6. It has boldly rescinded the pernicious orders of Republican executive officials withdrawing lands from settlement and entry within the indemnity limits of railroad grants.

7. It has torn down the unlawful fences of cattle kings and allowed honest settlers an opportunity to enjoy the privilege which the law gives of going anywhere, upon the public domain, they choose.

9. It has insisted upon an honest compliance with the terms of the law on the part of those who made entries of public lands, and has fearlessly protected the “honest settler,” however poor and obscure, from every attack, however powerful or rich the attacking party may be.

10. It has wrested the Redwood Forests of California from the clutches of greedy foreign corporations.

11. It has begun the good work of rejecting false and fraudulent private land claims.

12. It is, to-day, doing more work and better work in the General Land Office and the Interior Department, than was ever done, under any former administration with an equivalent force.

CHAPTER XVIII.

GUILFORD MILLER'S FARM.

HOW THE RIGHTS OF ACTUAL SETTLERS ON PUBLIC LANDS HAVE BEEN PROTECTED BY THIS ADMINISTRATION

Guilford Miller and Two Thousand Other Honorable Settlers Declared to Have a Good Title to Their Lands

A Railroad's Rapacity Checked.

In accordance with the request of President Cleveland in his letter to Secretary Lamar concerning the lands claimed by the Northern Pacific Railroad Company in the case of Guilford Miller, Secretary Vilas gave the matter very careful consideration, and on August 2, 1888, rendered a long and exhaustive decision denying the claims of the railroad compay upon the lands of Miller. By this decision Guilford Miller not only gets his own land, but about 2,000 other settlers on land claimed by the Northern Pacific Railroad get theirs, thus assuring them of their homes without let or hindrance as well as without cloud upon their titles.

In his letter to the Commissioner of the General Land Office the Secretary reviews the whole case at length and with much ability. He says in stating the

case: .

NEW FACTS IN THE CASE.

After the appeal had brought the case from your office to this Department, my immediate predecessor, on the 9th of October, 1886, transmitted the papers to the Attorney-General for his opinion upon the points involved. On the 14th of March, 1887, the AttorneyGeneral's opinion was received, in response to that request, to the effect that the withdrawal was valid and operated to exclude the land from settlement and entry, and that Miller's entry should, therefore, be canceled. After receiving that opinion no further action was taken by this Department, and it remains for me to dispose of the appeal. I have given the facts and the points of law involved careful consideration, and it appears that material facts were not shown in the papers transmitted to the Attorney-General, and that a different conclusion might probably have been reached by him had all these facts been before him. I do not suppose that it is obligatory upon me to decide in accordance with that opinión, for this and other reasons which I shall discuss; and, after very careful examination, my convictions of the right of the case are so strong that I am unable to do it.

HOW THE RAILROAD COMPANY CHANGED ITS ROUTES.

The Secretary then quotes at sufficient length the different acts granting lands to the Northern Pacific Railroad Company, including the provisions relating to the filing of plats of proposed line, surveys, exemption and withdrawal from settlement, together with the times fixed for the completion of the road, extensions of time and of grant to new branches, &c.

He then reviews fully the action of the company in filing plats or maps of the proposed line of the road from the first action of this kind, on March 6, 1865, only a few months after the passage of the act of incorporation, down through the various efforts it has made to enlarge the boundaries of its grants, and to secure indemnity for lands taken by actual settlers, as provided by law. The first maps were not accurate plats of the country over which the road was to pass, but mere rough drafts. One "map was," in the language of the Secretary,

A very general indication of a line as a practicable' railroad line, as surveyed by Governor Stevens, and indicated in the Territories of Dakota and Montana another line as 'worthy an examination for a railroad route.' The map bears no mark of approval and the line indicated on it is not marked with sufficient definiteness to indicate through what townships even, much less sections, the line of the road would pass. There is not even sufficient representation of the topographical features of the country to define the location, except on portions of the line."

The Railroad Company continued for more than thirteen years to file amended maps or charts, and to request, at each amendment, the withdrawal of lands alleged to be within the land grant limits of the new routes. But the Secretary finds

that

"These do not affect the land claimed by Miller, and only serve to illustrate the consequences of the theory of authority in the Land Office, to make such withdrawal."

