that on the very best possible basis of 
 settlement, we will not get the quantity of land which the 
 grant was intended to give us "in consideration" of build- 
 ing the roads and telegraphs. 
 
 In regard, generally, to the administration of grants for 
 internal improvements, the action of Congress in former 
 years shows that the intention of that branch of the Govern- 
 ment which, under the Constitution, has the power to grant 
 public lands has been, that the grantees should have the 
 fullest quantity to which they had the shadow of a claim. 
 
 The first important grant was to the State of Indiana for 
 the Wabash and Erie canal. (4 Stat., 236.) This grant was 
 supplemented by four, if not more, subsequent laws to " make 
 " the full amount equal to one-half of five sections in width 
 " on each side of said canal." 
 
 Act May 9th, 1848, 9 Stat., 219'. 
 
 The canal grant to Ohio was by act of 24th May, 1828. 
 (4 Stat., 305.) 
 
 Supplemental laws in aid were afterwards enacted until, 
 by section 3 of the act of 31st August, 1852 (10 Stat., 143), 
 the State became entitled to the full half of five sections in 
 width on each side. 
 
67 
 
 The policy of enlarging railroad land grants, that they 
 may have the the full quota originally expected, or more, has 
 been a settled policy of Congress. The Union Pacific grant 
 was enlarged, and its promised benefits to the companies in- 
 creased in many ways, by legislation supplemental to the 
 original grant. The indemnity limits of the Northern 
 Pacific grant were enlarged by the act of 1870. 
 
 The grants for some of the roads in the following States, 
 made between 1852 and 1857, were enlarged in 1864 and 
 1866, either directly or indirectly: Arkansas, Missouri, Iowa, 
 Wisconsin, Minnesota, and Kansas. 
 
 Whilst thus the policy of Congress to deal liberally, and 
 concede the last acre of indemnity claimed under the origi- 
 nal grants, has been uniformly displayed through a period 
 of more than forty years, there is no call upon the Executive 
 to take any action looking to the curtailment of the claims 
 rightfully set up under our grants after the company has 
 fulfilled its obligations to the United States. Certainly no 
 doubtful authority should be exercised in a case where Con- 
 gress has had the fullest opportunity and plainest observa- ' 
 tion in the premises, and has not only given no direction, 
 but, by plain inference, has said that completed road should 
 retain all rights acquired under the law of the grant. 
 
 RESUME. 
 
 A grant of lands for aid in building a railroad, as deter- 
 mined by decisions of the United States Supreme Court, 
 attaches to particular lands upon the filing and acceptance 
 by the Department of a map of definite location. 
 
 Then the specific lands are located, by which the quan- 
 tity is ascertained and the limits of the granted and indem- 
 
68 
 
 nity selections are determined. But by the definite location, 
 however, an absolute right to the title of the lands was not obtained. 
 In the case of a railroad, aided by the grant of July 27, 
 1866, the title to lands could only be had by full compliance 
 with the terms of section 4. When absolute title is vested 
 it is beyond the power of Congress to declare a forfeiture. 
 
 Therefore it appears most conformable to the law, as set- 
 tled by authoritative decisions, to say that the declarations 
 of forfeiture and restoration did not do more than bring 
 back the forfeited lands to the status they were in when the 
 right, whatever it was, of the Atlantic and Pacific Company 
 attached. 
 
 If this is correct, the removal of the withdrawals for that 
 company, made in 1872 arid 1874, leaves in full force now 
 the prior withdrawals for the Southern Pacific Company 
 made in 1867 and 1871, and the Government is now under 
 obligation to proceed with patenting the lands to the South- 
 ern Pacific Railroad Company. 
 
 It will be noticed that as our lines of roads were located 
 before the definite location of the line of the Atlantic and 
 Pacific Company in California, the location of the latter was 
 made by its officers, with a full knowledge of the existing 
 withdrawals for the benefit of the Southern Pacific Company 
 and of the resulting conflict in limits. 
 
 The location might have been made with far less of con- 
 flict, and, had it been possible to so locate that there would 
 be no conflict whatever, the other terms of the law of grant 
 were such that the grantees might have earned separate 
 grants in full quantity under the same law. 
 
 It is, therefore, fully consonant with the spirit of. the law 
 for one grantee, in the absence of a location by the other, to 
 
69 
 
 take what the law gives him without any abatement that 
 is, it is fully conformable to the terms and conditions of 
 grant that the grantee, complying fully, should receive its 
 full complement of lands. 
 
