Oregon & California Railroad Co. v. United States
238 U.S. 393 (1915)

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U.S. Supreme Court

Oregon & California Railroad Co. v. United States, 238 U.S. 393 (1915)

Oregon & California Railroad Company v. United States

No. 679

Argued April 23, 26, 27, 1915

Decided June 21, 1915

238 U.S. 393

Syllabus

Where there are doubts whether a clause be a covenant or condition, courts will incline against the latter, and, as a general principle, a court of equity is reluctant to lend its aid to enforce a forfeiture. The provisos in the Land Grant Act of July 25, 1866, as amended June 25, 1868, and April 10, 1869, and in the Act of May 4, 1870, to the effect that the lands granted must be sold by railroad companies

Page 238 U. S. 394

only to actual settlers in quantities not exceeding 160 acres to each and at a price not exceeding two dollars and fifty cents per acre, are not conditions subsequent, the violation of which result in forfeiture of the grants, but are covenants which are enforceable. This suit, under such circumstances, becomes one to enforce the covenants, and not to annul the patents.

The fact that the actions of the railroad companies in connection with the lands granted were known to the government officials and that no action was taken by the government in regard thereto does not amount to an estoppel against the government so that it cannot now enforce the covenants.

Acts of Congress granting lands are laws as well as grants, and are operative until repealed; the fact that the conditions imposed in the grant were not applicable to the character of the lands furnishes no excuse for antagonistic action, even though it might justify nonaction pending further legislation.

The delay in the assertion of a right is not conclusive against its existence, although there may be argument in it.

Under the acts involved, there was a complete grant to the railroad company with power to sell limited only as prescribed, and cross-complainants and intervenors who have set up alleged rights in the lands by reason of settlement thereon cannot sustain their claims thereto. Nor can there be an absolute right to purchase and settle on lands where there is no compulsion to sell.

The words "actual settlers" indicate no particular individuals, and the uncertainty of the expression prevents any individual from being a cestui que trust to enforce the condition of the statute.

In construing land grant statutes, the courts cannot, even at the instance of the government, give a greater sanction to them than Congress intended, nor can the courts give to any parties rights which the statutes did not confer upon them.

As the conditions contained in the grant are enforceable, the railroad company is enjoined from further violating them, but as conditions have changed since the grant was made, the company is further enjoined from making any disposition of the land or cutting or removing the timber thereon until Congress shall have a reasonable opportunity to provide for their disposition by legislation, and in case after six months Congress shall not have acted, the company may apply to the district court for a modification of the decree.

This writ brings up for review a decision of the United States District Court for the District of Oregon decreeing

Page 238 U. S. 395

the forfeiture of the unsold portion of certain lands granted by Congress to certain railroad companies, and quieting the title of the United States thereto.

In consequence of a memorial presented to it, Congress, on April 30, 1908, adopted a joint resolution which authorized and directed the Attorney General of the United States to institute and prosecute any and all suits in equity, actions at law, or other proceedings, to enforce any rights or remedies of the United States arising and growing out of either of the following acts of Congress, to-wit: "An Act Granting Lands to Aid in the Construction of a Railroad and Telegraph Line from the Central Pacific Railroad in California, to Portland, in Oregon," approved July 25, 1866, 14 Stat. 239, c. 242, as amended by the Acts approved June 25, 1868, 15 Stat. 80, c. 80, and April 10, 1869, 16 Stat. 47, c. 27, and "An Act Granting Lands to Aid in the Construction of a Railroad and Telegraph Line from Portland to Astoria and McMinville, in the State of Oregon," approved May 4, 1870, 16 Stat. 94, c. 69.

The Attorney General was empowered to assert all rights and remedies existing in favor of the United States, including the claim on behalf of the United States that the lands granted by such acts, or any part of the lands, have been or are forfeited to the United States by reason of any breaches or violations of the terms or conditions of either of such acts which may be alleged or established in such suits, actions, or proceedings.

