company. If they could not be withdrawn a fortiori, they could not be patented to the company. It would be absurd to say that the preliminary step of withdrawal was illegal and unlawful, and yet the act of making complete title was perfectly lawful and proper.

The conditions and restrictions imposed upon the various companies by the Acts of 1862 and 1864 were numerous.

The seventh section, act of 1862, required the company to file its assent under the seal of the Company within one year from its passage. The 10th section required the company therein named to complete one hundred miles of its road within two years, and one hundred miles per year thereafter. The 13th section limited the distance for which the Hannibal and St. Joseph Railroad should be authorized to receive the bonds to one hundred miles. Sections 14 and 17 required certain things to be done, and denounced forfeitures upon their failure. Sec. 5 of the act of 1864 required the road therein named to construct twenty-five miles per year, and the whole to the State line within four years. Sec. 12 required the Kansas Pacific in a certain contingency to build a road, within two years, from the city of Leavenworth, to unite with the main stem at or near Lawrence. If these respective railroads had failed to build their roads within the respective times specified in the law, it is clear that they would not have been entitled to their land grants, and that it would have been the duty of the Secretary of the Interior to have refused to give patents to them.

Is it not equally clear that under the acts of 1862 and 1864, the company has no valid claim to lands west of Fort Riley, because it has failed to comply with the requirements of those acts in the particulars I have specified?

Is the company entitled under the act of July 3, 1866?

That act authorizes the company to designate the general route of its road, and file a map thereof "as now required by law," at any time before the 1st day of December, 1866, and required the Secretary of the Interior, upon the filing of the map, to reserve the lands from sale, and contained a proviso that the company should only be entitled to the same amount of bonds as it would have been, had it connected with the Union Pacific at the one hundredth meridian, and that it should connect with the Union Pacific at a point not more than fifty miles west of the meridian of Denver, in Colorado. If this act contains any grant of lands, the grant must be implied from the fact that the Secretary is directed to reserve the lands from sale. But grants are not implied. They are construed strictly against the corporation, and in favor of the public, and nothing passes except what is given in clear and explicit terms. This is a familiar principle of construction.

In Parker v. The Great Western Railway Company (7 Manning and Granger, 253), the Right Hon. Sir Nichols Conyngham Tindal, Chief Justice of the Common Pleas, uses the following language: "It is to be observed, that the language of these acts of Parliament is to be treated as the language of the promoters of them. They ask the legislature to confer great privileges upon them, and profess to give the public certain advantages in return. Acts passed under such circumstances should be construed strictly against the parties obtaining them, but liberally in favor of the public."

66

And Lord Chief Justice Tenterden, of the King's Bench, did not hesitate to declare that an act of Parliament, passed for the benefit of a canal or railway company, is a bargain between a company of adven

turers and the public, the terms of which are expressed and set forth in the act; and that the rule of construction in all such cases is now fully established to be, that any ambiguity in the terms of the contract must operate against the adventurers and in favor of the public, the former being entitled to claim nothing which is not clearly given to them by the act." (Stonebridge Canal Company v. Wheeley, 2 B. and Ad, 793. To the same effect was the opinion of the Attorney General of the United States of November 22, 1858, in giving a construction to the Des Moines River grant, under the act of August 18, 1846. "For my own part," he says, "I have not the least doubt about it: the very obscurity of the grant in my judgment makes it clear. It is out of these doubts that certainty grows. In every doubtful case, we know very well what we ought to do, as soon as we ascertain which party is entitled to the benefit of the doubt. We shall see who is entitled to it here. It is well settled that all public grants of property, money, or privileges, are to be construed most strictly against the grantee. Whatever is not given expressly, or very clearly implied from the words of the grant, is withheld. This is most especially true of legislative grants; and for very good reasons, the rule ought to be adhered to with unyielding firmness. We all know the fact, and are not bound to seem ignorant of it, that gifts like this are often caused by private solicitation and personal influence. The bills are almost invariably drawn up by their special friends, and may be made ambiguous on purpose to disarm their opponents, or put suspicion asleep. If you let the grantees have the advantage of the ambiguity which they themselves put into their own laws, many of them will get a meaning which Congress never thought of. The remedy for these evils, and they are evils to the public records as well as to the Treasury, is to let all men know that they can get nothing from the United States except what Congress has chosen to give them, in words so plain that their sense cannot be mistaken." (Ops. Att'y Gen'l., Vol. 9, p. 275.)

