for the two grants. Within the right angle above described there was, of course, an overlap of the limits of the two grants and on the authority of the decision of the Supreme Court in United States v. Northern Pacific Rd. Čo. (193 U. S. 1), the Land Department holds that the lands in the primary or granted limits of this overlap passed to the Northern Pacific under the earlier grant of July 2, 1864, in aid of the line over the Cascade Mountains. It followed necessarily that these same lands so situated in this overlap were excepted from the grant by the joint resolution of May 31, 1870, in aid of the line from Puget Sound to

Portland. The area of the lands in question is stated by the Acting Forester to be 638,450.99 acres. The Commissioner of the General Land Office, in preparing his tentative adjustment, has necessarily treated these lands as lands lost to the grant of May 31, 1870, and as lands for which the company would be entitled to receive indemnity if indemnity were available. In reaching his estimate of more than 1,200,000 acres as the extent to which the Portland-Tacoma grant is deficient, the commissioner has included as lands lost to this grant the area of 638,450.99 acres.

The position of the Acting Forester with respect to Point X is that the effect of the adoption of the joint resolution of May 31, 1870, was to constitute an amendment of the act of July 2, 1864, that thereby the act of July 2, 1864, in sc far as it conferred a grant in aid of the line over the Cascade Mountains, was nullified, and that this line and the line from Puget Sound to Portland were both built pursuant to the joint resolution and that there was a single grant by virtue of the joint resolution for the line over the Cascade Mountains to Puget Sound and thence to Portland.

The plain terms of the joint resolution admit of no such construction. The uniform and long continued construction by the Interior Department, which has the force of law, admits no such shifting of ground at this late day.

It is true that if the suggestions were adopted and the grants in aid of the line over the Cascade Mountains and the line from Puget Sound to Portland were treated as a single grant, the ascertained deficiency found by the commissioner to exist in the amount of over 1,200,000 acres with respect to the TacomaPortland line would be cut in half but at least a 600,000 acre deficiency now applicable only to that line would be added to the deficiency applicable to the grant east of the Cascade Mountains.

Again, it would necessarily follow that if these two grants should be treated as a single grant, a radical readjustment of the limits of the grant would be required at Tacoma and a vast area lying northwest of the Tacoma overlap would fall within the grant. The limits were adjusted at Tacoma in this wise: A line was drawn through Tacoma approximately north and south but at right angles to the line constructed under the act of July 2, 1864, over the Cascade Mountains and no lands lying to the west of this line inured to the company under this grant. In like manner a line was drawn through Tacoma approximately east and west but at right angles to the line constructed under the joint resolution of May 31, 1870, from Tacoma to Portland and no lands lying to the north of this line inured to the company under this grant. Thus under the settled construction of the Interior Department all those lands situated within the triangle formed by these two terminal lines and being the triangle opposite to the triangle of the overlap were excluded from each grant. Obviously, however, if there was, as the Acting Forester contends there was, but a single grant these two terminal lines were and are unauthorized. If the Acting Forester's suggestion should be adopted these two terminal lines would close like a fan and the title to all the odd-numbered sections lying northwest of Tacoma and within a distance of 40 miles, some of the finest timber lands in the State, would vest as granted lands in the Northern Pacific Railway Co., and the appurtenant indemnity belt would comprise a large part of the Olympic National Forest.

Again, it is probable that if the suggestion of the Acting Forester should be accepted, and the deficiency ascertained with respect to the grant in aid of the line from Tacoma to Portland should be added to other ascertained losses in the State of Washington, a situation would arise which would require the creation of a second indemnity belt in Washington. It will be recalled that the joint resolution of 1870, besides making the new grant for the Tacoma-Portland line, provides that in the event of there not being in any State or Territory within the limits prescribed by its charter the amount of lands per mile granted by Congress, the company shall be entitled to select, in the second indemnity belt of 10 miles in width outside of the first indemnity belt, sufficient lands to make up such deficiency to the amount of lands disposed of after July 2, 1864. Under the established construction of the Interior Department now assailed by the Acting Forester, the status of the grant has not justified the creation of a second indemnity belt for the grant of 1864, but if the two grants be treated as one in the manner proposed, it is, as above stated, highly probable that this right of additional selection would exist in the State of Washington.

POINT XI

"11. To deduct the excess acreage of the grant through Washington; area involved acres, 1,500,000.'

""

It is urged by the Acting Forester that the route selected by the Northern Pacific Railroad Co. across the State of Washington is not reasonably direct but is unduly circuitous and that if a direct route had been selected the area of lands within the limits of the grant opposite such a line would have been 1,500,000 acres less than the area within the limits opposite the route selected.

It must be borne in mind that in 1864 when the charter was granted the country between Lake Superior and Puget Sound was an unknown land. In the geographies of the day it was a part of the great American desert.

