Report on the lands of the arid region of the United States, with a more detailed account of the lands of UtahPowell, John Wesley
History
Report on the lands of the arid region of the United States, with a more detailed account of the lands of Utah
Powell, John Wesley
Irrigation -- Utah; Irrigation -- West (U.S.); Public lands -- United States; Rain and rainfall -- West (U.S.)
“We have before said that the grant itself was _in præsenti_, and
covered all the odd sections which should appear, on the location of
the road, to have been within the grant when it was made. The right to
them did not, however, depend on such location, but attached at once
on the making of the grant. It is true they could not be identified
until the line of the road was marked out on the ground, but as soon as
this was done it was easy to find them. If the company did not obtain
all of them within the original limit, by reason of the power of sale
or reservation retained by the United States, it was to be compensated
by an equal amount of substituted lands. The latter could not, on any
contingency, be selected within that limit. * * * It would be strange,
indeed, if the [indemnity] clause had been intended to perform the
office of making a new grant within the ten mile limit, or enlarging
the one already made. Instead of this, the words employed show clearly
that its only purpose is to give sections beyond that limit for those
lost within it by the action of the government between the date of the
grant and the location of the road. This construction gives effect to
the whole statute, and makes each part consistent with the other.”
If it be thought, however, that such was not the intention of the
legislators who framed the statutes, consolation can be found in the
construction given to the clause inserted in every grant, substantially
as follows: “And the said road shall remain a public highway for
the use of the Government, free from toll or other charge upon the
transportation of troops or other property of the United States.”
It is declared by the Supreme Court that the purpose of that clause
was to allow the Government the right to place its locomotive engines
and cars upon the railroad tracks, and to use such tracks as a public
highway. The court say: “We are of opinion that the reservation in
question secures to the Government only a free use of the railroads
concerned; and that it does not entitle the Government to have troops
or property transported by the companies over their respective roads
free of charge for transporting the same.”
The section providing for the disposal of the lands, recited in full in
the Missouri grant of 1852, has been construed as vesting in the State
the right to sell one hundred and twenty sections of land, contained
within a continuous length of twenty miles at any place along the
grant, even though the road contemplated was never built; and the title
acquired by purchase from the State is valid. And the clause with which
the section referred to ends, to the effect that if the road be not
completed within a certain time the lands shall revert to the United
States, has been declared inoperative without further action by the
Government, either legislative or judicial, looking to an enforcement
of the reserved right.
Public-domain text, read in full here on John Shaqi.
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