The resolution declared that it was not intended to determine the right of the United States to any such forfeiture or forfeitures, but to fully authorize the Attorney General to assert on behalf of the United States, and the court or courts before which such suits, actions, or proceedings might be instituted or pending, to entertain, consider, and adjudicate the claim and right of the United States to such forfeiture or forfeitures, and, if found, to enforce the same. 35 Stat. 571.

Page 238 U. S. 396

Being so authorized, the United States brought this suit as complainant against the Oregon & California Railroad Company, the Southern Pacific Company, Stephen T. Gage (individually and as trustee), the Union Trust Company (individually and as trustee), John L. Snyder, and certain others as defendants, to declare forfeited to the United States lands of the Oregon & California Railroad Company aggregating 2,300,000 acres which inured to the predecessors in interest of the company under the acts of Congress referred to in the resolution.

The bill set forth the acts of Congress and alleged that it was expressed that neither the amendatory Act of April 10, 1869, nor the Act of 1866 should be construed to entitle more than one company to the grant of land, and that following such provision, which was in the Act of 1869, there was this proviso:

"And provided further, That the lands granted by the act aforesaid [Act of 1866] shall be sold to actual settlers only, in quantities not greater than one quarter section to one purchaser, and for a price not exceeding two dollars and fifty cents per acre."

That the Act of May 4, 1870, also contained the provision (§ 4) that the lands granted thereby, excepting only such as were necessary for depots and other needful uses in operating the road, should

"be sold by the company only to actual settlers, in quantities not exceeding one hundred and sixty acres or a quarter section to any one settler, and at prices not exceeding two dollars and fifty cents per acre."

The bill also detailed the organization of companies and the steps taken by them to avail themselves of the grants and accomplish the purpose for which they were made; the steps and proceedings in the construction of the roads contemplated; the issue of patents for the lands granted; the amount of land sold and unsold and wherein

Page 238 U. S. 397

and by what acts there had been breaches of provisions of the acts above set forth, which were alleged to have been conditions subsequent, and that, by such breaches, the grants had become forfeited. The bill likewise detailed the various steps and the proceedings whereby the Oregon & California Railroad Company became the owner of the grants, the connection of the defendants, Southern Pacific Company, Gage, and the Union Trust Company therewith, and the rights they asserted therein.

It was alleged that each of the other defendants (other than the railroad company, the Southern Pacific Company, Gage, and the Union Trust Company) asserted an interest in the lands, created, as they alleged, by actual settlement in good faith upon certain of the unsold lands, not exceeding one quarter section, with intention of making a permanent home thereof, and had applied to the railroad company to purchase the same; that the said defendants had instituted suits against the railroad company, Gage, and the Union Trust Company to compel a sale and conveyance of the lands to them; that, unless enjoined, they would prosecute their suits to final judgments, and that they were hence made parties to this suit in order that they might be so enjoined, and, if the court so order, be permitted to set forth their respective claims for adjudication.

The bill prayed a forfeiture of the unsold lands and that the title of the government thereto be quieted, or, if such relief be denied, that the lands be adjudged subject to purchase by actual settlers in quantities not exceeding 160 acres to any one purchaser and at a price not exceeding $2.50 per acre; that a receiver be appointed to sell the lands and account for the proceeds "as the court shall direct."

If such relief be denied, that a mandatory injunction issue requiring the railroad company to offer for sale and to sell the lands as required by the grants. And the

Page 238 U. S. 398

bill also prayed that all of the defendants be enjoined from asserting any right, title, or interest in and to the lands, or committing waste thereon, and for an accounting of all moneys received from the sale of lands or timber.

The persons who asserted interests acquired by actual settlement were made parties to this suit and the causes consolidated, and Snyder and others filed cross-complaints herein setting up their alleged rights. And there were about 6,000 other persons who by the court was permitted as interveners to present their claims for consideration and adjudication. They are represented in the record by the petition and papers of B. W. Nunnally and others.

