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to a point between the foot of Big Stone Lake and the mouth of Sioux Wood River, with a branch via St. Cloud and Crow Wing, to the navi. gable waters of the Red River of the North, at such point as the Legislature of said Territory may determine", the route of which branch was subsequently changed by Congress," may be considered as an entirety and indivisible, or whether it should be construed as several separate and distinct grants each applicable to the particular line or branch specified, that is to say, whether, if it be found that the quantity of indemnity lands along any one of the lines or branches is not sufficient to make up the loss of lands from the odd sections within the grant for such line or branch, the deficiency may be supplied from lands within the indemnity limits pertaining to the other lines or branches ;" and referring to the conflicting opinions of Mr. Secretary Thompson and Mr. Secretary Chandler upon the question involved, you state, in view of the doubt entertained by you respecting the unity of the grant and the indication of a similar doubt entertained in the decision made by me in the Guilford Miller case, you deem it your duty, before proceeding to prepare lists for the approval of the Department, to submit the question for consideration and request such instruction in the premises as may be deemed proper.

To ascertain the rights of the State and its corporate agencies for construction of the railroads and the duty of the Department in the adjustment of the grant, it will be most convenient to first collate the legislation upon which the question arises, with a statement of the facts concerning the interpretation of the grant and the construction of the road thereunder; from which the nature of the question as it originally existed and as it now comes before the Department will be more plainly presented.

The act of March 3, 1857, (11 stats., 195) provided in the first section: That there be and is hereby granted to the Territory of Minnesota, for the purpose of aiding in the construction of railroads, from Stillwater, by way of Saint Paul and Saint Anthony, to a point between the foot of Big Stone Lake and the mouth of Sioux Wood River, with a branch via Saint Cloud and Crow Wing, to the navigable waters of the Red River of the North, at such point as the legislature of said Territory may determine; from Saint Paul and from Saint Anthony, via Minneapolis, to a convenient point of junction west of the Mississippi, to the southern boundary of the Territory in the direction of the mouth of the Big Sioux River, with a branch, via Faribault, to the north line of the State of Iowa, west of range sixteen; from Winona, via Saint Peters, to a point on the Big Sioux River, south of the forty-fifth parallel of north latitude; also from La Crescent, via Target Lake, up the valley of Root River, to a point of junction with the last mentioned road, east of range seventeen, every alternate section of land, designated by odd numbers, for six sections in width on each side of each of said roads and branches; but in case it shall appear that the United States have, when the lines or routes of said roads and branches are definitely fixed, sold any sections, or any parts thereof, granted as aforesaid, or that the right of pre-emption has attached to the same, then it shall be lawful for any agent, or agents, to be appointed by the Governor of said Territory or future State to select, subject to the approval of the Secretary of the Interior, from the lands of the United States nearest to the tiers of sections above specified, so much land, in alternate sections, or parts of sections,

as shall be equal to such lands as the United States have sold, or otherwise appropriated, or to which the rights of pre-emption have attached, as aforesaid; which lands (thus selected in lieu of those sold, and to which pre-emption rights have attached as aforesaid, together with the sections and parts of sections designated by odd numbers as aforesaid, and appropriated as aforesaid) shall be held by the Territory or future State of Minnesota for the use and purpose aforesaid: Provided, That the land to be so located shall, in no case, be further than fifteen miles from the lines of said roads or branches, and selected for and on account of each of said roads or branches : Provided further, That the lands hereby granted for and on account of said roads and branches, severally, shall be exclusively applied in the construction of that road for and on account of which such lands are hereby granted, and shall be disposed of only as the work progresses, and the same shall be applied to no other purpose whatsoever. The legislature of Minnesota, by an act approved May 22, 1857, conferred upon the Minnesota and Pacific Railroad Company all the interest and estate, present and prospective, of the Territory and the future State "in or to any or all the lands granted by the government of the United States" for the purpose of aiding in the construction of the railroad and branch first mentioned in the grant of 1857; and authorized the company to locate and construct a railroad from "Stillwater, by way of Saint Paul and Saint Anthony, via Minneapolis, to the town of Breckenridge, on the Sioux Wood River, with a brauch from Saint Anthony, via Anoka, St. Cloud and Crow Wing, to St. Vincent, near the mouth of the Pembina river."

By another act, approved the same day, the legislature of Minnesota conferred in like terms the lands granted for the second road and branch mentioned in the grant of 1857 upon the Root River Valley and Southern Minnesota Railroad Company and the Minneapolis and Cedar Valley Railroad Company, the latter company to take so much of the grant as was applicable to the road from Minneapolis to "a convenient point of junction west of the Mississippi", and thence via Faribault to the north line of the State of Iowa.

