did not intend to grant in presenti, as public land for railroad purposes, a part of the bed of the Missouri river, which was then and from time immemorial had been covered by the waters of its main channel; and that therefore the lots of land in controversy did not pass under the grant. The case is now before the Department for reconsideration upon a motion for review of said decision, filed by the "Missouri Valley Land Company, as successors in interest of the Sioux City and Pacific Railroad Company, and present owner of the land grant for the benefit of the latter company;" which motion has been entertained. The specifications of error filed with the motion and the brief of counsel filed in support thereof allege matters both of law and of fact, and claim, substantially, that under the 17th section of the act of July 2, 1864, amending the 14th section of the act of July 1, 1862, the grant under which the Sioux City and Pacific Railroad Company claimed was not a grant in presenti, but was a conditional grant, intended to take effect in futuro, upon and after the happening of certain contingencies, namely, that a company should be found willing to accept the grant and to carry out the purposes of the law; second, that the President should designate such company to that end; third, that a road should be built across Iowa or Minnesota to Sioux City; and fourth, in the absence of the construction of a road to Sioux City as aforesaid, then such road (or company) as should accept the promised grant by the act of 1864, might after the lapse of eighteen months from the enactment thereof proceed to the construction of the road contemplated by said grant. In specification 5, it is claimed, that the grant by the said 17th section not being in presenti, but rather the promise of the future conveyance of lands, did not become operative, and the title did not vest until the definite location of the road on January 4, 1868. The facts alleged by counsel, and the facts developed by reference to the records of your office, so far as material, are: 1. That on December 24, 1864, the President by its request designated the Sioux City and Pacific Railroad Company to construct the railroad from Sioux City westwardly under the 17th section of the act of 1864. Said company filed its map of general route on June 27, 1865, and its map of definite location on January 4, 1868. 2. That in the spring of the year 1867, the Missouri river by an extraordinary avulsion cut for itself a new channel, and left its old bed, which includes the lots in controversy. The surveyor general's report, dated May 20, 1868, shows that at that date, the greater part of the 59.60 acres in contest was covered with the waters of an oblong lake following in its length the courses of the old bed of the river, and found to be impassable by the surveyor who had been sent out on April 30, 1868, to examine, survey and report upon the changes made by said avulsion. The waters of said lake were evidently waters left by the Missouri river, which had not evaporated or been absorbed enough to uncover the land. It is a fair inference as matter of fact, that on January 4, 1868, the date of definite location, nearly if not quite all of the land in contest was covered by said lake. From the standpoint of the railroad company, the foregoing facts suggest for consideration by the Department three questions: Whether under the grant title passed to the company, on December 24, 1864, the date of the President's designation by request; or on June 27, 1865, the date of the filing of the map of general route, which was certainly an acceptance by the company of the Presidential designation; or on January 4, 1868, the date of the definite location? This Department is of opinion that the acts of July 1, 1862, and July 2, 1864, were laws of the land, as well as grants of public property, and that the grants of certain odd-numbered sections of public land described in the act of 1862 were grants in presenti. The Union Pacific Railroad Company, a corporation provided for by said act, and the grantee named therein, was not then in existence, and did not come into existence for several months after the passage of the act, upon compliance with the terms and conditions prescribed by Congress. Whatever may have been the common law rule in respect to the neces sity for a grantee in esse at the date of a grant, it was so far modified by the act of Congress, that the non existence of the grantee at the date of the grant did not in this case prevent the grant from taking effect immediately. In the case of the Missouri, etc., R. R. Co. v. Kansas Pacific R. R. Co. (97 U. S., 497), the court said: It is always to be borne in mind in construing a congressional grant, that the act by which it is made, is a law as well as a conveyance, and that such effect must be given to it as will carry out the intent of Congress. That intent should not be defeated by applying to the grant the rules of the common law, which are properly applicable only as to transfers between private parties. By the 17th section of the act of 1864, Congress released the Union Pacific Railroad Company from its obligation to build the branch from Sioux City westward, and provided for the substitution of another grantee of the lands previously granted to aid in the construction of said branch, to be thereafter designated and approved by the President. The effect of this legislation was not to make a new grant but to provide a new beneficiary under the original grant of July, 1862, as to said branch. Such new beneficiary was to be entitled, in aid of the construction of said branch, to the lands granted by the said original act. In other words, it was to take and could take such lands only as were in existence at the date of said original act, and of the character described therein, and capable of passing thereunder. It is therefore held