101 F. 316 (D.Or. 1900), 2,272, United States v. Oregon & C.R. Co.

Docket Nº:2,272, 2,273, 2,388, 2,405, 2,422, 2,501, 2,560, 2,561.
Citation:101 F. 316
Party Name:UNITED STATES v. OREGON & C.R. CO. (eight cases).
Case Date:April 27, 1900
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 316

101 F. 316 (D.Or. 1900)



OREGON & C.R. CO. (eight cases).

Nos. 2,272, 2,273, 2,388, 2,405, 2,422, 2,501, 2,560, 2,561.

United States Circuit Court, D. Oregon.

April 27, 1900

Page 317

John H. Hall, U.S. Dist. Atty.

Wm. D. Fenton and Wm. Singer, Jr. (Wm. F. Herrin, of counsel), for defendant.

Thayer, St. Rayner & Schnabel, for homestead and pre-emption claimants.

BELLINGER, District Judge.

These are suits to cancel patents issued by the United States to the defendant company, conveying the title to certain odd sections of land within the indemnity limits of the land grants made by congress to aid in the construction of the defendant's railroad from Portland to the southern boundary of Oregon, and of its road from Portland, on the west side of the Willamette river, to the town of McMinnville, in this state. The questions to be determined arise under two acts of congress granting the land to aid in the construction of said railroads,-- one of July 25, 1866 (14 Stat. 239), known as the 'East Side Grant,' and the other of May 4, 1870 (16 Stat. 94), known as the 'West Side Grant.'

Section 2 of the act of July 25, 1866, provides:

'That there be, and hereby is, granted * * * 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, and when any of said alternate sections or parts of sections shall be found to have been granted, sold, reserved, occupied by homestead settlers, pre-empted or otherwise disposed of, other lands designated as aforesaid shall be selected by said companies in lieu thereof, under the direction of the secretary of the interior, in alternate sections designated by odd numbers as aforesaid, nearest to and not more than ten miles beyond the limits of said first named alternate sections, and as soon as said companies, or either of them, shall file in the office of the secretary of the interior a map of the survey of said railroad or any portion thereof, not less than sixty continuous miles from either terminus, the secretary of the interior shall withdraw from sale public lands herein granted on each side of said railroad, so far as located, and within the limits before specified.'

The act of May 4, 1870, after making grant of lands within the primary limits of the road, provides as follows:

'And in case the quantity of ten full sections per mile cannot be found on each side of said road, within the said limits of twenty miles, other lands designated

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as aforesaid, shall be selected under the direction of the secretary of the interior on either side of any part of said road nearest to and not more than 25 miles from the track of said road to make up such deficiency.'

The suit is brought by the United States for the benefit of some 30 pre-emption and homestead claimants who settled upon the lands in question after the defendant's map of survey or definite location of its railroad was filed with and accepted by the secretary of the interior, and after the railroad had been constructed, and accepted by the United States, but before the company filed its lists of selections in the local land office. Those who had thus made settlement upon these lands were in actual occupation of the same at the time the defendant's selections thereof were filed and approved for patenting; and after such...

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