There

was little knowledge of its mountain ranges and the passes through them, of its water courses, in short of all the essential facts determining the routes of railroads. It was doubtless because of this that the act of 1864 gave the company the greatest latitude, authorizing it to build "by the most eligible railroad route, as shall be determined by said company." The largeness of this latitude is shown by the single express requirement that the route should lie north of the fortyfifth degree of latitude. A main line was contemplated "to some point on Puget Sound with a branch via the valley of the Columbia River to a point at or near Portland." The only specific requirement as to the branch was that it should depart from the main line not more than 300 miles from its western terminus-that is, 300 miles from the terminal point of the main line on Puget Sound. The joint resolution called the line via Portland to Puget Sound the main stem and the line from some point thereon across the Cascade Mountains to Puget Sound the branch, in this respect reversing the designation in the act of 1864.

But the joint resolution did not change the land grant made in 1864 for any line. And it made no new requirement as to where the main line and branch should join, thereby doubtless leaving in force the requirement of 1864 that their junction should be within 300 miles from Tacoma.

The apparent reason for the change in 1870 of main line to branch line and vice versa was that before 1870 it was definitely known that the road would first be built to Tacoma via Portland before building across the Cascade Mountains was attempted. The transcontinental line to Tacoma via Portland was opened in 1883 and the branch across the Cascades was not completed until 1887.

The route of the Northern Pacific, which was the first road across the northern tier of States, was to a large extent determined by the physical conditions its construction confronted. In order to finish the road within any reasonable time construction had to be carried forward on several fronts. In fact the Northern Pacific was built toward the west from Lake Superior, toward the east from Wallula on the Columbia, and from both ends of the line between Portland and Tacoma. Wallula was not only on the direct line to Portland but was of practical necessity the point from which western construction started toward the east. It was the point to which construction material and supplies could be brought by steamers on the Columbia.

The Northern Pacific was not built between Wallula and Portland, because the Oregon Railway & Navigation Co. preempted the south side of the Columbia between Wallula and Portland and before 1883 had built its railroad. Two railroads between Wallula and Portland would have been reckless extravagance and were out of the question. What the company did therefore was to build its main line to Wallula where it connected both with steamboats and with the Oregon Railway & Navigation Co. railroad to make a useful and highly important transcontinental route. Construction from Portland to Tacoma extended this transcontinental route to Puget Sound.

The company having built its main line to Wallula was bound to locate a branch therefrom to Puget Sound, which would be less than 300 miles in length. This requirement of the act of 1864, not repealed by the joint resolution, determined Wallula as the junction point.

Some years before the constrction the company filed with the Secretary of the Interior its maps of definite location, which showed the railroad as it was afterwards constructed via Wallula. No definite location map was filed between Wallula and Portland. The lines of definite location were approved in due course by the United States and the Secretary of the Interior withdrew the lands on these lines.

Afterwards the lines of the company were constructed on the definite location so fixed, and the constructed lines were accepted by the President as compliance with the act of Congress (always excepting the section between Wallula and Portland, land grant opposite which was forfeited).

In 1885, while the Cascade Branch was being built from Wallula to Tacoma, the United States made a treaty with the Yakima Indians, whose reservation the line crossed, providing for conveyance by the Indians to the company of a right of way and sundry station grounds and payment by the company of $8,295.80 to the Indians. On the 3d of March, 1893, this treaty was approved by Congress (27 Stats. L., p. 631), and thereby Congress required the Northern Pacific to pay the Indians for an essential part of the very location the Acting Forester, now over 30 years after, objects to.

Besides this, as is pointed out below, the Government has for 50 years insisted on use of the road at reduced rates, which was its right only on the theory that the road was constructed according to its charter and had earned its land grant.

Whatever right the Government may have had before construction and acceptance thereof to control the company's choice of line, the suggestion at this late day that rights so fixed by accepted construction be now taken away is nothing short of suggested confiscation.

While perhaps not material, it is a fact that the Northern Pacific caused to be surveyed many other routes between Spokane and Puget Sound besides the one it adopted, and, according to the reports of all the engineers at the time, it adopted the most economical and efficient route.

The efficiency of railroad routes does not always rest on distance alone. It is capable of proof to-day, after the lapse of years, that the Northern Pacific between Spokane and Tacoma adopted what is probably the best route from a railroad standpoint, a route which is certainly not second to any other as an efficient and economical means of transportation.

The Acting Forester exaggerates the difference between the area of the grant for the route adopted and what it would have been for another route. A 40section-per-mile grant for the 324 miles of the joint Northern Pacific-Milaukee route amounts to 8,294,400 acres, which is but 627,335.23 acres less than the measure of the Northern Pacific grant of 8,921,735.23 acres. But if the Milwaukee's own route through the State is taken as the proper measure of the grant its 354 miles gives a grant of 9,062,400 acres or 140,664.77 acres more than the Northern Pacific grant of 8,921,735.23 acres.

