of these lands was disposed of by the Government long before the grant became operative. The Acting Forester is also in error in his statement (p. 25) of the money value received by the Northern Pacific on account of these lands which he places at $500,000.

The land opposite this part of its line received by the Northern Pacific amounted to 1,276.64 acres and there was received as indemnity on account of lands opposite this part of the line 1,960.99 acres, making a total of 3,237.53 acres. The amount received from the sale of these lands was $17,270.64, which, with the value of 520 acres still held by the company, estimated at about $1,500, totals the sum of $18,770.

The balance of the 11,424.48 acres was never received either in place or by way of indemnity, and there is no possibility of anything being received for these 8,186.95 acres. The half a million dollars which the acting forester estimates as the amount received by the company from this source we find amounts to $18,770.64.

POINT VI

"6. To deduct the acreage of the error at the Ainsworth Terminal; area involved (acres), 41,415.38."

There is no controversy as to the propriety of correcting the error of the Interior Department with respect to fixing the so-called "Ainsworth Terminal" nor as to the propriety of deducting 41,415.38 acres from the area of the grant to the Northern Pacific on account of such correction.

As before suggested, the fixing of the terminal limits of the grant is a matter peculiarly within the jurisdiction of the Interior Department, and it is the function of that department to delineate upon its records the boundaries of the various land grants. In the tentative adjustment of the Northern Pacific grant above referred to, prepared by the Commissioner of the General Land Office, the circumstances under which the so-called "Ainsworth Terminal" was established are set forth. Briefly the facts are as follows: By the act of July 2, 1864, the Northern Pacific Railroad Co. was authorized to construct a line of railroad from Lake Superior to Puget Sound with a branch via the valley of the Columbia River to a point at or near Portland, Oreg., leaving its main trunk line at a point not more than 300 miles from its western terminus, and in aid of this main and branch line grant of land was made. By the joint resolution of May 31, 1870, authority was given to construct the main line via the valley of the Columbia River to Puget Sound and the branch over the Cascade Mountains and an additional grant of lands was made in aid of the extended line from Portland to Puget Sound. Thus the line over the Cascade Mountains, which had been part of the main line under the act of 1864, became the branch under the joint resolution of 1870, and the branch under the act of 1864 down the valley of the Columbia became part of the main line. After this redesignation of the main and branch lines and on June 29, 1883, the Northern Pacific filed its map of definite location for that part of its branch line extending easterly from Yakima City to a point of junction with the main line near Ainsworth on the left bank of the Columbia River. Ainsworth is shown on this map as being about 3 miles east of the point of junction of the main and branch lines. On February 2, 1884, the company filed a map of constructed road covering a portion of the branch line for a distance of 28 miles from a point on the right bank of the Columbia River about 3 miles upstream from Ainsworth (and on the opposite bank) and extending thence westerly a distance of 28 miles. Incidentally this map of constructed road showed a proposed connection by "present ferry transfer" from a point on the constructed branch line to Ainsworth, a distance of some 4 miles. A few months later, however, and on December 11, 1884, another map of constructed road was filed covering the branch line to a junction with the main line at Pasco, a point about 3 miles westerly from Ainsworth, which point of junction is substantially the same point of junction shown on the map of definite location of June 29, 1883. Reference to the accompanying sketch will aid the foregoing statement.

In his tentative adjustment the Commissioner of the General Land Office says:

"From the map of definite location filed June 29, 1883, it is evident that it was the company's intention to make Pasco, in section 29, township 9 north, range 30 east, the point of juncture of the main and branch lines. The map of constructed road filed in this office February 2, 1884, should have received no consideration for anything other than the 25 miles of constructed road shown thereon. It would appear, however, that the office must have based its location of the terminal at Ainsworth instead of Pasco by reason of the ferry transfer

23

ន

19

27

shown on said map. It is also apparent that said ferry transfer to Ainsworth was in use for a period of a few months only, as the map for the constructed road connecting at Pasco was filed in this office December 11, 1884."

