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CHAPTER III

LAND GRANTS: 1850-1887 (Continued)

THE MOVEMENT TO FORFEIT LAND GRANTS: 1870-1887

Almost as soon as the land-grant movement was checked a demand for the forfeiture of grants already made sprang up. In many cases the railway would be unable to live up to the conditions of the grant, generally the time requirement, and it was demanded that in such cases the lands be thrown open to settlement. In 1870, for example, there was a bill to forfeit certain lands granted to the Placerville and Sacramento Valley Railroad;1 and a grant to Louisiana for the New Orleans, Opelousas and Great Western was actually revoked.2

The early discussions and this forfeiture had assumed that when the conditions of the grant were not complied with the land reverted to the grantor. But in 1874 came a decision by the supreme court which overturned this idea and was of fundamental significance in all the later land-grant history. This decision was in the case of Schulenburg vs. Harriman.3 The facts are these. In 1856 Congress granted lands to Wisconsin for a railway, and in 1864 enlarged the grant and extended the time. No construction was carried out and the time expired, yet in 1874 no steps had been taken to forfeit the grant. The plaintiff in the suit was in possession of the lands and had cut a quantity of lumber. This a representative of the state seized and the suit was brought to recover it, the question being did the state possess the land? Plaintiff maintained that the grant was not in praesenti: that the state only received a permissive

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right to dispose of the lands on certain conditions. It was contended that the lands reverted to the government upon failure to comply with these conditions, and that this was in accord with public policy in that Congress should not be required to act each time in order to secure forfeiture. Public grants are to be strictly construed.

In defense it was argued that the provision of the grant concerning reversion merely defined the conditions under which forfeiture might be declared and that the lands were not forfeited until Congress so declared. Meanwhile title remained in the state and she could not dispose of the lands until the road was completed.

The court upheld this view of the case. The grant was held to be in praesenti, immediately transferring title, although subsequent proceedings might be necessary to give precision to that title and attach it to specific tracts. A provision that all lands remaining unsold after ten years should revert to the United States if the road were uncompleted, was a "condition subsequent." No one could take advantage of a condition subsequent in such a case but the grantor or his heirs or successors, and if they did not see fit to assert their rights the title remained unimpaired in the grantee. Moreover, if the grant were a public one, the reserved right of the grantor for breach of condition must be positively asserted by judicial proceeding or legislative enactment.

In 1876 an act was passed which forfeited certain railway lands in Kansas to the United States. In 1863 lands had been granted to Kansas for a road from Leavenworth south to the state boundary, the road to be completed in ten years. It had only been constructed as far as Lawrence, however, and there was a desire to have the interior department declare the grant forfeited. But that department cited the above decision against such action, holding that where a grant of land was made for any particular purpose and the conditions of the law were not complied with, the government must repossess itself of control over the land before it could be opened to entry and settlement.

5 Cong. Rec., 1875-76, p. 1415.

This could only be done by act of Congress, and hence a bill was introduced for that purpose.

In discussing the bill, a desire was shown by some to pass a general law of forfeiture for the many railways which had not lived up to the stipulations of their grants. The House, however, was not ready for such action. It was objected that grants varied greatly in nature and that forfeiture would be harsh in

some cases.

As amended by the Senate the bill simply provided that all lands granted for this company, and which had not been patented under the grant nor earned by the completion of the road, should be declared forfeited and open for entry.

From this time on bills for forfeiture were regular, and numerous long reports on the subject indicate its importance and doubtfulness.

In 1878 there was a bill in the House which proposed to restore to the public domain all lands granted to states and corporations for railways which were forfeited through failure to fulfill the conditions of the grant. The committee on public lands reported that nearly 100,000,000 acres would be restored if the bill were passed. A large portion of these grants had been withdrawn from entry for over twenty years! They were held by corporations, which were, in many cases, mere skeletons,-"rings," using the lands as the basis of credit "at the general expense of the country and of innocent purchasers of their worthless stock." An immediate remedy was demanded.R Again, in 1880, a bill having special reference to Pacific railways was reported by the committee on Pacific railroads. The committee, while believing the land-grant policy had been justified, stated that public opinion had been outraged by enormous and unnecessary grants of public lands equal to principalities and empires of the old world. The bill proposed to forfeit all lands not earned by construction, thus restoring 106,500,000 acres according to the committee's report. Further aid was

H. J., 1877-78, pp. 416, 516; also a resolution, p. 412.

H. Rep., 1877-78, no. 911.

See Annual Rep., Comm'r. of Gen'l Land Office, 1877, pp. 12-15.
H. Rep., 1879-80, no. 691.

to be given in the shape of loans. The committee maintained that the Northern Pacific grant should at once be forfeited.