 There is no reason, in the nature of the case, why, on the 
 failure of the Atlantic and Pacific Railroad Company to 
 build any road, the Southern Pacific Railroad Company 
 should have any less by compliance than it would get in the 
 case supposed. 
 
 Nay, there is the strongest reason why it should have all 
 its claim, because by building its roads it has secured, to a 
 great extent, the public objects that Congress had in view 
 in making both the grants. Not only have the specified 
 roads been built in California, but the lines of railroad ex- 
 tending from the western portions of the Atlantic States to 
 the Pacific Ocean have been completed so as to facilitate the 
 commerce of this nation with China and Japan, and to 
 secure by means of rapid transportation a better protection 
 of the cities and settlements of our people on the Pacific 
 coast from foreign attack and internal commotion. 
 
 Congress, by the charter and grant to the Atlantic and 
 Pacific Company, intended to secure, as a national object, 
 the construction of a trans-continental road. By the line 
 of the Atchison, Topeka and Santa Fe road, in Kansas and 
 New Mexico, and the Atlantic and Pacific road, in New 
 Mexico and Arizona, and the Southern Pacific main line in 
 in California, combined, this intention has been realized, 
 and a railroad from St. Louis to San Francisco was opened 
 in October, 1883, and is now in good order and constant 
 use. 
 
70 , 
 
 The Atchison, Topeka and Santa Fe Company has re- 
 ceived its full grant in Kansas, the Atlantic and Pacific is 
 left in possession of the full quantity of its grant of lands 
 in New Mexico and Arizona. Why then is not the South- 
 ern Pacific in justice and right, as well as in law, entitled 
 to the full quantity of its grants in California ? In the view 
 of meeting the expressed wishes and designs of Congress by 
 construction of its road, as in part a substitute for the con- 
 templated road of the defaulting Atlantic and Pacific Com- 
 pany in California, its right to all it claims appears to be 
 stronger now than it could be under any other circumstances. 
 
 If under such circumstances the United States shall refuse 
 the full, just, and earned compensation, a wrong will be done 
 to our company by a discrimination against it, where Con- 
 gress evidently intended that it should be on an equality 
 with others. The result would be unworthy of a great and 
 magnanimous nation, and would involve the Government 
 and the railroad company, both, in perplexity, if not 
 disaster. 
 
 It cannot be fairly implied that Congress intended to 
 grant and secure to our compaay for building the western 
 end of this transportation line less than half the quantity of 
 land per mile that is given to the Atlantic and Pacific Com- 
 pany for building the central part of the same road in the 
 same manner and with like equipments. 
 
 The law expressly gives to that company " twenty alter- 
 nate sections per mile on each side of said railroad line 
 through the Territories of the United States," and to our 
 company " ten alternate sections per mile on each side " 
 where it passess through a State. 
 
 We can see no good reason why, after this forfeiture, or 
 
71 
 
 by reason of it, the United States should seek to place the 
 Southern Pacific Company in any worse condition, or the 
 Government in any better condition, if that be supposed to 
 be possible, than they were in before the location of route 
 by the Atlantic and Pacific, or than they would now be 
 in if that location of route had never been made. 
 
 The Government, by its agreements or transactions with 
 a third party without our consent, could not excuse itself 
 from the fulfillment of its contract with our company, which 
 in substance was that we should receive so much land per 
 mile in aid of construction of our roads. 
 
 We here remark that it is also true that the branch line 
 of the Southern Pacific Company from Tehachapa Pass to 
 Fort Yuma has been completed within the time required 
 by the law of the grant, and constitutes the western end of 
 a trans-continental railroad line, which was opened January 
 15, 1883, from New Orleans to Los Angeles and San Fran- 
 cisco, as contemplated by the 23d section of the act of March 
 3, 1871. 
 
 The Government has received, and is receiving, the ben- 
 efits arising from these through lines for the transportation 
 of mails, troops, munitions of war, supplies, diplomatic and 
 special agents, &c. In its land service it has received and 
 is receiving double minimum prices for all even sections 
 alternate to the odd sections within twenty miles of the lines 
 of road, so that the grant of lands results in no loss of cash 
 receipts. 
 