In 1858, the Commissioner of the General Land Office ruled with respect to the latter road that selections for the branch, in lieu of lands disposed of within the granted limits, must be made from the indemnity limits of the branch and not of the main line; but, on the 6th of August following,he submitted the matter to the then Secretary of the Interior (Mr. Thompson) for instruction, calling attention to the fact that the legislature of Minnesota had, by its acts conferring the grant on the two companies last named, manifested its understanding that the grant of Congress authorized selection of indemnity from the indemnity limits of the main road or branch for deficiencies upon either. Replying by letter of the 27th of August, 1858, Secretary Thompson said:

Though disposed to a liberal construction of said act of Congress in favor of the grantee, I am nevertheless of the opinion that the most correct and harmonious view of the provisions of said act (which controls our action) requires us to regard said road and branch as separate roads. . . . . In fact, the entire phraseology of the act is peculiarly explicit, as distinguishing the branches as roads severed from the main lines, and appears to have been carefully prepared for the purpose of establishing the branches as separate roads.

16184-VOL 8-17

Thus the decision of the Department at that time, although applied only to the second grant mentioned in the act of 1857, unquestionably interpreted the aid as being separate to the "road" and to the "branch" mentioned in each case.

In 1862, Congress, by a joint resolution, approved on the 12th day of July (12 Stat., 624), provided for a change of part of the branch line, but this was subsequently repealed by the act of 1865, as will be seen from the quotation therefrom hereinafter.

The grant made by the act of 1857, as so interpreted, appears to have failed to induce the construction of the roads projected by Congress and the State, and, in consequence thereof, by the act of March 3, 1865 (13 Stat., 526), it was further provided as follows:

Be it enacted, etc., That the quantity of lands granted to the State of Minnesota to aid in the construction of certain railroads in said State, as indicated in the first section of an act entitled 'An act making a grant of land to the Territory of Minnesota, in alternate sections, to aid in the construction of certain railroads in said territory, and granting public lands, in alternate sections, to the State of Alabama, to aid in the construction of a certain railroad in said State,' approved March third, eighteen hundred and fifty-seven, shall be increased to ten sections per mile for each of said railroads and branches, subject to any and all limitations contained in said act and subsequent acts, and as hereinafter provided.

Sec. 2. And be it further enacted, that the first proviso in the first section of the act aforesaid shall be so amended as to read as follows, to wit: Provided, That the land to be so located shall in no case be further than twenty miles from the lines of said roads and branches, to aid in the construction of each of which said grant is made; and said lands granted shall, in all cases, be indicated by the Secretary of the Interior.

Sec. 6. And be it further enacted, That the lands hereby and heretofore granted to said Territory or State of Minnesota shall be disposed of by said state for the purposes aforesaid only, and in manner following, namely: When the Governor of said state shall certify to the Secretary of the Interior that any section of ten consecutive miles of said road is completed in a good, substantial, and workmanlike manner, as a first-class railroad, and the said secretary shall be satisfied that said State has complied in good faith with this requirement, the said Secretary of the Interior shall issue to the said State patents for all the lands granted and selected as aforesaid, not exceeding ten sections per mile, situated opposite to and within a limit of twenty miles of the line of said section of road thus completed, extending along the whole length of said completed section of ten miles of road, and no further. And when the Governor of said State shall certify to the Secretary of the Interior, and the Secretary shall be satisfied that another section of said road, ten consecutive miles in extent, connecting with the preceding section or with some other first-class railroad, which may be at the time in successful operation, is completed as aforesaid, the said Secretary of the Interior shall issue to the said State patents for all the lands granted and situated opposite to and within the limit of twenty miles of the line of said completed section of road or roads, and extending the length of said section, and no further, not exceeding ten sections of land per mile for all that part of said road thus completed under the provisions of this act and the act to which this is an amendment, and so, from time to time, until said roads and branches are completed. And when the Governor of said State shall so certify, and the Secretary of the Interior shall be satisfied that the whole of any one of said roads and branches is completed in a good, substantial, and workmanlike manner, as a first-class railroad, the said Secretary of the Interior shall issue to the said State patents to all the remaining lands

granted for and on account of said completed road and branches in this act, situated within the said limits of twenty miles from the line thereof, throughout the entire length of said road and branches: Provided, That no land shall be granted or conveyed to said State under the provisions of this act on account of the construction of any railroad or part thereof that has been constructed under the provisions of any other act at the date of the passage of this act, and adopted as a part of the line of railroad provided for in this act: And provided, That nothing herein contained shall interfere with any existing rights acquired under any law of congress heretofore enacted making grants of land to the State of Minnesota to aid in the construction of railroads: And provided further, That said lands, granted by this or prior acts, shall not in any manuer be disposed of, except as the same are patented under the provisions of this act; and should the State fail to complete any one of said roads or branches within eight years after the passage of this act, then the said lands undisposed of as aforesaid, granted on account of said road or branches, shall revert to the United States.