26

25

PASCO

8

27

AINSWORTH

FERRY

TRANSFER

• RIVER.

As before suggested, the fixing of terminal lines is a function of the land department and the company has already advised the Commissioner of the General Land Office that it makes no objection to any proper adjustment of this line provided vested titles are not disturbed. When compared to the tentatively ascertained deficiency in the grants of more than 3,900,000 acres the quantity of land, 41,415.38 acres, affected is inconsequential.

POINT VII

"7. To deduct the error in the primary limits through Montana and Idaho; area involved (acres), 144,000."

This point of the Acting Forester is discussed at length by the Commissioner of the General Land Office in his tentative adjustment (p. 9). It appears from the statement of the commissioner that his office delineated upon its records the lateral limits, place and first and second indemnity, of the Northern Pacific grant in portions of Montana and Idaho before the public surveys had been completed and that the limits adopted were based on projections of surveyed lines and not upon lines of actual survey but that when the surveys were in fact extended to these portions of Montana and Idaho a change occurred in the adoption of certain offsets on the basis of which the previous surveys in these States had been made. The commissioner indicates that this error of his office should be corrected so that the limits of the grant shall conform to the actual Government surveys.

The decisions of the land department are uniform in holding that land-grant limits are where the department fixes them, just as section corners are wherever the surveyors place them, right or wrong, and it seems a late date now to inquire into the accuracy of these lines, but we have already advised the Commissioner of the General Land Office that if an error exists in the erroneous designation upon a map of lands to which the company is not entitled, we are prepared to leave the matter in his hands provided vested titles shall not be disturbed. The quantity of lands affected can only be determined by the land department and by reference to its records.

POINT VIII

"8. To correct the error in the location of the primary first and second indemnity limit lines through Montana and Idaho, thereby releasing over 100,000 acres from the second indemnity limits."

The foregoing statement under Point VII is likewise applicable to Point VIII.

POINT IX

"9. To deduct the acreage of the error at the Kalama terminal; area involved (acres), 27,000."

The Acting Forester submits two arguments under this point (letter, p. 9), first, that the limits of the grant are to be defined by a later map of location covering a line in Oregon instead of by the earlier map of location fixing the line in Washington, and second, that the ferry transfer across the Columbia River to Kalama can not be treated as part of the company's line.

The facts are that the Northern Pacific Railroad Co. filed two maps of definite location in the State (then Territory) of Washington. These maps were filed for part of the line authorized for the first time by the joint resolution of May 31, 1870, and were filed respectively September 13, 1873, and May 14, 1874. The first map covered that portion of the line from Kalama to Tenino, and the second that portion of the line from Tenino to Tacoma. These two maps were duly accepted by the Interior Department, the road was constructed from Kalama to Tacoma, and for 50 years the Interior Department has held that the line shown on these maps defined the grant opposite thereto.

September 22, 1882, the company filed a map of its line in Oregon, from Portland to a point on the Columbia River some 2 miles north or downstream from a point opposite Kalama. Construction of the line in Oregon took place in 1883 from Portland to a point on the Columbia River known as Charlton. This point was south or upstream from a point opposite Kalama. From that time until early in 1890 trains were operated from Portland to Charlton, from which point they were transferred by a car ferry to Kalama on the Washington side. In 1890 the road on the Oregon side was extended about 2 miles to Goble. Goble was on the Oregon side of the Columbia River, about 1 mile north or downstream from Kalama. The construction of this extension was completed May 6, 1890. After that date the car ferry which had previously operated from Charlton to Kalama was operated across the Columbia River between Goble and Kalama. No line was ever constructed on the Oregon side of the river below or north of Goble. Reference to the accompanying sketch will make the situation clear.