* * *

The same rule of construction was applied to the Des Moines grant by the Supreme Court of the United States, in the case of Dubuque and Pacific Railroad Company v. Litchfield (23 How., 66), and Judge Catron, in delivering the opinion, states the reason of the rule to be, that "parties seeking grants for private purposes, usually draw the bills making them; and if they do not make the language sufficiently explicit and clear to pass everything that is intended to be passed, it is their own fault; while on the other hand such a construction has a tendency to prevent parties from inserting ambiguous language, for the purpose of taking by ingenious interpretation and insinuation that which cannot be obtained by plain and express terms." See, also, 11 Pet., 420. 13 Do., 71. 16 How., 524. 23 Do., 435. 1 Black, 358. 2 Do., 722.

Applying this rule, and it is evident that there is no grant of lands in this act. There is a grant to the company of the same amount of bonds that it would have been entitled, had it built its road to the one hundredth meridian. Congress must have supposed that the law, as it then stood, did not give these bonds to the road. Otherwise, it would have been silent on the subject. It is not to be presumed that it would have done or it did do a vain or needless thing. It had its special attention directed to this grant, and it gave the bonds, but no lands. This fact is very satisfactory evidence, to my mind, that Congress did not intend that the company should have an amount of lands equivalent to those it

would have been entitled to, had it gone to the one hundredth meridian. If it had, it would have said so when it was giving the equivalent amount of bonds.

My conclusion is that the company had no land grant west of Fort Riley, under the act of 1866

Had it under the act of March 3, 1869?

That act, 15 Stat., 324, contains three sections. The first provides that the now Kansas Pacific Railroad may contract with the Denver Pacific Railway and Telegraph company, for the construction, operation and maintenance of that part of its line between Denver and its point of connection with the Union Pacific, which point shall be at Cheyenne, and adopt the road bed, already graded by the Denver Pacific, and grants to the Denver Pacific the perpetual use of its rights and privileges.

The second provides that the now Kansas Pacific shall extend its railroad and telegraph to a connection at Denver, so as to form with the Denver Pacific a continuous line of railroad and telegraph from Kansas City, by way of Denver, to Cheyenne, and that all the provisions of law for the operation of the Union Pacific railroad, its branches and connections, as a continuous line, shall apply the same as if the road from Denver to Cheyenne had been constructed by the Union Pacific Railroad Company, Eastern Division.

The third section authorizes said companies to mortgage their respective portions of road, and provides that "each of said companies shall receive patents to the alternate sections of land along their respective lines of road, as herein defined, in like manner and within the same limits, as is provided by law in the case of lands granted to the Union Pacific Railway Company, Eastern Division: Provided, That neither of the companies hereinbefore mentioned, shall be entitled to subsidy in United States bonds under the provisions of this act."

This last clause does contain a grant to the road, and seems to be carrying out the purpose Congress had in view, in the act of 1866, when it directed a reservation of the lands along the new route.

Second. As to the definite location of the Southern Branch having boen made prior to that of the Kansas Pacific. In my examination of this case in July last, I took the case as I found it, and rendered my opinion upon the facts that were before me. The only evidence then before me as to the times when these respective roads were definitely located, was the official statement that the Southern Branch had filed its map of definite location in the Interior Department, on the 26th of November, 1866, and the Kansas Pacific on the 7th of May, 1867. From this evidence I found that the Southern Branch had definitely located its road prior to the Kansas Pacific. I do not see how I could have done otherwise. The filing of the map is certainly prima facie evidence, and when there is no other it should be taken as the true time. It is now alleged that there is more evidence on this point, and that the Kansas Pacific was first located. In support of this allegation counsel have filed with me certified copies of certain correspondence had in the Interior Department. This correspondence shows that Secretary Browning, on the 20th of December, 1866, wrote to the Commissioners appointed to examine the Kansas Pacific, and informed them that the President of that road had filed an affidavit that the sixth section, commencing at a point 130 miles from the east line of the State of Kansas and terminating at a point 150 miles west of said State line,

had been completed, and directing them to examine and report upon the same. This sixth section commenced at Fort Riley. When it was definitely located or completed is not shown. It is left to be inferred that it was prior to the 26th of November, 1866-the time of the definite location of the Southern Branch.

The argument, if stated, would be: the road is found completed for twenty miles west of Fort Riley, on the 20th of December, 1866; therefore it must have been located prior to the 26th of November, 1866. That may have been so, and probably was, but there is better evidence than has been produced. The records of the proceedings of the Board of Directors would give the exact date of location. Upon this motion for a rehearing upon the ground of error in the date of definite location, the best evidence ought to be given. We all know as matter of history, that portions of the Pacific Railroad were built very rapidly, sometimes many miles per day. How it was in regard to this particular twenty miles, is not shown. The Chief Engineer states in his letter of December 28, 1866, to the Commissioners, that the road had been running to Junction City "since October last." Junction City is a few miles to the west of Fort Riley. Taking this statement as evidence, (which it is not) and it renders it altogether probable that as a matter of fact the Kansas Pacific was definitely located, along the line in controversy, prior to the Southern Branch.