The cross-complainants alleged that they were actual settlers upon the lands granted by the Act of May 4, 1870, long prior to the institution of any suit or the assertion of any claim of forfeiture by the government, and the petitions in intervention averred that the petitioners were applicants to purchase lands granted by that act or the Act of July 25, 1866, and both cross-complaints and petitions respectively alleged in substance that the lands were granted in trust to the respective grantee companies for actual settlers or those who should become such, and alleged respectively tender of the purchase price, demand for conveyances, and the refusal of the railroad company to accept the tender or make the conveyances. And both cross-complainants and interveners asserted a prior right to the extent of the land demanded by them, respectively; denied that the grants had become forfeited, and resisted the relief prayed by the government. They adopted in all other particulars the allegations of the bill, and relied upon them as the basis of their respective claims; prayed that the railroad company be decreed to hold in trust the legal title to the land respectively claimed by them, that their several rights be established and enforced, and that the railroad company

Page 238 U. S. 399

be directed to convey to each of them the tract of land applied for by each, and for general relief.

Demurrers were sustained to the cross-complaints and to the petitions in intervention. Demurrers to the bill were overruled. 186 F. 861. Joint and several answers were then filed by the railroad company, the Southern Pacific Company, and Gage. The Union Trust Company answered separately. These companies, when referred to collectively, will be called defendants.

The answers admitted most of the allegations of the bill and denied others; alleged facts in resistance to the construction of the government of the acts of Congress and to the relief prayed, justified the alleged breaches of the conditions or covenants of the grants, and set up laches, waiver of the breaches, and statutes of limitation.

A great deal of testimony was taken, but the case was practically submitted and a decree entered upon a stipulation of facts made by the government and defendants. It of itself is quite voluminous, but we deem only certain of its facts material.

By the Act of July 25, 1866, supra (14 Stat. 239, c. 242), Congress authorized and empowered the California & Oregon Railroad Company, which had been organized under a statute of the State of California, and such company, organized under the laws of Oregon, as the legislature of that state should designate, to construct and maintain a railroad and telegraph line between the City of Portland, in Oregon, and the Central Pacific Railroad in California, as follows: the California & Oregon Company to construct that part of the railroad and telegraph line within the State of California, beginning at a point to be selected by the company on the Central Pacific Railroad in Sacramento Valley and running thence northerly through the Sacramento and Shasta Valleys to the northern boundary of the state. The Oregon company to construct the part in Oregon from Portland south

Page 238 U. S. 400

through certain designated valleys to the southern boundary of Oregon, to connect with the part constructed by the first-named company. Whichever company first completed its respective part of the road from the designated terminus to the boundary line between the states was authorized to continue construction until the parts should meet and connect, and the whole line of railroad and telegraph should be completed.

Section 2 of the act granted to the companies, their successors and assigns,

"for the purpose of aiding in the construction of said railroad and telegraph line, and to secure the safe and speedy transportation of the mails, troops, munitions of war, and public stores over the line of said railroad, every alternate section of public land, not mineral, designated by odd numbers, to the amount of twenty alternate sections per mile (ten on each side) of said railroad line."

In case of deficiency in the original sections granted, other lands might be selected in lieu thereof. Upon the filing of the survey of the railroad, the lands granted were to be withdrawn from public sale so far as located within the limits designated. And it was provided that the lands granted should be applied to the building of the said road within the states respectively, wherein they were situated, and that the lands reserved by the government should not be sold except at double the minimum price of public lands, with provisions for sale to actual settlers under the preemption and the homestead laws.

Section 3 granted to the companies the right of way through the public lands "for the construction of said railroad and telegraph line" 100 feet in width on each side of the road, including grounds for stations, etc., and the right to take from the public lands materials for the construction of the road.