that upon the designation and approval by the President, on the request of the company, as provided, the lands granted by the original act in aid of the Sioux City branch, passed to the designated company; and that the lots of land here in question being, at the date of the original grant of July, 1862, part of the bed of the Missouri river, did not pass to said new beneficiary company. It is unnecessary to consider and decide any other question presented in connection with the application for review and reconsideration. For the reasons above stated the departmental decision of March 24, 1896, is adhered to. OKLAHOMA LANDS-SETTLEMENT RIGHTS. BRADFORD ET AL. v. DOTY. Where there is doubt as to the actual boundary of lands about to be opened to settlement, and a government official, for the purpose of securing equal opportunities to all, designates a line from which the run shall be made, it is incumbent upon one who disregards such designation to show that by such action he gained no advantage over others. Secretary Francis to the Commissioner of the General Land Office, Jan(I. H. L.) uary 18, 1897. (C. J. W.) On September 22, 1891, Charles J. Doty made homestead entry No. 7761, for lots 1 and 2 and the E. of the NW. 4, Sec. 18, T. 17 N., R. 1 E., Guthrie, Oklahoma. On October 1, 1891, Harry Pulliam filed his affidavit of contest; alleg. ing that Doty entered on and occupied said land before noon of September 22, 1891, and that he (Pulliam) settled on said land immediately after twelve o'clock, noon, of September 22, 1891, before Doty or any one else had made a legal settlement thereon. On October 5, 1891, Nettie J. Bradford filed her affidavit of contest, alleging that she made settlement on said land immediately after noon of September 22, 1891, and that she has improved the land, and resides on it, and that she made her settlement before either Doty or Pulliam and before Doty made entry. A hearing was had at the local office at Guthrie on March 29, 1892, at which all the parties appeared and submitted testimony. On December 17, 1892, the local officers found as follows: The land embraced in this proceeding lies immediately east of the meridian line in the Iowa country and north of Langston, Oklahoma. All of the parties, Doty, Pulliam, and Bradford, testify that they were along the meridian line at noon, September 22, 1891, and immediately after twelve o'clock of said day they stepped across the line, claimed and staked said tract of land as a homestead. As shown by the evidence in this case, exactly where the meridian line was, as understood by those congregated along the line at Pulliam's farm, was uncertain and unknown. Some of the people assembled there thought the fence of Pulliam (father of Harry) was on the line, and others were under the impression that the Iowa line was east of the fence. With this uncertainty touching the Iowa or meridian line the hour of twelve o'clock, September 22, 1891, arrived, and at the signal given by the marshal "to go," the respective parties according to their testimony "rushed" on the claim in dispute and set their stakes and claimed the same as a homestead a few seconds after twelve o'clock noon, September 22, 1891. The substance of the testimony of Lillian Hewitt is, that she was "standing right west of the gap cut by Harry Pulliam in his father's wire fence, and that Harry Pulliam was also standing west of the gap, and when the word was given "to go," Harry Pulliam ran and stuck his stake on the claim in controversy; that Doty stood to the south of the post where the wire was cut, and on the east side of the fence; that Mr. Riggs told Doty that he had better step back inside of the fence or he would be a "sooner;" that Doty paid no attention to the suggestion of Mr. Riggs; that Harry Pulliam stuck his stake before Doty did his on "that corner;' that Pulliam's stake was six or eight feet from the line or wire fence. The testimony of Samuel Dennison discloses that Pulliam has almost 160 acres fenced "lacking a little;" that Doty has about three acres broken; that no corner stone was found, and that witness did not know where the correct corner stones were located. Nathaniel H. Potter testified that he was on the line of the Iowa country September 22, 1891, and saw Miss Nettie J. Bradford standing near the corner of the land in contest with a board or stake in her hand, and that she has continuously resided on said claim. The testimony of James Miller discloses that Miss Bradford has been living on the claim in dispute from the 8th of November to April, 1892. As shown by the testimony of Charles Gandell, Miss Bradford on the opening day was at the corner post of Mr. Pulliam's fence and jumped over and stuck her stake there like the rest of them did. Miss Nettie J. Bradford testified that she made settlement on the land in controversy directly after twelve o'clock September 22, 1891, and when the signal was given she stepped four or five steps and set her stake. It will be noticed that Miss Bradford was standing near the northwest corner of the land in contest and about half a mile north of Doty and Pulliam, at noon of September 22, 1891. By implication Nettie J. Bradford and Harry Pulliam in their contest affidavits charge Charles J. Doty with having entered upon and occupied said tract of land in violation of law and the President's proclamation. If we are correct in our conclusions to this implied charge on the part of Miss Bradford and Harry Pulliam against said Doty, it necessarily follows, in our judgment, that they admit that Doty made prior settlement upon the land in dispute September 22, 1891. In our opinion Doty located on said tract of land on the opening day as quickly as either of the other parties in this proceeding. Doty, however, testified that he was standing on the east side of the fence with one leg under the wire; that no one spoke to him or said