Sec. 9. And be it further enacted, that the provisions of this act shall also be construed so as to apply and extend to that portion of the line authorized to be vacated by the joint resolution approved July twelfth, eighteen hundred and sixty-two, entitled 'A joint resolution authorizing the State of Minnesota to change the line of certain branch railroads in said State, and for other purposes,' notwithstanding the vacation thereof by said State, as though said joint resolution had not passed, and also to the line adopted by said State, in lieu of the portion of the line so vacated.

By the fourth section of the act of Congress of July 13, 1866 (14 Stat., 97), it was further enacted:

That the lands granted by any act of Congress to the State of Minnesota to aid in the construction of railroads in said State, specifically, lying in place, in any division of ten miles of road, shall not be disposed of until the road shall be completed through and coterminous with the same: Provided, however, That this provision shall not extend to any lands authorized to be taken to make up deficiencies.

Meantime, by an act of the legislature of Minnesota, approved March 10, 1862, all the rights, privileges, franchises, lands, property and interests, granted to the Minnesota and Pacific Railroad Company, were transferred and granted to the St. Paul and Pacific Railroad Company, including the entire land grant first given by the act of March 3, 1857. And therefore, Congress passed the act of March 3, 1871 (16 Stat., 588), in the following words after the enacting clause:

That the Saint Paul and Pacific Railroad Company may so alter its branch lines that, instead of constructing a road from Crow Wing to Saint Vincent, and from St. Cloud to the waters of Lake Superior, it may locate and construct, in lieu thereof, a line from Crow Wing to Brainerd, to intersect with the Northern Pacific Railroad, and from St. Cloud to a point of intersection with the line of the original grant at or near Otter Tail or Rush Lake, so as to form a more direct route to St. Vincent, with the same proportional grant of lands to be taken in the same manner along said altered lines, as is provided for the present lines by existing laws: Provided, however, That this change shall in no manner eularge said grant, and that this act shall only take effect upon condition of being in accord with the legislation of the State of Minnesota and upon the further condition that proper releases shall be made to the United States by said company, of all lands along said abandoned lines from Crow Wing to St. Vincent, and from St. Cloud to Lake Superior, and that upon the execution of said releases such lands so released shall be considered as immediately restored to market without further legislation.

The foregoing recital presents all the legislation which is supposed to be in any wise material or helpful to the determination of the question now under consideration. Upon this legislation, as so subsisting, a controversy was raised in the Land Office, and carried by appeal to the Department, in reference to the right of the branch line to lands within the indemnity limits of the main line, involving the precise question now under consideration and the same interests now affected.

On the 2d of December, 1875, the Secretary of the Interior (Mr. Chandler) disposed of this appeal in a communication to the Commissioner of the General Land Office, of which the following are the material parts touching the point in issue:

I have considered the case of the St. Vincent extension of the St. Paul and Pacific Railroad vs. the first division of the main line of said road, involving title to certain lands claimed by the former within the indemnity limits of the latter. These lands were, April 30, 1874, approved to the State of Minnesota for the former road; but this privilege was revoked November 14, 1874, upon the discovery of a supposed error; and upon the issuing of patents to said company for lands to which it was entitled, patents therefor were withheld, and the selections and certification held for cancellation by your decision of November 19, 1874.

From this decision appeal is taken upon the ground:

1st. That it is not competent for the Department to alter, revoke or vacate the lists in question, or any part thereof.

2nd. That the grant made by the act of March 3, 1857, (12 Stat., 372) for a main line and branch, is by law one undivided grant, with common limits and privileges, and therefore lands withdrawn and reserved for one portion are equally liable to selection for either.

3d. That it is contrary to precedents established by the Department in like cases. After deciding against the first point claimed, he proceeds:

The second and third points may be considered as one.

The act of March 3, 1857 (11 Stat. 195), makes grants for several railroads in Minnesota, among others the one from Stillwater by way of St. Paul and St. Anthony to a point between the foot of Big Stone Lake and the mouth of the Sioux Wood River with a branch via St. Cloud and Crow Wing to the navigable waters of the Red River of the North, at such point as the legislature of said Territory may direct.

A change of the route of the branch was authorized by joint resolution of July 12, 1862 (12 Stat., 624), and act of March 3, 1871 (16 Stat., 588). The latter enactment only has reference to the specific case under consideration. Under it the line was established on which the road has since been built from St. Cloud northwesterly. It authorized the company to alter its branch lines and build its road on the new line indicated "with the same proportional grant of lands to be taken in the same manner along said altered lines as is provided for the present lines by existing laws." This act of 1871 is an amendment to the original granting act of 1857, altering the line of route merely, and should be construed as though it were inserted in it. The company would therefore have the same rights under their grant along the altered line as it would have had, had it constructed its road in the line as originally proposed. Under the act of 1857, the main line and branch were considered as one and the same road. They were built, owned and controlled by the same company and were in fact but one interest.

That portion of the branch road from St. Paul to St. Cloud was located and built under the original act of 1857, and for nearly this entire distance, its grant overlaps that of the main line. The lands accruing under the grant to both roads, main line and branch, were certified April 7, 1864, in one list to the State for the company as

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