 In fact, the lands now being taken up in California are 
 largely those along the lines of these and other land grant 
 roads, showing, what would be naturally inferred in the 
 
72 
 
 absence of direct proof, that settlements are chiefly made 
 on public lands lying in the vicinity of means of transpor- 
 tation. 
 
 The roads have thus contributed and are contributing 
 largely to the development of the resources of the country 
 and the prosperity of the State of California. 
 
 Exaggerated statements have been published, and very 
 many people have been misled and prejudiced in reference 
 to the extent of these grants. 
 
 That they are not insignificant is true, and that Congress 
 intended they should not be, is just as true. Congress has 
 the constitutional power to make the grants, but the execu- 
 tive branch of the Government has no power to curtail them 
 because they are ample. It has been under the liberal 
 offers of aid by Congress that the roads have been built 
 through unpropitious regions. 
 
 As to the roads of the Southern Pacific in California, they 
 were to be located and built through a country at the time 
 mostly unsettled and unsurveyed, in some places moun- 
 tainous and in others barren. This was known to Congress, 
 and the fact of a liberal grant must be credited to the wise 
 policy of aiding internal improvements by the grant of 
 public lands, a policy nearly as old as the land system now 
 rapidly approaching its first centennial. 
 
 For the foregoing reasons the Government is in duty 
 bound to concede now to the Southern Pacific Railroad 
 Company of California the full benefits of its land grants. 
 
 A fair Construction of the terms of grant leads to the con- 
 clusion that the right of said company to lands within the 
 prescribed limits and of the specified quantity has fully 
 vested and cannot rightfully be disturbed. 
 
73 
 
 Therefore no order should be made by the Secretary to 
 disturb the withdrawals of lands in California made for the 
 benefit of the Southern Pacific Railroad Company. The 
 orders of restoration of December 15, 1886, are all that the 
 forfeiture act will justify. 
 
 Very respectfully, &c., 
 
 HENRY BEARD, 
 Attorney for the Southern Pacific R. R. Co. 
 
 of California. 
 
 10 
 
APPENDIX. 
 
 INDEX TO APPENDIX. 
 
 Extracts from the law of the grant No. 1 
 
 Supplemental acts " 2 
 
 Southern Pacific withdrawals ll 3 
 
 Atlantic and Pacific withdrawals " 4 
 
 Southern Pacific withdrawals (Branch line) " 6 
 
 Extracts from Keport of the General Land Office to the Secretary of 
 
 the Interior as to the nature of Southern Pacific indemnity grant-. " 6 
 
 (75) 
 
No. 1. 
 
 Extracts from the act entitled "An act granting lands to 
 aid in the construction of a railroad and telegraph line 
 from the States of Missouri and Arkansas to the Pacific 
 coast." (14 Stat, 292.) 
 
 SEC. 3. And be it further enacted, That there be, and hereby 
 is, granted to the Atlantic and Pacific Railroad Company, 
 its successors and assigns, for the purpose of aiding in the 
 construction of said railroad and telegraph line to the Pa- 
 cific coast, and to secure the safe and speedy transportation 
 of the mails, troops, munitions of war, and public stores 
 over the route of said line of railway and its branches, every 
 alternate section of public land, not mineral, designated by 
 odd numbers, to the amount of twenty alternate sections per 
 mile on each side of said railroad line, as said company may 
 adopt, through the Territories of the United States, and ten 
 alternate sections of land per mile on each side of said rail- 
 road whenever it passes through any State, and whenever, 
 on the line thereof, the United States have full title, not re- 
 served, sold, granted, or otherwise appropriated, and free 
 from pre-emption or other claims or rights, at the time the 
 line of said road is designated by a plat thereof filed in the 
 office of the Commissioner of the General Land Office ; and 
 whenever, prior to said time, any of said sections or parts of 
 sections shall have been granted, sold, reserved, occupied by 
 homestead settlers, or pre-empted, or otherwise disposed of, 
 other land shall be selected by said company in lieu thereof, 
 under the direction of the Secretary of the Interior, in alter- 
 nate sections, and designated by odd numbers, not more 
 than ten miles beyond the limits of said alternate sections, 
 and not including the reserved numbers: Provided, That if 
 said route shall be found upon the line of any other rail- 
 road route, to aid in the construction of which lands have 
 been heretofore granted by the United States, as far as the 
 routes are upon the same general line, the amount of land 
 heretofore granted shall be deducted from the amount 
 granted by this act : Provided further, That the railroad com- 
 pany receiving the previous grant of land may assign their 
 interest to said "Atlantic and Pacific Railroad Company," or 
 
