HOMESTEAD SETTLERS ON RAILWAY GRANTS

From early times there was friction between the railways and settlers, actual or prospective, within the limits of lands withdrawn for the railways. Naturally enough when these huge slices of public domain were withdrawn they were not found tenantless and conflicts arose over title; and the situation was made more difficult by certain rulings of the interior depart

ment.

Accordingly we find a host of memorials and bills of the following tenor to relieve homesteaders whose certificates had been cancelled by the government because of conflicts with land grants to various railways;23 to confirm titles to bona fide homesteaders whose rights conflict with the claims of railway companies;24 legislation relieving settlers upon whom the land department had served notice that unless an additional $1.25 per acre was paid their entries within the limits of railway grants would be cancelled;25 to grant additional rights to homestead settlers on public lands within railroad grants;26 to reduce the price of such lands;27 and the like. Such measures were numerous to the end of the period.

In some cases the homesteaders improved their holdings with the railway's consent; then there would be a change in management and the settlers' titles would be defeated in the courts.28 And in many instances such individuals would settle with all assurance from the railway company for which the lands were withdrawn that they would not be disturbed pending the patenting of the land and that then they should have the privilege of purchasing first; then, in the final adjustment and location of the grant or in case of forfeiture, large bodies of land would be restored to the public domain and the settlers upon them find they had no title.29

1890. It was, however, an important step toward settling the land-grant problem. Complaint over the great bodies of land withdrawn from entry has already been noted. Early in the history of land grants the interior department adopted the policy of withdrawing all the lands, including those within the indemnity limits, as soon as a map of the line was filed, and virtually holding them until the railways found it convenient to select their lands.20 There seems to have been no express authority for the practice but precedent and the force of custom. This favored the railway over the settler and caused much criticism. Bills were introduced to restore lands held within indemnity limits, and such restoration was an object of the general act of 1887.

THE HOMESTEAD POLICY AND RAILWAY LAND GRANTS

Down through 1850 there was no considerable conflict between the homestead idea and the policy of aiding railways by land grants.21 After the Civil War, however, certain developments in the operation of each policy brought them more and more in conflict; and in the end the interests of settlers under homestead or preemption laws was a chief factor in bringing the land-grant epoch to a close.

The reasons are numerous. For one thing the growing hostility to corporate activity which culminated in the Granger Movement intensified an apparent conflict; and the operations of the railway companies were in many cases so fraudulent and overbearing that a real conflict existed. "Steals" and "grabs" came normally to be associated with land grants. The operations of "speculators" had the same tendency. Again, at the close of the war, the demand for lands-to give to the soldierswas greatly increased. These things, coupled with the growing realization that land grants were no longer economically desirable, wrought the change.22

20 See H. Rep., 1883-84, no. 1849.

See Bul. of U. of W., Econ. and Pol. Sci. Series, 3: 374; reprint, vol. I, p. 208.

See Cong. Globe, 1870-71, p. 20; append. 90, 122, etc. In this debate on extending time to the St. Croix and Bayfield the situation is clearly apparent.

HOMESTEAD SETTLERS ON RAILWAY GRANTS

From early times there was friction between the railways and settlers, actual or prospective, within the limits of lands withdrawn for the railways. Naturally enough when these huge slices of public domain were withdrawn they were not found tenantless and conflicts arose over title; and the situation was made more difficult by certain rulings of the interior department.

24

Accordingly we find a host of memorials and bills of the following tenor: to relieve homesteaders whose certificates had been cancelled by the government because of conflicts with land grants to various railways;23 to confirm titles to bona fide homesteaders whose rights conflict with the claims of railway companies; legislation relieving settlers upon whom the land department had served notice that unless an additional $1.25 per acre was paid their entries within the limits of railway grants would be cancelled;25 to grant additional rights to homestead settlers on public lands within railroad grants;26 to reduce the price of such lands;27 and the like. Such measures were numerous to the end of the period.