The land claimed by Guilford Miller was entirely without the limits of the withdrawal made upon the line of general route in 1870; it fell within the forty-mile limits of the line of general route filed in 1872, and it lies without the limits of forty miles from the line of definite location, and between the forty and fifty-mile limits, thus falling within the indemnity belt.

NO BILL OF PARTICULARS AS TO LOST LANDS.

The Northern Pacific Railroad Company filed in the United States Land Office at Spokane Falls. Washington Territory, on the 15th of December, 1883, a list of lands (marked list No. 2 of selections of public lands made by the N. P. R. R. Co., inuring to it under the grants of July 2, 1864, and May 31, 1870, within the indemnity limits of the Colfax, Spokane Falls, land district), which it claimed to select from the indemnity limits; in such list a total number of six hundred and fifty tracts, aggregating 59,548.74 acres, is claimed, and the one hundred and forty-ninth number is the quarter section homesteaded by Miller. This selection list was accompanied by no statement showing what lands were lost from the granted limits in lieu of which selections are claimed, and no fact was stated beyond the mere claim of selection to justify it. The register and receiver allowed and approved the filing on the 17th of December, and appear to have dated it upon that day.

MILLER'S LAND NOT INCLUDED IN THE RAILROAD'S ORIGINAL DEMAND.

On the 26th of October, 1887, the company filed in the Walla Walla land office, Washington Territory, a list called a "specification of losses in place covered by indemnity selections, List No. 2, Spokane Falls land district, now Walla Walla in part, Washington Territory." It begins with a declaration of selection specified as being numbers 1 to 650 inclusive, in the following words: "All those certain tracts or parcels of land embraced in selection list No. 2, comp rising in the aggregate 59,548.74 acres ; " then follows a specification of lands, lying north of the base line and east of the Willamette principal meridian, within forty miles of the line of the railroad, describing thirty different tracts as having been patented or certified, or otherwise taken up on claims, amounting, in total, to 4,011.04 acres.

No further definite specification of losses is made, but there follows a list generally of certain sections indicated by numbers, and unsurveyed, in three townships; and then a specification of all odd-numbered sections in three other townships, in the Yakima Indian Reservation, aggregating in all, as stated in the list, 55,680 acres, making a total of alleged losses of 59,691.04 acres. But it is obvious that this latter gross specification does not dis

close the true description of acreage of any lost land with accuracy, the allegei acreage being computed at the rate of 640 acres to the section, without reference to actual quantity; and the sections being only guessed at in large degree. The 4,011.04 acres, specifically shown to have been excepted from the grant, would be entirely satisfied by the appropriation in compensation of the first fifty or sixty numbers of the tracts listed in the original list No. 2.

No action has been taken by the General Land Office or the Department in approval, or determination, of this claim of selection. * The alleged date of the first settlement by Miller is not contradicted by any proofs offered, and for the purposes of this opinion, it may be accepted as true. If there be any question of his right upon the facts, which must be further inquired into when final proofs shall be offered, it can be subsequently determined. Nothing has yet appeared that should affect the views I take of the case as it stands.

ILLEGAL ACTION OF THE LAND OFFICE IN 1872.

The Secretary then proceeds to discuss, very fully, the two general questions whether upon the facts Miller must be denied the benefit of his settlement or of his homestead entry, because in contravention of law as applicable to the condition of the land when made; and whether the selection of the company ought, in any case, to be approved to the deprivation of his claim under that entry. The maps filed, the changes of route made from time to time are clearly set forth, the decisions of the Supreme Court of the United States cited and the illegal action of the General Land Office in withdrawing, at the demand of the company made in 1872, lands within the forty-mile limit of a new line in the eastern part of Washington Territory, a map of which was filed with the acting Land Commissioner. The lands were withdrawn by the acting Commissioner of the General Land Office without submitting the question to the Secretary of the Interior, who, as the representative of the President, is, under the law, invested with this authority. Secretary Vilas deems this withdrawal by the acting Commissioner invalid so far, at least, that it could not deprive a settler of the rights given him by the statutes. The Secretary continues:

THE PRIVILEGES CLAIMED BY THE COMPANY.

This peculiar privilege given to this company to lay a line of general route as a basis for withdrawal of its granted lands, to be followed at some later time by fixing a line of definite location for the purpose of construction, is analogous to a franchise given by a special charter to a railroad company to locate and build a railroad between designated points. Of such franchises it has always been held that one location, definitely fixed, exhausts the franchise, and that a chartered company cannot, after one exercise of such a privilege, again re-locate and reconstruct its line.