78 
 
 may consolidate, confederate, and associate with said com- 
 pany upon the terms named, in the first and seventeenth 
 sections of this act : Provided further, That all mineral lands 
 be, and the same are hereby, excluded from the operations 
 of this act, and in lieu thereof a like quantity of unoccupied 
 and unappropriated agricultural lands in odd-numbered 
 sections nearest to the line of said road, and within twenty 
 miles thereof, may be selected as above provided : And pro- 
 vided further, That the word " mineral," when it occurs in 
 this act, shall not be held to include iron or coal : And pro- 
 vided further, That no money shall be drawn from the 
 Treasury of the United States to aid in the construction of 
 the said "Atlantic and Pacific railroad." 
 
 SEC. 4. And be it further enacted, That whenever said At- 
 lantic and Pacific Railroad Company shall have twenty-five 
 consecutive miles of any portion of said railroad or tele- 
 graph line ready for the service contemplated, the President 
 of the United States shall appoint three commissioners to 
 examine the same, who shall be paid a reasonable compen- 
 sation for their services by the company, to be determined 
 by the Secretary of the Interior ; and if it shall appear that 
 twenty-five consecutive miles of said road and telegraph line 
 have been completed in a good, substantial, and workman- 
 like manner, as in all other respects required by this act. the 
 commissioners shall so report under oath to the President of 
 the United States, and patents of lands, as aforesaid, shall be 
 issued to said company confirming to said company the 
 right and title to said lands situated opposite to and coter- 
 minous with said completed section of said road. And from 
 time to time, whenever twenty-five additional consecutive 
 miles shall have been constructed, completed, and in readi- 
 ness, as aforesaid, and verified by said commissioners to the 
 President of the United States, then patents shall be issued 
 to said company conveying the additional sections of land, 
 as aforesaid, and so on, as fast as every twenty-five miles of 
 said road is completed as aforesaid. 
 
 SEC. 5. And be it further enacted, That said Atlantic and 
 and Pacific railroad shall be constructed in a substantial and 
 workmanlike manner, with all the necessary draws, culverts, 
 bridges, viaducts, crossings, turn-outs, stations, and water- 
 ing-places, and all other appurtenances, including furniture 
 and rolling-stock, equal in all respects to railroads of the 
 first class when prepared for business, with rails of the best 
 
79 
 
 quality, manufactured from American iron ; and a uniform 
 gauge shall be established throughout the entire length of 
 the road ; and there shall be constructed a telegraph line of 
 the most substantial and approved description, to be oper- 
 ated along the entire line : Provided, That the said company 
 shall not charge the Government higher rates than they do 
 individuals for like .transportation and telegraphic service. 
 And it shall be the duty of the Atlantic and Pacific Rail- 
 road Company to permit any other railroad which shall be 
 authorized to be built by the United States, or by the Legis- 
 lature of any Territory or State in which the same may be 
 situated, to form running connections with it, on fair and 
 equitable terms. 
 
 SEC. 6. And be it further enacted, That the President of the 
 United States shall cause the lands to be surveyed for forty 
 miles in width on both sides of the entire line of said road 
 after the general route shall be fixed, and as fast as may be 
 required by the construction of said railroad, and the odd 
 sections of land hereby granted shall not be liable to sale 
 or entry or pre-emption before or after they are surveyed, 
 except by said company, as provided in this act ; but the 
 provisions of the act of September, eighteen hundred and 
 forty-one, granting pre-emption rights, and the acts amend- 
 atory thereto, and of the act entitled "An act to secure home- 
 steads to actual settlers on the public domain," approved 
 May twentieth, eighteen hundred and sixty-two, shall be, 
 and the same are hereby, extended to all other lands on the 
 line of said road when surveyed, excepting those hereby 
 granted to said company. 
 
 SEC. 8. And be it further enacted, That each and every 
 grant, right, and privilege herein are so made and given to 
 and accepted by said Atlantic and Pacific Railroad Com- 
 pany upon and subject to the following conditions, namely: 
 That the said company shall commence the work on said 
 road within two years from the approval of this act by the 
 President, and shall complete not less than fifty miles per 
 year, after the second year, and shall construct, equip, fur- 
 nish, and complete the main line of the whole road by the 
 fourth day of July, anno Domini eighteen hundred and 
 seventy-eight. 
 