The Acting Forester argues that the filing of the map of proposed road on the Oregon side in 1882 which showed an extension of 2 miles beyond Goble (which was never built) operated to divest the title to lands which had inured to the

Company nearly ten years before by the location and construction of the line on the Washington side from Kalama north. In the first place, as has been pointed out, the fixing of land-grant limits is peculiarly the function of the Land Department and these limits were laid down with reference to and are defined by the line from Kalama north. The title to lands opposite this line having vested in 1873 could not have been divested by the mere filing of another map nearly 10 years later.

The Acting Forester also urges that no lands could be earned by the construction and operation of the ferry. In the first place the use of the ferry was shown in the proof of construction of the railroad required under the charter and the section of the line of which the ferry was a part was duly accepted. The ferry constituted part of the transcontinental road, and in computing land-grant deductions from freight and passenger rates the Government has invariably included the ferry crossing in the computation of mileage. But, finally, reference to the accompanying sketch will show that the line of railroad on the Oregon side runs due south from Goble, that the line of railroad on the Washington side runs due north from Kalama. In other words, if the ferry were not treated as part of the railroad the limits of the grant would be the same.

These contentions of the Acting Forester have been submitted to the Commissioner of the General Land Office in connection with his preparation of the tentative adjustment of the grant but he declines to accept them.

Furthermore, the questions raised by the Acting Forester seem purely academic since the tentative adjustment indicates an ascertained deficiency in the grant by the joint resolution of May 31, 1870, of more than 1,200,000 acres while the maximum quantity claimed by the Acting Forester under this point is 27,000

acres.

POINT X

"10. To deduct for the Tacoma overlap; area involved (acres), 638,450.99." It is understood that the argument of the Acting Forester in support of this suggestion rests on the proposition that the grant by the act of July 2, 1864, in aid of the line over the Cascade Mountains to Puget Sound and the grant by the joint resolution of May 31, 1870, in aid of the line thereby authorized from Puget Sound to Portland, in effect constituted a single grant and that in the area in which the limits overlapped the lands should be held to be granted one-half in aid of one line and one-half in aid of the other. As will be observed by reference to the argument of the Acting Forester, under Point XIV below, his position with respect to the Tacoma overlap and his position with respect to the Wallula overlap are in irreconcilable conflict. Furthermore, the Acting Forester apparently does not appreciate the results which would follow from the adoption of the construction which he proposes with respect to the Tacoma overlap.

A preliminary statement of the physical situation is necessary to an understanding of the settled construction of the Interior Department with respect to this question, to an understanding of the suggestion of the Acting Forester and to an understanding of the results which would follow if his suggestion should be adopted. Reference to the accompanying sketch will be of assistance.

As before stated, the act of July 2, 1864, conferred a grant of lands on the Northern Pacific Railroad Co. in aid of a main line "beginning at a point on Lake Superior, in the State of Minnesota or Wisconsin, thence westerly by the most eligible railroad route, as shall be determined by said company, within the territory of the United States, on a line north of the forty-fifth degree of latitude, to some point on Puget Sound, with a branch via the valley of the Columbia River to a point at or near Portland, in the State of Oregon." By the joint resolution of May 31, 1870, a new and additional grant was made in aid of a line from Portland to Puget Sound and by this joint resolution the previously authorized branch down the Columbia River with the new line from Portland to Puget Sound was designated as the main line, while the road to be constructed over the Cascade Mountains to Puget Sound was designated as a branch. The road was duly located and constructed from Ashland, Wis., to Puget Sound and from Puget Sound to Portland, but the portion of the line down the Columbia River to Portland was never located or constructed and the grant made in aid thereof was forfeited with various grants to other railroad companies by the act of Congress approved September 29, 1890 (26 Stat. 496). The junction of the constructed line extending westerly over the Cascade Mountains to Puget Sound with the line from Puget Sound to Portland occurred at Tacoma. These two lines formed almost a right angle with Tacoma as the apex and, following its settled policy in like cases, the Interior Department laid down separate limits

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