anything about being a "sooner;" that there was no one spoke to him or laid their hands on him outside of Mr. Ballard (the marshal); that the first intimation he received in regard to being a "sooner" was after he had stuck his stakes. As between Doty and Pulliam, Doty testified that he did not know which of them stuck his stake first on the claim in controversy (page 389). The testimony of Harry Pulliam touching the time when he "jumped across the line and stuck a stake the first thing" in substance is, that Doty was standing southeast of Pulliam on the east line of the wire fence and immediately after the run Doty was noticed by Pulliam a little south and a little west distant about eight or ten feet (page 323). According to Pulliam's testimony, Doty being a little south and a little west of Pulliam is evidence that he had not traveled as far as Pulliam from the line, and therefore everything being equal (and there is no evidence to the contrary) stuck his stake first, possibly. The testimony, however, of Doty on this point controls our judgment, inasmuch as he testified that he did not know whether Pulliam stuck his stake first or not, therefore we accept his testimony and the testimony of Pulliam and Miss Bradford, and find that we do not know from the evidence in this case which one of the parties in this proceeding, Doty, Pulliam, or Miss Bradford, first made settlement on the claim in dispute in the afternoon of September 22, 1891. So far as the meridian line being where the east wire fence was located on Pulliam's claim is concerned, the substance of E. C. Dodd's testimony on this question is, that by using a transit as testified to by F. S. Pulliam, accuracy could not be obtained; and that in order to 10671-VOL 24- -3 secure accuracy, the proper deflection of the needle, the difference of time from the original survey, the proper variations and the solar system would be necessary to secure accuracy. F. S. Pulliam in his testimony disagrees with Surveyors McCoombs and Dodd, as to the correct method of ascertaining the meridian, standard correction and township lines. Mr. Pulliam testifies that at the time he built his fence the Iowa reservation had not been allotted, and that he put his fence on the east side of his claim in order to take in all of his ground on the east side of the same; that he knew that thirty-three feet on each side of the section line should be left for road purposes; that there was a trail along the east line of his fence, and that a considerable number of the people living north used this trail or road. On page 299 of record, Mr. Pulliam testified that he moved his first fence put along the east side of his claim, west about twenty feet, and that he intended to leave twenty feet "for the road;" that he knew that the law required thirty-three feet on each side of the section line should be left for a road, but did not believe the law applied to the boundary line of the Territory. By an act of Congress it is provided that a space of sixty-six feet shall be left between the sections in Oklahoma for the use of the public as a highway; we know of no law that provides for a different rule along the boundary line of the Territory which constitutes, as claimed by F. S. Pulliam, forty feet instead of sixty-six feet as a public highway along the boundary line of Oklahoma. If our position is correct in the premises, it follows, we think, that Pulliam's fence on the east side of his claim, according to his testimony, was thirteen feet west of the Iowa or meridian line on the opening day, and hence according to the evidence in this case, neither Pulliam nor Doty made their first settlement on the claim in dispute, but settled and staked upon Oklahoma lands homesteaded by F. S. Pulliam, father of contestant Harry Pulliam. However, the uncertainty about where the legal location of the meridian line was at the time and place when the respective parties made settlement on said claim in the afternoon of September 22, 1891, and the unusual circumstances attending their settlement upon said tract of land, creates so many doubts in our judgment, that we cannot arrive at any conclusion in this case different from the findings of the Hon. Commissioner of the General Land Office in the case of Miranda O. Jackson, now Cox, et al. v. Samuel G. Garrett (letter "H" June 30, 1894). In the case referred to, the land immediately south of that in controversy was taken on the opening day by the parties mentioned in said decision under similar circumstances as the one in dispute was taken by Doty, Pulliam and Miss Bradford, all of the parties on the opening day stepping across the line and claiming the respective tracts of land as a homestead. We are of the opinion that the rule applied by the Hon. Commissioner of the General Land Office in the case of Miranda O. Jackson et al. v. Garrett, so far as division, etc., applies in the case now before us. Therefore we recommend that Charles J. Doty, the entryman, Harry Pulliam, first contestant, and Nettie J. Bradford be allowed to make a division of the land in contest, having regard for the legal subdivisions, and that if they are unable to come to an agreement that the claim be sold to the highest bidder of the three. From this decision Doty and Pulliam appealed to your office. So far as the evidence shows the facts, I am of the opinion that Doty violated the law by voluntarily and purposely entering on the land before noon of September 22, 1891, and that he is, therefore, disqualified. Homestead entry No. 7761 is therefore held for cancellation. As both Miss Bradford and Pulliam have made a reasonable compliance with the law by their improvements and residence on the land, and as Miss Bradford's improvements are on the north half and Pulliam's principal improvements on the south half, it would be but equitable to divide the land between them, and it is so ordered. |