 SEC. 9. And be it further enacted, That the United States 
 make the several conditional grants herein, and the said 
 Atlantic and Pacific Railroad Company accept the same, 
 
80 
 
 upon the further condition that if the said company 
 make any breach of the conditions hereof, and allow the 
 same to continue for upwards of one year, then, in such 
 case, at any time hereafter, the United States may do any 
 and all acts and things which may be needful and necessary 
 to insure a speedy completion of the said road. 
 
 SEC. 11. And be it further enacted, That said Atlantic and 
 Pacific railroad or any part thereof shall be a post route 
 and military road, subject to the use of the United States for 
 postal, military, naval, and all other Government service, 
 and also" subject to such regulations as Congress may impose 
 restricting the charges for such Government transportation. 
 
 SEC. 12. And be it further enacted, That the acceptance of 
 the terms, conditions, and impositions of this act by the said 
 Atlantic and Pacific Railroad Company shall be signified in 
 writing under the corporate seal of said company, duly exe- 
 cuted pursuant to the direction of its board of directors first 
 had and obtained, which acceptance shall be made within 
 two years after the passage of this act, and not afterwards, 
 and shall be deposited in the office of the Secretary of the 
 Interior. 
 
 No. 2. 
 
 Joint Resolution Concerning the Southern Pacific Railroad of 
 California. (16 Stats., 382,) 
 
 Be it resolved by the Senate and House of Representatives of 
 the United States of America in Congress assembled, That the 
 Southern Pacific Railroad Company of California may con- 
 struct its road and telegraph line, as near as may be, on the 
 route indicated by the map filed by said company in the Depart- 
 ment of the Interior on the third day of January, eighteen hun- 
 dred and sixty-seven; and upon the construction of each sec- 
 tion of said road, in the manner and within the time provided 
 by law, and notice thereof being given by the company to 
 the Secretary of the Interior, he shall direct an examination 
 of each such section by commissioners to be appointed by 
 the President, as provided in the act making a grant of land 
 to said company, approved July twenty-seventh, eighteen 
 hundred and sixty -six, and upon the report of the commis- 
 sioners to the Secretary of the Interior that such section of 
 
81 
 
 said railroad and telegraph line has been constructed as re- 
 quired by law, it shall be the duty of the said Secretary of 
 the Interior, to cause patents to be issued to said company for 
 the sections of land coterminous to each constructed section 
 reported on as aforesaid, to the extent and amount granted 
 to said company by the said act of July twenty-seventh, 
 eighteen hundred and sixty-six, expressly saving and reserv- 
 ing all the rights of actual settlers, together with the other 
 conditions and restrictions provided for in the third section 
 of said act. 
 
 Approved June 28, 1870. 
 
 Act of 26th of July, 1868. (15 Stat., 187.) 
 
 Be it enacted by the Senate and House of Representatives of the 
 United States of America in Congress assembled, That the South- 
 ern Pacific Railroad Company of the State of California, shall 
 instead of the times now fixed by law for the construction 
 of the first section of its road and telegraph line, have until 
 the first day of July, eighteen hundred and seventy, for the 
 construction of the first thirty miles, and they shall be re- 
 quired to construct at least twenty miles every year there- 
 after, and the whole line of their road within the time now 
 provided by law. 
 
 In the "Act relative to filing reports of railroad com- 
 panies," 15 Stat.,p. 79, "The Southern Pacific Railroad Com- 
 pany " of California is mentioned. (Sec. 2d.) 
 
 No. 3. 
 
 DEPARTMENT OF THE INTERIOR, 
 
 WASHINGTON, March IQth, 1867. 
 
 SIR : Under date of January 3d, 1867, a map showing the 
 designated route of the Southern Pacific railroad in Cali- 
 fornia, filed under the act of Congress approved July 27th, 
 1866, was sent to you for appropriate action. 
 
 If a withdrawal of lands has not been ordered on account 
 
 of said road, you will cause the necessary instructions to be 
 
 issued to the local land officers to withdraw the odd sections 
 
 within the granted twenty miles on each side of said road 
 
 11 
 
82 
 
 as shown on the map before mentioned, and also withdraw 
 the odd sections outside of the twenty miles and within 
 thirty miles on each side from which the indemnity for 
 lands disposed of within the granted limits is to be taken. 
 