Assuming that such was the case, and the question arises whether the time of filing a map of definite location in the Interior Department is to be taken as conclusive evidence of the time of such location?

The acts now under consideratiou do not, in terms, require the filing of such a map. Many of the later acts expressly require it and fix the time of such filing as the time when the rights of the railroad attach. In favor of requiring such map to be filed and making the time of such filing conclusive, it may be said that such a rule would be exceedingly convenient for the Interior Department Most of the controversies, if not all, between individuals and railroad companies relating to the public lands, are heard in, or can be carried by appeal to that Department. In every contest it is necessary to know when the right of the railroad to the particular tract in dispute was definitely fixed, and it is but reasonable that the act which determines this point should be reported to that Department. But while it would be reasonable that such a report should be required and it would be very convenient to treat the time of filing the map showing such definite location as conclusive, yet I am of opinion that under the law applicable to this case, the time of the actual definite location of the road on the face of the earth, and its approval by the Directors of the Company, was the time at which the right of the Company attached, irrespective of the time of filing the map in the Interior Department. That time is a question of fact, and like all disputed questions of fact, must be shown in each case. In cases where it is shown that the road has been constructed and running, it will be safe for the Department to assume that it was done before construction. In all cases where the road is not constructed, it should be shown that the line has been adopted by the Directors and has actually been run and marked off on the face of the earth, or, what is perhaps more in accordance with the usual practice, that the line has actually been run and marked off on the face of the earth and then adopted by the Directors of the road.

Under this rule it is probable that the Kansas and Pacific, on a re

hearing, would be able to show that their definite location of the line west of Fort Riley was prior to that of the Southern Branch, but that showing would be of no advantage to the road if I am correct in the opinion before arrived at, that it had no land granted to it until the act of March 3, 1869.

I must therefore advise adversely to the request of the Kansas Pacific for a re-hearing.

Very respectfully,

W. H. SMITH, Asst. Atty. General.

HON. C. DFLANO, Secretary of Interior.
Concurred in by the Secretary, October 3, 1871.

No. 398.

UNION PACIFIC RAILROAD v. TOWN-SITE OF CHEYENNE ET AL. Lands within an incorporated city or occupied exclusively for the purposes of commerce and trade, and not agriculture, are not subject to pre-emption settlement.

Sioux Half Breed Scrip is only locatable on unoccupied lands subject to preemption settlement or private entry, or on unsurveyed land improved by Discussion of what constitutes the definite location of the line of a railroad.

Sioux Indians.

DEPARTMENT OF THE INTERIOR,

Washington, D. C., 27th September, 1872. SIR-I have examined the case of the Union Pacific Railroad Company v. the Trustees of the City of Cheyenne, Philomen Provencal, Henry Garbonati, et al., on appeal from your decision of October 13th, 1871.

Henry Garbonati and a number of others who have filed declaratory statements, claim specified tracts under the pre-emption act of 1841, and the various acts amendatory thereof.

Philomen Provencal, or rather the Denver Pacific Railroad Company in his right, claim a portion of the land in controversy, under a location with Sioux Half Breed Scrip issued under the act of July 17th, 1852 (10 Stat., 304).

The trustees of the City of Cheyenne claim nearly all the land in contest under the town-site act of March 2d, 1867, (14 Stat., 541,) and the act of June 8, 1868, (15 Stat., 67,) amendatory thereof.

The Union Pacific Railroad Company claim under their grants of July 1st, 1862, (12 Stat., 489,) and July 2d, 1864, (13 Stat., 357,) all the odd sections, and parts of sections in controversy, and also all such portions of even sections as have been reserved and are occupied for the uses of the road, and on which are situated the buildings and structures necessary for the construction, use and operation of the road.

Your decision was adverse to the pre-emption claimants, on the ground that none of them made settlements prior to the survey of the lands into lots and blocks for the purposes of a town, and only one of them settled prior to the actual incorporation of the city by the Territorial Legislature of Dakota, in which the now City of Cheyenne was then situated. You also reject the application to locate a portion of the land in controversy with Sioux Half Breed Scrip, on the ground that such application was made subsequent to the incorporation of the city. You