On the 5th of May, 1864, similar grants were made to the States of Minnesota and Wisconsin, and on the 12th of May to the State of Iowa. Various other grants followed of like character, differing only in few respects, to Arkansas, Alabama, Missouri, Iowa, Michigan, Minnesota, and Kansas; as also grants for wagon roads. The latter were similar in terms to the railroad grants, save that three sections on either side of the roads were given instead of six or ten. The Northern Pacific was created July 1, 1864, and was very much like the Union Pacific grant, except in extent, being double the quantity through the Territories, with provision for “indemnity”. The Atlantic and Pacific and Southern Pacific grants were made by act of July 27, 1866; the Denver Pacific by act of March 3, 1869; the Southern Pacific (branch line) and Texas and Pacific by act of March 3, 1871.
Many of the grants made in early years were enlarged, and the time for their completion extended; but thus far only four grants have been declared forfeited. At present, however, about twenty grants have “lapsed” by reason of non-compliance with the terms of the granting acts, requiring completion within prescribed periods, and recommendations have been made urging proper legislation.
Neither time nor space permit an extended examination of every grant, but sufficient has been considered to point out the origin and growth of the system.
We have seen that the first donation was one-twentieth part of certain proceeds derived from the sale of lands; then ninety feet of land, followed soon by one-half of five sections per mile on each side; then by six sections; then by ten, and finally by twenty sections per mile on each side of the road.
If the lands granted, or in other words embraced within the limits of the grants, could be found available, the companies, not including those for canals or wagon roads, would receive, provided each built its road and complied with the laws, more than two hundred and fifteen million acres. That quantity if embraced in one compact body, would form an area of more than three hundred and thirty-five thousand square miles, or a tract of land more than seven times as large as the State of Pennsylvania, and only about six thousand miles less than the area of the thirteen original States. But, in fact, the grants will not realize near that quantity, and the estimate, as made by the Land Department, is only about one hundred and eighty-seven million acres.
By the aid of those grants, however, about fifteen thousand miles of road have been constructed. Those roads have been the means of developing vast fields of magnificent territory, and securing to the people many lesser lines built by private capital.
The various grants have been the subject of much explanatory, amendatory, and confirmatory legislation, and have also received numerous interpretations by the different courts. Of the latter, I deem it proper to refer only to the more important rulings of the Supreme Court which bear upon the fundamental principles underlying the whole system.
In nearly all grants, except the Pacific, provision has been made for indemnity in case it appeared, when the lines of the roads had been definitely fixed, that the United States had sold, disposed of, or reserved any of the sections or parts of sections contained within the grants. The theory has heretofore existed that “indemnity” was allowed for all tracts which might not be found subject to the operation of the grant; and selections have been permitted in lieu of such disposed of or reserved tracts.
A recent decision, however, casts some doubt upon the correctness of this theory. The question came up in a case from Kansas, under the act of March 3, 1863, and the court declared:
“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.”