Section 4 provided that, when 20 or more consecutive

Page 238 U. S. 401

miles of any portion of the railroad and telegraph line should be ready for the service contemplated, commissioners should be appointed by the President to examine the same, and if it should appear that 20 miles had been completed and equipped in all respects as required by the act, and the commissioners should so report under oath to the President of the United States, patents should issue to the companies or either of them, as the case might be, to the extent of the completed section, and successively as 20 or more miles should be constructed, until the entire railroad and telegraph line authorized by the act should be constructed, and patents to the lands granted should be issued.

Section 5 expressed that the grants were made upon the condition that the companies should keep the railroad and telegraph in repair and use and transport the mails and despatches for the government when required to do so by any department thereof; that the government should have the preference in the use of the railroad and telegraph at reasonable rates not exceeding those paid by private parties, and that the road should remain a public highway for the use of the government, free of toll or other charges upon the transportation of the property or troops of the United States, and at the cost and charge of the corporation or companies.

Section 6 required assent to that act to be filed in the Department of the Interior within one year after the passage of the act, and that the first section of 20 miles should be completed within two years and 20 miles in each year thereafter, and the whole on or before July, 1, 1875, and the road to be of the same gauge as the Central Pacific Railroad of California, and be connected therewith.

Section 7 required the roads to be operated and used as one connected and continuous line, and afford to the government and the public equal advantages and facilities as to rates, time, and transportation.

Page 238 U. S. 402

Section 8 provided that for failure to file assent to the act or to complete the road as required the act should be null and void, "and all the lands not conveyed by patent to said company or companies, as the case may be at the date of such failure, shall revert to the United States." And it was provided if the road and telegraph should not be kept in repair and fit for use, the United States might put the same in repair and use, and might devote the income of the road and telegraph line to repay all expenditure caused by the default of the companies or either of them, or might fix pecuniary responsibility not exceeding the value of the lands granted.

Section 9 provided that, wherever the word "company" or "companies" was used in the act, it should be construed to embrace the words "their associates, successors, and assigns" the same as if the words had been inserted or thereto annexed.

Sections 10 and 11 are not material to be quoted. And § 12 provided that Congress might at any time, having due regard for the right of the companies, "add to, alter, amend, or repeal" the act.

To avail of the grant, the Oregon Central Railroad Company was incorporated October 6, 1866. It projected its road from Portland to Forest Grove, thence southerly on the westerly side of the Willamette River, and became known as the "West Side Company," and its railroad line as the "West Side Line."

The Legislature of Oregon, by joint resolution adopted October 10, 1866, designated the Oregon Central as the road to receive the land grant. (There were certain steps in the organization of the company not important.)

The assent of the company to the Act of 1866 was filed in the office of the Secretary of the Interior, and subsequently (August 20, 1868) a map of survey of its projected line.

April 22, 1867, certain persons, contending that the

Page 238 U. S. 403

West Side Company had not been lawfully incorporated or organized, and designing to secure the grants and other benefits under the Act of 1866, caused proceedings to be taken, intending to organize under the general laws of Oregon the Oregon Central Railroad Company of Salem, and so named in its articles of incorporation. It projected its line of railroad on the easterly side of the Willamette River, and became known as the "East Side Company" and its railroad line as the "East Side Line."

In furtherance of its design, it procured from the Legislature of Oregon on October 20, 1868, the adoption of a joint resolution which declared that the West Side Company was not properly incorporated and was incapable of receiving the grant, and designated the Oregon Central Railroad Company organized at Salem on April 22, 1867, "as the company entitled to receive the lands in Oregon, and the benefits and privileges conferred by the said Act of Congress." Oregon Sess.Laws 1868.

Controversy arose between the companies as to which was entitled to the benefits of the Act of 1866, which controversy continued until about January, 1870.