 The even sections within the twenty-mile limits will, 
 under the act 3d March, 1853, "An act to extend pre-emp- 
 tion rights to certain lands therein mentioned," be increased 
 to $2.50 per acre, and subject to the provisions of the pre- 
 emption and homestead laws at that price. 
 
 Mineral lands other than coal and iron are excluded from 
 this grant. 
 
 I do not think it necessary at this time to pass upon the 
 question as to whether this railroad company have adopted 
 the route of any other railroad. Any identity of grant 
 arising out of conflict of location under the first proviso in 
 the 3d section of the act will be reserved for future consid- 
 eration. 
 
 The withdrawal will be ordered to take effect upon the 
 receipt of your instructions at the local office. 
 
 Very respectfully, your obedient servant, 
 
 0. H. BROWNING, Secretary. 
 Hon. Jos. S. WILSON, 
 
 Commissioner of the General Land Office. 
 
 DEPARTMENT OF THE INTERIOR, 
 GENERAL LAND OFFICE, March 22, 18G7. 
 REGISTER AND RECEIVER, 
 
 Visalia, Stockton, San Francisco, California. 
 
 GENTLEMEN : The Secretary of the Interior has trans- 
 mitted to this office a map of the designated line of route of 
 the Southern Pacific railroad of California and directed the 
 withdrawal of the lands granted thereto, under the act of 
 27th July, 1866 (Laws 1866, p. 299). The grant to this road 
 is found in the 18th section of the above act ; by that section 
 this company is granted every alternate or odd-numbered 
 section of public land for ten sections in width on each side 
 of the line of route ; and indemnity for lands sold, reserved, 
 or other otherwise appropriated within the grant, from the 
 alternate odd sections of unappropriated public land, not 
 more than 10 miles beyond the limits of the granted sec- 
 tions. The limits of the grant, then, are 20 miles on each 
 
83 
 
 side of the road, and of the indemnity, 30 miles on each side. 
 
 In compliance with the Secretary's instructions I herewith 
 enclose a diagram map, having noted thereon that part of 
 the line of route within the 20 and 30 mile limits which 
 falls within the limits of your district, and you are hereby 
 directed to withdraw from sale or location, pre-emption or 
 homestead entry, all the odd sections within the said limits, 
 and no entries will be allowed thereon after the receipt of 
 this order, except where bona fide pre-emption claims have 
 attached prior to that time. 
 
 The even sections within the 20-mile limits will, by virtue 
 of the act of March 3d, 1853, be increased to $2.50 per acre, 
 and subject to the provisions of the pre-emption and home- 
 stead laws at that price, except where pre-emption rights 
 may have attached prior to this withdrawal ; in such cases 
 the'parties may prove up and pay for their claims at the 
 price they were held on the day of settlement. The even 
 sections within the twenty miles will not be subject to pri- 
 vate entry until duly offered at the increased price. 
 
 By the 6th section of the act, the provisions of which are 
 hereby extended to the Southern Pacific road by the 18th 
 section, the unsnrveyed lands within forty miles on each 
 side of the line of route are directed to be surveyed, and the 
 odd sections of land granted by the act "shall not be liable 
 to sale or entry or pre-emption before or after they are sur- 
 veyed except by said company, as provided in this act." 
 Therefore, as plats of surveys within the limits of the grant 
 may be filed in your office, you will immediately withdraw 
 the odd sections from pre-emption or entry of any kind, and 
 hold the same for the benefit of the road. 
 
 This order will take effect from the date of its reception, 
 and you will please to acknowledge the date of its receipt 
 by you. 
 
 Very respectfully, your obedient servant, 
 
 Jos. S. WILSON, 
 
 Commissioner. 
 
DEPARTMENT OF THE INTERIOR, 
 GENERAL LAND OFFICE, 
 
 WASHINGTON, July 29, 1870. 
 REGISTER AND RECEIVER, 
 
 San Francisco, Cal. 
 
 GENTLEMEN: The Secretary of the Interior having in- 
 formed this office that by joint resolution (copy herewith 
 enclosed) of Congress, approved June 28, 1870, the Southern 
 Pacific railroad Company of California are authorized to 
 construct their road and telegraph line as near as may be 
 on the route indicated by the map filed in this Department 
 January 3, 1867, a copy of which was sent you on 22d March, 
 1867, I have to direct that the reservation, as indicated in 
 that letter, be respected. 
 