The question of the effect of the language in the Northern Pacific charter conferring on the company the right to select its route has been considered by the Supreme Court and its decision is peculiarly pertinent here. In the case of United States v. Northern Pacific Railroad Co. (193 U. S. 1), the court considered an alleged conflict between the limits of the grant by the act of July 2, 1864, in aid of the line via the valley of the Columbia River to Portland and the limits of the grant by the joint resolution of May 31, 1870, in aid of the line from Portland to Puget Sound. The suit was brought by the United States to cancel patents issued in May, 1895, to the railroad company. The lands were situated in the State of Washington, north of Portland. The lands were all situated within the limits of the grant of May 31, 1870, and were opposite the road located and constructed under the joint resolution of that date. The Interior Department held that the lands passed under that grant and caused patents therefor to be issued to the company. The Interior Department subsequently held (21 Land Dec. 57) that the lands were reserved and appropriated under the grant of July 2, 1864, in aid of the line from the east via the valley of the Columbia River, and because of this decision the suit was brought to cancel the patents.

It was held by the Supreme Court that there was no reservation or appropriation of these lands under the act of July 2, 1864, for the reason that there was never any definite location of the line via the valley of the Columbia River. It was there urged that the topography of the country east of Portland was such that the granting act itself so defined the location of the railroad that the lands were thus appropriated. But in answer, the court said:

"The argument that the topography of the country between Wallula and Portland was such that the lands necessarily fell within the boundaries of that grant is without merit, for it can not be assumed that Congress intended itself to definitely locate that part of the line in view of the language used and the settled law on the subject."

If under authority to locate and construct a line down the narrow valley of the Columbia the railroad company was vested with such a comparatively wide discretion as to its location, how much wider was its latitude in selecting its route over the Cascade Mountains to Puget Sound?

POINT XII

"12. To show wherein the Northern Pacific defeated its grant under the acts of July 2, 1864, and May 31, 1870, by selections made in the indemnity limits thereof under the acts of July 1, 1898, and March 2, 1899, possibly; area involved (acres), 75,000.”

The references to the two acts of Congress mentioned above are respectively as follows: Act of July 1, 1898, is found in 30 Statutes at Large, 620, and the act of March 2, 1899, is found in 30 Statutes at Large, 993. The point made by the Acting Forester is that because under these two acts lands were selected by the Northern Pacific within its indemnity limits the sum of such selections should be charged against the company in the adjustment of its grants, and this factor should be taken into consideration in determining the deficiency in the indemnity limits. The answer to this suggestion will be made below; but in order to present

the whole question it seems proper to note that the Acting Forester has omitted two other acts of Congress under which similar selections have been made. These acts are those of June 4, 1897 (30 Stat. 11-36), and May 17, 1906 (34 Stat. 197).

The first of these acts, that of June 4, 1897, was the act authorizing the creation of forest reserves later known as national forests. This act was general in its terms and among other things provided that a settler holding an unperfected bona fide claim, or any holder of a patent covering land within the limits of a forest reserve, might transfer such claim or relinquish the tract so covered by a patent and take in lieu thereof an equal area of vacant land open to settlement. The Northern Pacific, in common with owners of other lands in forest reserves, exchanged these lands under the terms of the act of June 4, 1897.

The act of May 17, 1906, was passed subsequent to the decision by the Supreme Court in United States v. Northern Pacific Railroad Co. (193 U. S. 1), discussed above, in which the court held that the grant in aid of the unlocated and unconstructed line down the Columbia River was ineffectual as an appropriation of lands so as to defeat the grant of May 31, 1870, as to lands in the area where it was claimed that these two grants overlapped. The Interior Department had held that a similar alleged overlap at Wallula between the limits of the grant in aid of the line over the Cascade Mountains with what might have been the limits of the grant on account of the line from Wallula to Portland excepted one-half of the lands within this area from the grant for the constructed road and issued patents to settlers for the lands declared to be excepted. Congress, however, by the act of May 17, 1906, declared that this ruling of the Interior Department was erroneous and conferred on the company the right to select an equal quantity of lands elsewhere, which right was exercised.

The claim of the Acting Forester is that under the acts of July 1, 1898, and March 2, 1899, the company selected lands in its indemnity limits to the amount of 75,000 acres. The records of the Northern Pacific, however, show that under the two acts cited by the Acting Forester and under the two other acts, namely the acts of June 4, 1897, and May 17, 1906, the aggregate of such selections amounts to 47,668.40 acres divided as follows:

It is apparent in view of the great deficiency shown by the tentative adjustment of the Commissioner of the General Land Office that a deduction from such deficiency as suggested by the Acting Forester would have no practical effect on the results which must follow from the application of the principles laid down by the Supreme Court in the case reported in 256 U. S. 51, which the Acting Forester is undertaking to overcome. But in any event it is difficult to follow the argument that because the Northern Pacific exercised its right of selection under these four acts of Congress and made certain of its selections in those areas wherein it had the right under its original grant to make selections, the power of disposition of the United States over the other lands in the indemnity belt was thereby increased. The acts under which these selections were made plainly permitted such selections, they were approved by the Interior Department, and if not made within the indemnity belt would have been made elsewhere. If made elsewhere the result would have been to withdraw from other disposition by the United States the lands so selected, but made as they were in the indemnity belt the result was that because of the deficiency the disposing power of the United States was limited as to lands in this belt instead of being limited with respect to lands outside of this belt.

POINT XIII

"13. To show the great additional values received by the Northern Pacific under the act of March 2, 1899, the act of July 1, 1898, and extensions thereof, and other so-called relief acts."