The controversy was carried to Congress, and on April 10, 1869, Congress passed an act which amended § 6 of the Act of 1866 so as to allow any railroad company theretofore designated by the legislature of Oregon to file its assent to the Act of 1866 within one year from the date of the amending act, and providing that nothing therein contained should impair any rights theretofore acquired by any railroad company; but declaring that neither the Act of 1866 nor the amending act should be construed to entitle more than one company to a grant of land.

"And provided further, That the lands granted by the act aforesaid [Act of 1866] shall be sold to actual settlers only, in quantities not greater than one quarter section to one purchaser, and for a price not exceeding two dollars and fifty cents per acre. "

Page 238 U. S. 404

On June 8, 1869, the East Side Company adopted a resolution which recited the Act of July, 1866, its designation by the Legislature of Oregon as the company to receive the grant, the passage of the Act of April 10, 1869, and concluded as follows:

"This company, the Oregon Central Railroad of Salem, Oregon, . . . do hereby accept all the provisions, rights, privileges, and franchises of said Act of July 25, 1866, . . . and of all acts amendatory thereof, and upon the conditions therein specified, and do hereby give our assent and the assent of such company thereto."

A certified copy of the resolution was filed in the office of the Secretary of the Interior June 30, 1869, and in the following October, a map of survey of location of the first 60 miles of the projected line. On December 24th following, the company completed the first 20 miles within the prescribed time, and the same was examined and approved by commissioners appointed therefor pursuant to the provisions of § 4 of the Act of 1866.

March 16, 1870, the Oregon & California Railroad Company was incorporated, and, on March 29, 1870, the East Side Company assigned to it all of its property, including the land grant, with present and future rights under the Act of July, 1866, and acts amendatory thereof and supplemental thereto, and by virtue of any act or resolution of the Legislature of Oregon, and by the action of its stockholders the East Side Company was dissolved and its stock cancelled.

Resolutions were adopted by the Oregon & California Railroad Company accepting the transfer and also a resolution accepting the Act of 1866 and amendments thereto, and "all the benefits and emoluments therein or thereof granted, and upon the terms and conditions therein specified," and authorizing its assent to be filed with the Secretary of the Interior and a copy of the deed of assignment from the Oregon Central Railroad Company. This

Page 238 U. S. 405

was done, and since the date of the transfer (March 29, 1870), the Oregon & California Railroad Company has assumed and still assumes itself to be the successor of the East Side Company and of all its rights under the Company and of all its rights under the acts of Congress.

The West Side Company abandoned all claims under the Act of 1866 and solicited and obtained from Congress, by the Act of May 4, 1870, a grant of other lands. The act recited (§ 1) that, for the purpose of aiding in the construction of a railroad and telegraph line from Portland to Astoria, and from a suitable point of junction near Forest Grove to the Yamkill River, near McMinnville, in the State of Oregon, there is granted to the Oregon Central Railroad Company, now engaged in constructing the said road, and to their successors and assigns, the right of way through the public lands, and the right to take materials from the public lands and necessary lands for depots, etc., not exceeding 40 acres at any one place, and also 20 alternate sections per mile of the public lands, not mineral, excepting coal or iron lands, designated by odd numbers, not disposed of or reserved or held by valid preemption or homestead rights at the time of the passage of the act.

There was the usual provision for selecting other lands in case of deficiency; the survey of the lands along the line of the railroad; the segregation of lands upon the survey and location of 20 or more miles of road, and for the disposition of the lands reserved by the government within the limits of the grant only to actual settlers at double the minimum price for such lands.

The issuance of patents was provided (§ 3) upon the completion and equipment of 20-mile sections of the railroad.

By § 4 it was enacted:

"That the said alternate sections of land granted by this act, excepting only such as are necessary for the company to reserve for depots, stations,

Page 238 U. S. 406

side tracks, wood yards, standing ground, and other needful uses in operating the road shall be sold by the company only to actual settlers, in quantities not exceeding one hundred and sixty acres or a quarter section to any one settler, and at prices not exceeding two dollars and fifty cents per acre."