 Please acknowledge receipt. 
 
 Yours respectfully, &c., Jos. S. WILSON, 
 
 Commissioner. 
 
 No. 4. 
 
 DEPARTMENT OF THE INTERIOR, 
 WASHINGTON, D. C., 16th April, 1874. 
 SIR: Referring to my letter to you of yesterday concern- 
 ing the route of the Atlantic and Pacific Railroad in Cali- 
 fornia, I transmit herewith two maps designating the line 
 of said railroad in the county of San Bernardino, State of 
 California, and to the east side of the Colorado river, in Ari- 
 zona Territory, and the line of road in the State of Cali- 
 fornia, between the San Miguel Mission and the Los Angeles 
 county line. These maps were received 15th August, '72, 
 with letter of that date from N. L. Jeffries, Esq., attorney of 
 the company, and are approved by the Department. 
 
 Very respectfully, your obedient servant, 
 
 C. DELANO, Secretary. 
 Hon. WILLIS DRUMMOND, 
 
 Com'r G. L. 0. 
 
85 
 
 DEPARTMENT OF THE INTERIOR, 
 
 GENERAL LAND OFFICE, 
 WASHINGTON, D. C., November 23, 1874. 
 
 REGISTER AND RECEIVER, 
 
 Los Angeles, Cat. 
 
 GENTLEMEN : I transmit herewith two diagrams, which 
 show the completed limits of the grant to the Atlantic and 
 Pacific Railroad Company in your district, prepared from the 
 maps of definite location of the road, filed in the Depart- 
 ment August 15, 1872, and, although only recently ac- 
 cepted, the rights of the company must attach to the lands 
 from that date. 
 
 You will, accordingly, withhold from sale or entry all the 
 odd-numbered sections within the thirty-mile limits shown 
 on the diagrams, and hold the even sections within the 
 twenty-mile limits at $2.50 per acre. 
 
 The even sections between the twenty and thirty mile 
 limits are not affected by the grant. 
 
 Be pleased to promptly acknowledge the receipt of this 
 letter and diagrams. 
 
 Very respectfully, 
 
 S. S. BURDETT, 
 
 Commissioner. 
 
 [Similar instructions of same date were sent to the United 
 States land officers at Visalia.] 
 
 No. 5. 
 
 DEPARTMENT OF THE INTERIOR, 
 
 WASHINGTON, D. C., April 3d, 1871. 
 
 SIR : The 23d section of the act to incorporate the Texas 
 Pacific railroad, and for other purposes, approved March 
 3d, 1871, authorizes "The -Southern Pacific Railroad Com- 
 pany to construct a line of railroad from a point at or near 
 Tehachapa Pass, by way of Los Angeles, to the Texas Pacific 
 railroad at or near the Colorado river," with the same rights 
 and privileges and subject to the same limitations and re- 
 strictions as were granted to said Southern Pacific Railroad 
 Company of California by the act of July 27, 1866. 
 
86 
 
 The accompanying map, designating the route of said 
 railroad from Tehachapa Pass, by way of Los Angeles, to the 
 Colorado river, has been filed by Charles Crocker, Esq., 
 president of the company, with request that the lands may 
 be withdrawn, as provided in the 12th section of said act, 
 "from pre-emption, private entry, and sale." 
 
 You will issue the necessary order for a withdrawal of 
 the lands within twenty miles, and along the route desig- 
 nated on said map. 
 
 Very respectfully, your obedient servant, 
 
 WALTER H. SMITH, 
 
 Acting Secretary. 
 Hon. WILLIS DRUMMOND, 
 
 Commissioner of the General Land Office. 
 
 DEPARTMENT OF THE INTERIOR, 
 GENERAL LAND OFFICE, April 21, 1871. 
 REGISTER AND RECEIVER, 
 
 Los Angeles, California. 
 
 GENTLEMEN: By the act of March 3, 1871, section 23, the 
 Southern Pacific Railroad Company is authorized to con- 
 struct a railroad from a point at or near Tehachapa Pass, by 
 way of Los Angeles, to the Texas Pacific railroad at or near 
 the Colorado river, with the same grant of lands, &c., as 
 were granted to said company by act of July 27, 1866. 
 
