considered that the disposition of its public
lands by the Government could reasonably wait upon the preservation of
This policy was generally acquiesced in, but the Pacific coast was an exception. The immediate pressure of the war did not injuriously affect that distant region. On the contrary, it rather created there an era of prosperity. For many reasons this was particularly exhibited in the matter of emigration; thousands of people escaped the immediate horrors and personal obligations of the war by settling on the coast; this in turn occasioned a sudden taking up of public land there and a consequent demand for an unusual extension of public surveys. But this demand encountered the necessity for absolute reduction and almost total cessation of appropriations for that purpose, a condition not essentially dissimilar from that which prevails at present.
It is clearly no injury to the United States to have its public domain surveyed. To that end Congress has yearly appropriated large sums of money which have been a considerable tax upon the public land revenues. But, however large may be such appropriations, the operation of the laws for the sale has always anticipated the survey of the public lands.
11. The making of the surveys will benefit the Government and the people. It is for the interest of the Government in the disposal of its own lands that these surveys should be made promptly. It is of great importance to the citizens of Oregon to have these lands opened up for settlement. The increase of population and the general growth of the country show that the demand for these lands is real. Until quite recently the State of Oregon has made rather slow progress, but the era of improvement has overtaken the country. The title to these lands has been settled by the decition in the 148 United States, 31. All that is now required to have the lands opened to actual settlers is the making of the surveys here applied for.
By the terms of the granting act there were granted to the State "alternate sections of public lands designated by odd numbers, 3 sections per mile, to be selected within 5 miles of said road."
After the survey of the line of the road had been filed all the "odd" sections on either side of the road for 6 miles were withdrawn from public entry, and must necessarily remain so withdrawn until the rights of the present owners are fully satisfied. The public is at this moment shut out not only from the lands owned by these applicants and from which they and the settlers to whom they would sell are wrongly excluded by the refusal to survey, but from all the Government's land adjoining theirs, which can not be taken up until the satisfaction of the rights mentioned. The only impediment to further settlement of the lands is the refusal to order surveys. The benefits, proximate and remote, of immediate action to the Government itself, to the State of Oregon, and to the people at large are incalculable.
12. Delay is injuring the applicants. The further denial of the surveys is a great hardship and injustice to these applicants. Daily their timber is being cut within the grant, and it is only a matter of time when a large portion of the grant may be rendered utterly valueless; and every day's delay increases the number of squatters against whose claims it is necessary to defend the title.
The lands which it is desired to have surveyed are accessible only in the summer season. Unless the bill is passed promptly another year's delay will be unavoidable.
[United States Statues, volume 15, page 89.]
In 1889 Congress passed an
act requiring the Attorney-General to bring suit in the name of the United
States in the United States circuit court for the district of Oregon, against
all persons claiming an interest in this grant to determine the question
of the construction of the road, the legal effect of the governor's certificates,
the right of the United States to resume the land, and to obtain judgment
declaring the land coterminous with any uncompleted portions of the road
forfeited, saving the rights of any bona fide purchaser, the suit to be
tried and adjudicated like other suits in equity.
On August 29, 1889, in pursuance of this authority suit was commenced. Two pleas were filed by the defendants, in one of which they set up the foregoing facts as an estoppel, and in the other the defense of bona fide purchaser. The case was heard on the pleas and bill; the pleas were held good and the bill dismissed. The Government appealed to the Supreme Court, which reversed the judgment on the ground that there should have been an investigation into the merits. When the case came back to the circuit court the pleas were withdrawn, a general answer filed, and the case tried on its merits; numerous witnesses were examined, a mass of testimony taken, and judgment was given in favor of the defendants, finding the facts as above stated and dismissing the bill. The Government appealed to the circuit court at San Francisco. In the meantime trials had been had in two other similar cases affirmed in the circuit court of appeals and in the Supreme Court of the United States, whereupon motion of the owners of these lands, and with the consent of the Attorney-General, the Government's appeal from the judgment in their favor was dismissed. During all this time selections had been suspended by the Department and no patents issued since October 30, 1882. Numerous applications to have the lands surveyed were made from time to time, and early in 1892 formal application by the company to have the lands surveyed, and offering to pay for the same, was made to Secretary Noble, who denied the application.
After the latest decision of the Supreme Court and the decision of the law officers of the Government to dismiss the appeal at San Francisco, application to have the lands surveyed was made to the Department.
The said application was made March 23, 1893, and on the 25th day of the same month was, by the Acting Commissioner of the General Land Office, referred to the surveyor-general for the State of Oregon. The surveyor-general was requested to furnish a description of the land in question, and the probably cost of the survey required. On April 15, 1893, he reported to the Commissioner. The report describes the lands and recommends the survey in the following words: "Regarding the survey of these lands, I would respectfully recommend that said survey be made, if possible, by special deposit or otherwise, as it would not only be an act of justice to the company, but a relief to a number of home seekers and of vast interest to the State."
The estimated cost of the survey is $21,155. On April 27, 1893, the Commissioner of the General Land Office reported to the honorable Secretary of the Interior. The report refers to the application of March 23, 1893, particularly to the statements therein contained as to the litigation concerning these lands, and finds that the said statements are correct. Relying on a previous decision of the Department in a railway case (Atlantic and Pacific Railway Company), the report finds that the proposition for deposit can not be entertained. The report states that there are $4,000 in the reserve fund, but that the same is wholly inadequate for the survey applied for, and recommends that the applicant be advised to apply to Congress, as was done in the case of the Atlantic and Pacific Railway Company.