It was provided (§ 5) that the company should, by mortgage or deed of trust to two or more trustees, appropriate and set apart the net proceeds of the lands as a sinking fund, to be kept invested in United States bonds or other safe securities for the purchase from time to time of the first mortgage construction bonds on the road, depots, etc., and that no part of the funds should be applied to any other purpose until all of the bonds should have been purchased or redeemed or cancelled.

An assent to the act was required to be filed with the Secretary of the Interior (§ 6), and it was expressed that the grant was upon the condition that 20 miles or more of the road should be completed within two years, and the entire road and telegraph line within six years from the date of the act.

In this act, Congress, by the words "Oregon Central Railroad Company," referred to the West Side Company.

On July 20, 1870, the West Side Company filed its assent to the act in the office of the Secretary of the Interior.

During the year 1870, the Oregon & California Railroad Company procured, by mortgage bonds, approximately $8,000,000, and during the year 1871 the West Side Company in the same way procured about $1,000,000. With the funds thus procured, the lines of railroad contemplated by the Act of 1866 and the Act of May 4, 1870, respectively, were prosecuted continuously until about January, 1873.

As stated, the East Side Company completed the construction of the first 20 miles of its railroad, and the Oregon & California Railroad Company, after the assignment and transfer to it, as stated, continued construction

Page 238 U. S. 407

in 1870, 1871, and 1872 for a distance of approximately 197 miles, and the West Side Company, with the funds procured by it in 1871, constructed its line under the Act of 1870 from Portland to McMinnville, a distance of approximately 47 miles. There was no other construction by the West Side Company, and the lands contiguous to the line of road from Forest Grove to Astoria were forfeited by Act of Congress of January 31, 1885.

Financial vicissitudes came to both companies, and construction was suspended. It was never resumed by the West Side Company, and the East Side Company, under its new name of Oregon & California Railroad Company, finally became, by the assignment of the West Side Company, the owner of the grants under both acts.

The consideration of the conveyance was the payment of the debts of the West Side Company. Since the date of the conveyance, the Oregon & California Railroad Company has assumed and still assumes itself to be the successor of the West Side Company in and to all of the rights, franchises, and property granted or intended to be granted by the Act of May 4, 1870.

Further financial difficulties impeded the construction of the road, and these were met by the various processes detailed in the stipulation of facts, and which we omit except as referred to in the opinion. Among these were a cancellation of the stock of the company and a reissue secured by a trust deed, of which Stephen T. Gage became the only surviving trustee, an issue of bonds, the trust deed to the Union Trust Company, leases to the Southern Pacific Company, and the final control by that company through stock ownership of all of the properties and land grants. That company thereafter administered the land grants. These transactions were alleged as breaches of the conditions which, it is contended, were constituted by the provisos in the respective acts given above, providing for the sale of the granted lands to actual settlers.

Page 238 U. S. 408

163,430.28 acres of the granted lands were sold by the Oregon & California Railroad Company prior to May 12, 1887, nearly all of which were sold to actual settlers, in small quantities, although in a few instances the quantities exceeded 160 acres to one purchaser and the prices were slightly in excess of $2.50 an acre. A rapidly increasing demand for the lands in large quantities and at increased prices commenced about 1889 or 1890, and has continued ever since. From 1894 to 1903, some of the granted lands were sold to persons not actual settlers in quantities and at prices exceeding the maximum designated in the provisos, and in several instances in quantities of from 1,000 to 20,000 acres to one purchaser at prices ranging from $5 to $40 an acre, and in one instance a sale of 45,000 acres at $7 an acre to a single purchaser. About 5,306 sales were made, aggregating 820,000 acres, of which sales about 4,930 were for quantities not exceeding 160 acres and 376 sales in quantities exceeding 160 acres to one purchaser, aggregating 524,000 acres. The latter sales were to persons other than actual settlers and for other purposes than settlement and at prices in excess of $2.50 an acre, and approximately 478,000 acres were sold since 1897 and approximately 370,000 of the 524,000 were sold to 38 purchasers in quantities exceeding 2,000 acres to each purchaser. Approximately three fourths of all sales made since 1897 were made by contracts providing for the payment of the purchase price in from five to ten annual payments and execution of conveyance upon final payment, a considerable number of which contracts were pending when this suit was brought.