 The company having filed a diagram designating the 
 general route of said road, I herewith transmit a map show- 
 ing thereon the line of route, as also the twenty and thirty- 
 mile limits, of the grant, to the line of withdrawal of the 
 Southern Pacific railroad under the act of 1866, and you are 
 hereby directed to withhold from sale or location, pre-emp- 
 tion or homestead entry, all the odd-numbered sections falling 
 within those limits. 
 
 The even-numbered sections within the limits of twenty miles 
 you will increase in price to $2.50 per acre, and will dispose 
 of them at that price, but only under the pre-emption and 
 homestead laws. 
 
 When pre-emption or homestead entries may have had 
 legal inception prior to the receipt of this order, the settlers 
 may, of course, prove their claims, either upon odd or even 
 numbered sections, at the rate of $1.25 per acre. 
 
87 
 
 This order will take effect from the date of its receipt by 
 yon, and you will please acknowledge receipt by date. 
 
 The even-numbered sections between the twenty and 
 thirty mile or indemnity limits are not affected by this order. 
 Very respectfully, 
 
 WILLIS DRUMMOND, 
 
 Commissioner. 
 
 (Reached local office May 10, 1871.) 
 
 A letter was sent to Visalia of same date, and like phrase- 
 ology. Acknowledged as received, May 4, 1871. 
 
 No. 6. 
 
 DEPARTMENT OF THE INTERIOR, 
 GENERAL LAND OFFICE, 
 
 WASHINGTON, May 2lst, 1 880. 
 Hon. C. SCHURZ, 
 
 Secretary of the Interior. 
 
 SIR : I have the honor to submit herewith for your ap- 
 proval or other action list No. 11 of lands in the Visalia 
 district, California, which were selected by the Southern 
 Pacific Railroad Company as indemnity for lands lost to 
 the grant. The grant was made by the act of July 27, 1866 
 (14 Stat., 292). The joint resolution of June 28, 1870 (16 
 Stat., 382), authorized the company to construct its road on 
 the route indicated by a map filed in this office January 3, 
 1867. 
 
 Opposite the tracts selected from lands in the indemnity 
 limits are designated the tracts within 20-mile limits for 
 which the indemnity is claimed. The selected lands are all 
 within the 30-mile limits and the lost lands in the 20-mile 
 limits, as established upon the definite location of the line 
 of road by construction thereof. 
 
 ******* 
 
 " I am in receipt of a communication, under date of the 
 30th ultimo, from Henry Beard, Esq., attorney for the South- 
 ern Pacific Railroad Company of California, -claiming on 
 behalf of that company the right to have approved to said 
 company two lists heretofore presented to this office of lands 
 
88 
 
 selected by said company in lieu of lands granted, sold, &c., 
 by the United States within the grant limits of said road 
 prior to the date of the grant, one of which lists is made the 
 subject of the present reference." 
 
 ******* 
 
 In the Southern Pacific case the time from whence the 
 loss is to be determined is " prior to " the filing of the map 
 of location. In the California and Oregon case it is ' when " 
 the original alternate sections " shall be found to have been 
 granted, sold," &c. These phrases have the same antecedent 
 meaning. The words " prior to " go back just as far as the 
 words " shall be found to have been," &c. If there is any 
 difference it must be in favor of the former expression. 
 
 I am of the opinion that the granting acts in the two 
 cases are precisely similar in character and extent, and in 
 the nature and means of indemnity provided, and that both 
 are grants of quantity, limited only by the condition that the 
 quantity granted shall be found within a certain distance 
 from the line of the road, and that therefore the case of the 
 Southern Pacific road comes specifically within the rule of 
 the California and Oregon decision heretofore referred to. 
 
 At the same time such is the importance of the case, from 
 the magnitude of the interests, public and private, involved 
 in the adjustment of the several grants that may be held to 
 be covered by the California and Oregon decision, that I feel 
 it my duty to submit to you my conclusions upon the points 
 considered for your formal determination and instructions 
 thereon, and I recommend the approval of the accompany- 
 ing list of selections made by the Southern Pacific Railroad 
 Company if my views of the application to the grant to that 
 company of the decision in the California and Oregon case 
 be deemed correct. 
 
 Very respectfully, your obedient servant, 
 
 J. A. WILLIAMSON, 
 
 Commissioner.