say that we agree with this statement of Mr. McGowan that if there are ample lands in the second indemnity limits to make good all of our losses, that the Government has a right to make forest withdrawals in that Territory, provided there are other lands subject to our selection.

Mr. RAKER. Now, it will not interrupt you to ask you to amplify that?

Mr. KERR. The more questions, the better.

Mr. RAKER. I do not yet get the force that your right of selection-I will not put it selection-your right to the land, did not depend upon the survey, but depended entirely upon the definite location, and having been definitely located, if there was enough within the second indemnity belt or limits to satisfy the amount of land, then your right was complete and the question of surveyed and unsurveyed land is not involved; and if you have any authorities on that will you present them now to the committee so that we can get that? Because that is not in the grant at all, that surveyed or unsurveyed proposition, is it? You refer to that in your brief very fully on pages 14 and 15, but you don't give any authority for it.

Mr. KERR. The suggestion involves a consideration, a brief consideration of the difference between the manner of the vesting of title of lands in place limits and to lands in the indemnity limits.

Mr. RAKER. Before you proceed to that, is there any land involved at this point, if the point is material between surveyed and unsurveyed?

Mr. KERR. Well, I hardly think that it is a matter which would concern this committee, because it is really a matter which must be determined in the first instance by the Secretary of the Interior. Mr. RAKER. I know; but will it make a difference in the quantity of land, whether surveyed or unsurveyed in the second limits? Mr. KERR. Yes; considerably.

Mr. RAKER. Then it is important that we should know what the law is on it as well as the fact.

Mr. KERR. Yes.

The CHAIRMAN. Mr. Kerr, does it not resolve into this, that on the filing of the map of definite location you automatically secured title to the place lands?

Mr. KERR. Yes.

The CHAIRMAN. And you have to make a selection of indemnity lands?

Mr. KERR. Yes, that is all there is to it.

The CHAIRMAN. Title does not automatically attach to lands in the indemnity belt; there has got to be affirmative selection on the part of the railroad company.

Mr. RAKER. I gather that, but I am asking this point to be developed, taking what the chairman says, but whether surveyed or unsurveyed, when the road is definitely located and the land is lacking in the primary limits and in the second, or in the first, and then from the primary, they make their application; now, whether surveyed or unsurveyed, they have had the practice and did do it, of protracting their line, which is practically the same as the survey so far as location is concerned, and the protracted

line designates the land and therefore they are in a position to hold it until it is surveyed, and they get the land. That is the point that I am trying to bring out.

Mr. KERR. As stated by the chairman, the rule, of course, is settled that the title to lands in the place limits vests by the words of the present grant upon their identification, by the filing of the map of definite location. And it is also true, in the absence of this question of a deficiency, of a total deficiency in the grant, that the title to a tract of land in the indemnity limits can only be acquired by the filing of a selection list and the approval of that list by the Secretary of the Interior; and, as I say, it has been the uniform practice of the Interior Department to require-to permit no selection of indemnity lands until the land sought to be selected has been surveyed. And I read from the headnote in the matter of Northern Pacific Railroad Co., 15 Land Decisions, page 8, where the Secretary says:

An indemnity selection can not be allowed until the land included therein has been surveyed and a plat of the survey duly approved and filed in the local office.

Mr. RAKER. Now, that does not go to the extent that I am inquiring. Take that to be the law, if the application is made and the lines are protracted, it may be 1 or may be 15 or 20 years before the list is approved, but the filing of the application on the unsurveyed land, if the lines are protracted, withholds the land for the railroad company just the same as though it had been approved the next day; so that when finally approved it relates back to the date of the application and no intervening rights can attach to this tract of land on which the lines have been protracted and designated.

Mr. KERR. We would be very glad if that were the law, but the Interior Department, to which is committed the function of determining these questions, absolutely holds the other way. Under the law they selected unsurveyed lands, probably by protraction of lines, as you suggest, and in. 1892 the selections were rejected for the simple reason that the lands were unsurveyed and if after such rejection a settler had gone upon the land so sought to be selected and the lands were then surveyed, the claim of the settler to a homestead entry would prevail under the decisions of the Interior Department against this attempt and make it an ineffectual selection.