The company acted upon this suggestion, and in September, 1893, bills were introduced in the Senate and House of Representatives. Both bills were referred to the Public Lands Committee of the respective Houses, and by them transmitted to the Secretary of the Interior, who referred them to the Commissioner of the General Land Office. The Commissioner wrote to the Secretary October 19, 1893, favoring the passage of the Senate bill 819. His letter was transmitted by the Secretary to the Hon. James H. Berry, chairman of the Senate Committee on Public Lands, with a communication from the Secretary concurring in the Commissioner's recommendation and favoring the passage of the bill.
On NOvember 24, 1893, the Commissioner wrote to the Secretary favoring the passage of H. R. 3417. This letter remained in the office of the Secretary of the Interior until about the middle of January, 1894, when it was returned to the Commissioner with the request that it be withdrawn and a contrary recommendation sent to the Secretary of the Interior. This was on January 15, 1894, and the Commissioner's letter recommending that the bill not be passed was sent by the Secretary to the Hon. THOMAS C. McRAE, chairman of the House Committee on the Public Lands, with a letter concurring in the said recommendation. The bill has since been reported adversely.
Thereafter the pending bill was submitted to the Secretary of the Interior, who referred it to the Commissioner of the General Land Office. The Commissioner's report favoring the passage of the bill, together with the Secretary's letter concurring therein, has been transmitted to the chairman of this committee. Copies of the report and letter are annexed hereto.
The decision of the Supreme Court sending the cases back to have the merits investigated is reported as United States vs. Dalles Military Wagon Road Company (148, United States, 599).
The decision of the Supreme Court affirming the judgment in the two cases of like instance is reported as United States vs. California and Oregon Land Company (148 United States, 31).
The grant was made by act of Congress approved July 5, 1866. the grant is a conveyance and a contract. Of this contract the Government has had the benefit. It can not now be heard to repudiate it and refuse the surveys. The duty to survey is an essential part of the grant, being one of the incidents thereof. This was not a donation, gift, or gratuity, but a grant founded on a consideration--a contract conferring mutual benefits and imposing mutual obligations, and the Government is bound to carry it into effect. (Forsyth vs. Reynolds, 15 How., 358.)
Section 2, act of July 6, 1866, provides "that the said lands hereby granted to said State shall be disposed of by the Legislature thereof for the purposes aforesaid, and for no other, and the said road shall be and remain a public highway for the use of the Government of the United States, free from tolls or other charges upon the transportation of any property, troops, or mails of the United States."
By the decision in United States versus this company it is adjudicated that the lands in question where granted and conveyed in consideration of the construction of the road; that the company did construct the road, and that the Government has the benefit of such construction of the road, and has the benefit of the road to-day. It would, under these circumstances, be in the highest degree immoral and unjust for the United States to repudiate this contract.
IT IS THE DUTY OF THE GOVERNMENT TO MAKE SURVEYS.
The company is not bound to
make the survey. This grant was not, like those to the Northern Pacific
and other railroad companies, made on condition that the grantee pay for
the survey, nor does the act of July 31, 1876, nor any of the decisions
thereunder, require the Secretary to demand payment of the cost of surveys
from these applicants. (Act of July 31, 1876, is Stat., 121; Northern
Pacific Railroad Company vs. Traill County, 115 U. S.: case of Southern
Pacific Railroad Company, Copp's Public Land Laws of 1882, vol. 2, p. 749.)
Where the granting act provides for the payment of the costs of surveys before issuance of patent such payment is a condition-precedent, but the act of July 5, 1866, makes no such provision. The only conditions are the building of the road and the certificate of the governor. These conditions have been fully performed, as admitted by the Department. To require the applicant to pay the costs of surveying under these circumstances would be to attach a new condition. This can not be done, as its effect would be to deprive the applicant of property rights. Such conditions may be fixed before but not after a grant is earned. (County of Cass vs. Morrison, 28 Minn., 237; North Pacific Railroad Company vs. Traill County, 115 U. S., 600; Pacific Railway Company vs. United states, 124 U. S., 124.)
LANDS IN OKLAHOMA TERRITORY.
Mr. MARTIN. I give notice that I shall endeavor to call up, when the bill which has just gone over is disposed of, the bill (H. R. 5065) to ratify the reservation of certain lands made for the benefit of Oklahoma Territory, and for other purposes, which is a matter of grave importance and ought to be attended to at the very earliest possible moment if the Territory is to get any advantage from it.
EULOGIES ON THE LATE REPRESENTATIVE LILLY.
Mr. CAMERON. I give notice that I shall call up on Saturday next, at 3 o'clock, the resolutions of the House of Representatives relating to the death of my late colleague in that body, Hon. William Lilly.
YELLOWSTONE NATIONAL PARK.
The VICE-PRESIDENT appointed Mr. CAREY, Mr. WHITE, and Mr. VEST as the conferees on the part of the Senate upon the bill (H. R. 6442) to protect the birds and animals in Yellowstone National Park, and to punish crimes in said park, and for other purposes, and the amendments of the Senate thereto.
HOUSE BILLS REFERRED.
The following bills were severally
read twice by their titles, and referred to the Committee on the District
A bill (H. R. 3294) to regulate water-main assessments in the District of Columbia; and
A bill (H. R. 6171) to authorize the Metropolitan Railroad Company to change its motive power for the propulsion of the cars of said company.
THE REVENUE BILL.
The VICE-PRESIDENT. The
hour of 1 o'clock having arrived, the Chair lays before the Senate the
unfinished business. Go
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