On January 1, 1903, the company withdrew from sale all of its lands and refused to accept offers for any of them, asserting that they were timber lands and unsuitable for settlement. At the time the answer was filed, there remained unsold 2,360,492.81 acres, of which 2,075,616.45 acres were theretofore patented under the land grant

Page 238 U. S. 409

acts, and 284,876.36 at that time remained unpatented, all of which are claimed by the company under the land grants.

Since January, 1903, over 4,000 persons have applied to purchase certain of the unsold lands, claiming that they desire to do so for the purpose of settling and establishing homes thereon, and each applicant stated that he was willing and able to tender at the rate of $2.50 per acre therefor. Until about the year 1890 or 1891, there was substantially no demand for the granted lands except for the purpose of settlement, and nearly all of the sales prior to the year 1894 were made for settlement and to settlers.

Prior to 1894, the company maintained an immigration bureau to induce settlement upon the lands, and the greater part of the sales made after that year were to persons not settlers, and for prices exceeding $2.50 per acre.

It was testified that the gross amount of lands that inured to the Oregon & California Railroad Company under both the East Side and the West Side grants was 3,182,169.57, and it was stipulated that, between the years 1871 and 1906, there were patented under the East Side grant 2,745,786.68 acres and between the years 1895 and 1903 there were patented under the West Side grant 128,618.13 acres, leaving unpatented 307,764.76 acres.

At the time the answer was filed, there remained unsold of the granted lands 2,360,492.81 492.81 acres, of which 2,075,616.45 acres were theretofore patented to the Oregon & California Railroad Company under the land grants and 284,876.36 thereof at that time remained unpatented, all of which unsold lands are claimed by the railroad company under and by virtue of the grants. The reasonable value of said unsold lands exceeds the sum of $30,000,000. There is a table attached to the answer showing the net amount received by the railroad company to be, after

Page 238 U. S. 410

all disbursements, $2,495,094.03. (The bill, as we have seen and shall presently more at length refer to, prays a forfeiture of the unsold lands only.)

Pursuant to the rules and regulations of the Interior Department, all of the patents were issued to and based upon applications in writing therefor from time to time filed in the appropriate land office of the United States by the Oregon & California Railroad Company as the "successor and assign" of the East Side Company and the West Side Company, respectively. Each application was accompanied by an affidavit which alleged, among other things, the following:

"The said lands are vacant, unappropriated, are not interdicted mineral, nor reserved lands, and are of the character contemplated by the granting act"

under which the patents were applied for.

The stipulation sets out the creation of an Auditor of Railroad Accounts, and subsequently the creation of a Commissioner of Railroads and his duties by various acts of Congress until 1904, when the bureau was terminated and the duties, files, and records thereof were transferred to the Secretary of the Interior, and that, from 1879 to and including 1903, reports were made of the transactions of the Land Department of the Oregon & California Railroad Company upon blanks furnished by such bureau. The details of the reports are given, which show many sales of the lands in excess of $2.50 per acre.

The bureau, it is stipulated, made annual reports to the Secretary of the Interior which were embodied in his annual reports to the President, and by the President forwarded to Congress, where they were referred to appropriate committees and printed as executive documents.

There reports show the administration of the grants by the company, the number of acres received under the grants, the number sold and at what prices, some of which exceeded $2.50 per acre, and that the price asked for lands not sold was in excess of that sum per acre.

Page 238 U. S. 411

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