Mr. RAKER. You can't find any decision, can you, that holds that? Mr. KERR. Yes, the administration of these railroad grants and the making of the regulations-indeed, the language of the 'charter itself, says that the indemnity lands shall be selected under the direction of the Secretary of the Interior, and when the Secretary of the Interior says, as he said many, many times, that the Northern Pacific Railroad Co. may not by the protraction of surveys or in any other manner acquire any rights to lands in the indemnity limits when they are unsurveyed, that is an absolute denial of any claim to them. on our part, and we never could preserve any such claim or establish it in any way.

Senator KENDRICK. Mr. Kerr, did I understand you to say that the railway company did not protest this statement or this attitude on

the part of the Government in reference to the Government's right to select forest reserve lands as long as there were other odd-numbered sections sufficient to satisfy your requirements?

Mr. KERR. Provided the other odd sections were surveyed. Mr. McGowan's proposition is that the forest withdrawals are valid, provided there are other lands surveyed or unsurveyed. We say that there must be other lands, surveyed lands.

Senator KENDRICK. It seems to me that would follow necessarily. For instance, in these other States and Territories where settlement was proceeding, if settlers had taken one or more sections and you insisted you were thus denied the right of selection, it would naturally follow that you must insist that the Government had no right to select the forest lands.

Mr. KERR. That is true.

Mr. RAKER. Were there any withdrawals from settlement in this second indemnity belt by the Government following the definite location and the surveys?

Mr. KERR. There was an attempt by the Secretary of the Interior to withdraw lands both in the first indemnity belt and in the second indemnity belt.

Mr. RAKER. He made an order to that effect?

Mr. KERR. Yes.

Mr. RAKER. When was that made?

Mr. KERR. Oh, in 1871 the company established its line of definite location in Minnesota, and the situation of the Minnesota grant was such that it was apparent that there were not sufficient lands in the place limits and in the first indemnity limits to make up the quantity granted to the company; it therefore followed that it was the duty of the Secretary of the Interior to establish a second indemnity belt in the State of Minnesota, which he did forthwith, and thereupon he did issue a withdrawal order covering the lands in the first indemnity limits and the lands in the second indemnity limits. Mr. RAKER. That was Minnesota?

Mr. KERR. Yes.

Mr. RAKER. How long did that withdrawal order stand?

Mr. KERR. That lasted until 1887. In 1887 Secretary Vilas, then Secretary of the Interior, held that because of the peculiar provisions of the Northern Pacific charter, that not only was there no authority to withdraw from settlement and homestead or preemption lands in the first and second indemnity belts, but that such action by the Secretary of the Interior was absolutely prohibited, and the Supreme Court of the United States, in Hewitt v. Schultz (180 U. S. 139), affirmed the rule laid down by Secretary Vilas, and held that because of the language that the preemption and homestead laws are hereby extended to all other lands on the line of said road, except the granted land, that that constituted a prohibition against withdrawing any lands by the Government in either indemnity belts. Mr. McGowan. I don't want to interrupt you; those withdrawals, however, were for the benefit of the railroad company, were they

not?

Mr. KERR. Oh, yes; but that was what Judge Raker asked.

Mr. RAKER. Yes; that is what I am asking. Now, is there a copy of that withdrawal that can be used to place in the record? Has it been placed in the record heretofore?

Mr. McGowAN. Not yet.

Mr. RAKER. Can you produce a copy of that?
Mr. PATTERSON. Yes; I think I can.

Mr. RAKER. Now, this relates to that same proposition. There was no homesteading and settling after the withdrawal until 1887, after the Supreme Court decision?

Mr. KERR. There were attempts, and they culminated in this Guilford Miller decision, which affirmed a lot of these decisions.

Senator NORBECK. Was the land in Minnesota surveyed?
Mr. KERR. Yes.

Senator NORBECK. Did the railroad also exercise their rights during that period when they had the opportunity to do it?

Mr. KERR. Yes; as soon as a survey was filed the railroad company selected all the odd sections in that particular township in lieu of lands lost in the place limits.

Mr. RAKER. Is there any method of ascertaining the quantity of land, say, in Minnesota now, within the first and second indemnity limits that would have been taken had not these orders been made of withdrawal?