There is nothing in the fixing of the general route to require a different governing principle from the fixing of the final location. The consequences declared by the statute to attach in the one case as much attach as in the other; and so soon as the statute has thus become applicable, its force is unchangeable but by the creator of it, and there is an end of the privilege.

If this interpretation of the act of Congress be correct, it must follow that the Department, much less the acting Commissioner of the General Land Office, could not alter it by any action of its own. In every just sense, the so-called withdrawal by the Department is only a notification to the public of the effect of the act of Congress itself. The law was exhaustive; the Department could only act to give application to its provisions to the land and notice to the world thereof. And so the Supreme Court said in the case of this company already referred to, of the withdrawal made on another portion of the line

"This notification did not add to the force of the act itself, but it gave notice to all **parties seeking to make a pre-emption settlement that lands within certain defined limits "might be appropriated for the roads."

ONLY ONE BELT OF LAND CAN BE WITHDRAWN.

This reading of the statute limits the power of the Commissioner as much in one aspect as the other; he could neither by his order terminate, suspend or alter the vigor of the expressed will of Congress in respect to what lands were to be withdrawn, or for what period to remain so; nor could he by his order give any added force to a law which proprio vigore accomplished independently of, and prior to his order, all which could be effected. To hold otherwise would be to declare that the force of the act of Congress was terminable or alterable, with respect to the specific lands to which it related, at the pleasure of the Commissioner of the General Land Office; a conclusion for which neither this act nor any other statute furnishes the least foundation. He could not restore in the market, rightfully, lands which the act of Congress had withdrawn for a period the duration of which extended by clear and necessary implication beyond the time when he undertook to restore them: and, if he could not restore these lands to market by his order, contrary to that statute, it is impossible to uphold the exercise of an assumed authority, in the face of the plan and purposes of this act, to withdraw again another belt of eighty miles in width. The law intended that but one such belt should be withdrawn before definite location should give fixity to the grant. To permit him to withdraw another is manifestly to recognize an act contrary to the purpose of the Congress.

WOULD PUT A BLIGHT ON PROGRESS AND SETTLEMENT.

This interpretation of the statute, as affecting the authority of the Land Office, results from the application of well-established canons of construction, and is arrived at without respect to the argumentum ad inconvenienii. If, however, attention be directed to the serious and inequitable consequences which such a theory, as pursued, necessarily involves, it becomes still more impossible to suppose that the Congress could ever have designed such effects. The projected line of this railroad extended from east of the Mississippi river to the Pacific ocean, leaving open to the company's choice any route north of the 25th parallel of latitude. If what was done to the eastern portion of Washington Territory were legally done, it might have been as well inflicted upon any portion of that entire expanse of the northwestern country.

A line of general route is fixed by the company, accepted by the Department, and the act of Congress declared applicable, so that half of the public lands are withdrawn from the use of settlers throughout a belt of eighty miles wide, and the other half are to be purchased only at double minimum price. Such a condition of things remains for years, the road, meantime, not being constructed; a serious blight upon the progress and settlement is necessarily inflicted; but many, adventurously pushing into the new country and expecting the coming of a railroad, buy lands at the price fixed upon the basis of such an expectation.

Is all this to be rendered worse than vain at the mere option of the company with the compliance of the Land Office, and another belt of eighty miles in width to be again marked with these effects? The Commissioner undertakes, indeed, to unloose the withdrawal of the lands within the first and to open them to market; but they are necessarily left charged with the cloud already placed upon them and with the injustice arising from the disappointment to those who have paid a double price in reliance upon a justifiable expectation.

It must be noted also that unless the restriction on the power to change and re-locate the line of general route be applicable to the first location, there is no limitation whatever. If the second location and withdrawal were authorized, so was the third, or any number.

Instead of this great enterprise proving an inducement to settlement and a promoter of development, under such a course of action it could not but be a mighty agent of wrong to individuals and injury to the public, retarding instead of exhilarating the course of advancing civilization. These consequences were a priori so obvious and the privilege proffered to this company, within its strictest limitations, so extensive and unusual, that it must be regarded as having been clearly within the legislative purpose to confine the exercise of such a privilege strictly to its boundaries as expressed by the Act, with no latitude of authority in any officer of the Government to amplify and enlarge them.