In some cases the homesteaders improved their holdings with the railway's consent; then there would be a change in management and the settlers' titles would be defeated in the courts. 28 And in many instances such individuals would settle with all assurance from the railway company for which the lands were withdrawn that they would not be disturbed pending the patenting of the land and that then they should have the privilege of purchasing first; then, in the final adjustment and location of the grant or in case of forfeiture, large bodies. of land would be restored to the public domain and the settlers upon them find they had no title.2

29

In

To meet these and similar difficulties, Congress passed several acts between 1870 and 1887 which must briefly be noted. 1875 a House bill for the relief of settlers on lands within railroad limits became a law.30 It enacted that, in the adjustment of all railway land grants, if any lands were found in the possession of actual settlers whose entries had been allowed subsequently to the time at which, by the ruling of the land office, the right of the railway attached, the railways might relinquish such lands and take others in lieu thereof. The entries of the filings of the settlers might be perfected with complete title as though no grant had been made. The act was not to be construed as confirming any decision of the interior department.

31

Then in 1876, as the result of a long and most interesting debate,31 came an act to confirm preemption and homestead entries of public lands within the limits of railway grants.32 This act was aimed at two chief evils: first, early settlers on lands later granted to railways, when they desired to change, could not transmit a valid title, but technically "abandoned" their lands; second, by decision of the secretary of the interior, as soon as a land-grant railway resolved upon a certain route, title immediately passed to it without patenting or local notice, so that many an unwitting homesteader found he had taken up lands which were already withdrawn.

The chief feature of the bill was its first section which confirmed entries made within railway grants before the railways. notified the local land offices that the lands were withdrawn. In arguing for the measure, it was maintained that homestead and preemption laws were general, while land-grant acts were special; and that, for the harmonious operation of these general and special laws relating as they did to the same subject, it was necessary that the general laws should be fully operative until the definite boundaries within which the special laws were operative had been finally determined. By a late ruling of Secretary Delano, however, the idea had been enforced that the right of a railway company could attach to the lands while they were

30 Statutes at Large, 18:194.

Cong. Rec., 1875-76, p. 605.

Statutes at Large, 44 Cong., 1 sess., chap. 72.

still subject to homestead entry, "ignoring the fact that the railroad grants require the lands to be withdrawn from market after the railroad companies have filed their maps," and that such withdrawal must be the first official segregation of the grant. Thus boards of directors, sitting privately in distant cities, had power to locate the general limits from within which their grants would be taken and so to acquire title to the homes of settlers.

It was asserted that the railroads used dilatory tactics, wearing the settlers out by delay. "Under a dozen pretences" they refused to take the conveyance of the land from the government, hoping thus to obtain possession by an "abandonment"—and incidentally to escape state taxation the while.

The courts could not be resorted to; for the settlers, not having title, could not bring suit.

Against such argument no very strong rebuttal was made, the contention of the negative largely consisting in the plea that this was a subject for the judiciary. (One is reminded how often that plea has been set up against reform-though we would not overlook its value as a conservative force.)

The bill passed by large majorities, the vote in the Senate standing 44 to 9 in its favor.33

The next important legislation on this general topic came in 1880 when settlers on restored lands who had made improvements in good faith were authorized to retain their holdings by paying $2.50 per acre.34

Another type of law was an act for the relief of settlers and purchasers of lands on the public domain in Nebraska and Kansas, which was passed in 1887.35 Lands already settled had been. granted to the Denver and St. Joseph railway whose title was decided by the courts to be the better. A bill was then passed by the House to return to the settlers $1.25 an acre as the price they had paid. In the Senate this amount was raised to $3.50 with the idea of covering the interest on the $1.25. Besides, the settlers had paid taxes and could not recover for them, the lands

as Ibid., p. 690,

"Cong. Rec., 11:59, 312.

Ibid, 1886 87, 210.