Mr. KERR. I think that would be impossible of determination, because it would be a matter of determining the purpose of people who might or might not have settled on those lands.

Mr. RAKER. Was there, to your knowledge, and from the information you have received since, an activity there of settlement, that the people were going in and were desirous of going in?

Mr. KERR. I think it is undoubtedly true that these withdrawal orders probably did deter settlement; to what extent nobody can tell.

Mr. RAKER. Now, did a similar order apply to any of the other parts of the grant at any time than Minnesota? Were there any other withdrawals relative to any other grant on farther west?

Mr. KERR. It applied to practically all of the lands in the first indemnity belt, clear from Ashland to the Pacific coast.

Mr. RAKER. And that was between 1870-and when was the culmination of that suit?

Mr. KERR. Well, between 1871, which was the date when the first map of definite location was filed.

Mr. RAKER. And when was the final culmination now, in the Supreme Court, of that controversy? So we can get the date definitely located.

Mr. KERR. That is page 139-that is the Hewitt case, page 139. You have that, Mr. Chairman.

The CHAIRMAN. Decided January 7, 1901.

Mr. RAKER. So that the withdrawal orders remained in effect from 1871 as to all of the first indemnity belt, up until-what is that date, . Mr. Chairman?

The CHAIRMAN. January 7, 1901.

Mr. RAKER. Until January 7, 1901?

Mr. KERR. That is not correct, because they were all revoked in 1887, following the Guilford Miller decision, by Secretary Vilas. Mr. RAKER. Except in the State of Minnesota, it applied to the first and second indemnity belts?

Mr. KERR. Yes.

Mr. RAKER. Now, give your answer.

Mr. KERR. The withdrawal orders were all revoked in 1887, following the decision by Secretary Vilas in the Guilford Miller case, and the effect of the decision of the Supreme Court in Hewitt against Schultz in 1901 was merely to affirm the decision of Secretary Vilas. In the meantime, all of these lands in the indemnity limits had been subject to settlement and homestead entry.

Mr. RAKER. When did Secretary Vilas make the order which became effective?

Mr. KERR. In 1887, the order of revocation.

Mr. RAKER. Did that then open up for settlement, homestead, and otherwise, the lands within the first and second indemnity limits, clear from Minnesota on to Puget Sound?

Mr. KERR. Yes; all of them.

Mr. RAKER. Is there any method or way that you have ascertained. or can be ascertained, as to the activity of settlement along the line at that time and applications for settlement?

Mr. KERR. I don't think our data would show that. I think that can possibly be furnished by the Commissioner of the General Land Office.

Mr. RAKER. Then could you gentlemen give us any information from your records as to the applications made and the necessity or the activity of homesteading and preempting in that territory during 1871 and 1887?

Mr. VANDOREN. That would be almost an impossibility to figure out anything like that, and further than that, the date that you give there would not pertain to a majority of the grant at all. The dates vary from 1871 until 1884, and the most of it not until after the eighties. And, of course, the second indemnity limits in the two Territories at that time were not established at all, nor was there any withdrawal for the second indemnity limits in Idaho. or Montana.

Mr. RAKER. That has been conceded in the question. Now, let me ask you this question: Do you know from your personal knowledge as to the activity of settlement along the line and development from 1871 up until 1883?

Mr. KERR. Not of my own knowledge; no. The only knowledge I have is a matter of common knowledge.

Mr. RAKER. There was an active working along that line all that time, wasn't there?

Mr. KERR. I presume so. My first connection with the Northern Pacific was in 1896.

Mr. RAKER. We will have to get that from some one else?

Mr. KERR. Yes.

Mr. RAKER. I just put that in in view of the decision by Judge Strong, which I read last night, the decision in the Platt case, that if there was no activity before the road was built, and they built the road, the company should not be criticized because it got a good bargain; but if in this instance the activity was developed and it was keen, and people going there for that purpose were shut out by an order of the department which was unlawful, then the railroad got the benefit of it. That is right, is it not?

Mr. KERR. I presume so; yes.

Mr. WILLIAMS. Mr. Kerr, I wish you would, so far as you deem it pertinent to this inquiry, reiterate your position with reference to