The movement for forfeiture reached its height in 1884. Bills and reports were numerous. All the political parties demanded forfeiture. The National and Anti-Monopoly parties had strong, direct planks. The Republicans' was not so clear, reading as follows: "We demand of Congress the speedy forfeiture of all land grants which have lapsed by reason of non-compliance with acts of incorporation, in all cases where there has been no attempt in good faith to perform the conditions of said. grants." In this year the act of 1866 granting lands to the Iron Mountain Railroad was repealed, and from this time on there were many forfeitures.

Perhaps it may not be amiss to briefly outline one or two contemporaneous cases of land-grant administration which come to light in the reports and which will illustrate some of the abuses which led to demands for forfeiture. The passage of a bill to forfeit lands granted to the Girard and Mobile Railroad Company in Alabama was demanded on the following grounds:10 The grant was made in 1856, on condition that the road should be completed in ten years. The road was located in 1858 and some 55 miles were completed before the war; then in 1866 a few miles were built, but in 1870 the road was only 84 miles long. Up to 1861 a large part of the grant was certified to Alabama, though no official record of completion was found; but apparently none was certified to the railroad company nor used for the purpose of the road. After the war the company seems to have taken it for granted that the grant had lapsed and to have forgotten all about it.

At this point, one Abraham Edwards, registrar of the land office at Montgomery, came upon the scene. Knowing of the grant he made a contract with the company by which he was to receive 10 per cent. of all lands he might get for it, and onetenth of the lands which had been certified to the state-but not to the company-was forthwith conveyed to him. Edwards was also to get 5 per cent. for additional lands. Altogether he and his associates received over 96,000 acres for managing what

10 H. Rep., 1884-85, no. 2501.

was regarded as a steal, which item was carried on the books of the company as "in payment of services to commissioners and agents in selecting lands and obtaining certificates for same."

Great tracts of land were disposed of by the company to speculators at from five to ten cents per acre, a quit-claim deed being given.

Now duties should go with rights and as a land-grant road the Girard and Mobile became subject to laws requiring the free use of its road for troops, discounts on mail service, etc., involving a loss of $39,014. Whereupon it admitted the land. grant was invalid, asked to be released from the status of a land-grant road, and offered to repay purchasers of the lands. The frying pan of censure and forfeiture was preferred to the fire of pecuniary loss.

In the same year with the Alabama grant, Michigan received lands for certain railways. The donation was duly accepted and confirmed upon the Marquette and State Line and Ontonagon and State Line companies.11 There were several consolidations, first with the St. Paul and Fond du Lac, then with the Chicago and Northwestern. In 1862 the Marquette grant was declared forfeited by the state's board of control and bestowed upon the Peninsular Company, the Northwestern consenting, and a change in route was authorized. But for fourteen years no construction was carried out. In 1867 and 1868 the governor of Michigan certified the grant back to the government, as he supposed; and the government sold large quantities to settlers. It turned out that the Ontonagon part had not been certified back, and,-sheltering behind the Schulenburg vs. Harriman decision-in 1880 the Ontonagon and Brule River Co. was formed with the purpose of "grabbing" the lands. The board of control and the state legislature then forfeited the grant of the Ontonagon and State Line, bestowing it upon the new company. One condition made was that at least 20 miles be constructed by August, 1882. The 20 miles were cheaply and imperfectly constructed, no trains being run save over 12 miles of track. Logs and brush were used to make em

11 See H. Rep., 1883-84, no. 684.

12 Cong. Rec., 1886-87, p. 88.

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