by John Marshall Harlan

“ The construction of a railroad increases the value of contiguous lands. Congress doubles the price of the even-numbered sections which it retains. It makes no little difference to a company whether it receives lands along the line of the road which it constructs, lands which have been increased in value by reason thereof, or an equal amount of lands hundreds of miles away and not so increased in value. ”

“ On May 31, 1870, and twentyseven days after the grant to the Oregon Central Railroad Company, Congress passed an act which authorized the Northern Pacific company to construct a line from Portland to Puget sound, with the privileges and grants provided for in the original act of incorporation, and it was held that the rights of the Oregon Central Railroad Company antedated and were superior to those of the Northern Pacific. First in time, first in right, is as to lands within place limits the settled rule of railroad land grants. ”

“ The purpose and effect of a withdrawal are not to vest any title in the beneficiary of the grant, but to preserve the lands from private entry in order that when the time arrives the grantee may receive the full measure of its grant. As said in Menotti v. Dillon, 167 U.S. 703, 720, 721, 42 L. ed. 333, 339, 17 Sup. Ct. Rep. 945, 951:
'It is true, as said in many cases, that the object of an executive order withdrawing from pre-emption, private entry, and sale lands within the general route of a railroad, is to preserve the lands, unencumbered, until the completion and acceptance of the road. . ”

“ Nor is there anything inconsistent with this view of the 6th section as to the general route, in the clause in the 3d section making the grant operative only upon such odd sections as have not been reserved, sold, granted, or otherwise appropriated, and to which preemption and other rights and claims have not attached, when a map of the definite location has been filed. The 3d section does not embrace sales and pre-emptions in cases where the 6th section declares that the land shall not be subject to sale or pre-emption. ”

“ No person acquainted with the condition of that section of country supposes that there can be very extensive settlements until the government shall encourage those settlements by the construction of some work like this.' And by Senator Harlan, the chairman of the Committee on Public Lands: 'The Committee on Public Lands agree to report this bill favorably on account of the vast consequence that will attach to the completion of the road. The land is to be conveyed to the company only as the road progresses. ”

“ Stat. § 2264) that a person intending to preempt shall, 'within thirty days after the date of such settlement, file with the register of the proper district a written statement.' That is, the pre-emptioner had thirty days after settlement within which to make his entry, while when we turn to the homestead law (Rev. Stat. § 2290) [1] we find that a party seeking to homestead 'shall, upon application to the register of the land office in which he is about to make such entry, make affidavit . ”

“ The recent and temporary ruling of the Land Department was in the former case sustained in order, as was said, to protect the settler. Here the continuous practice of the department is disregarded, and the patent issued by it to the railroad company is overthrown. ”

“ Sometimes these orders are not made until there is an immediate necessity therefor, but more frequently the necessity for their making is anticipated.'
And in the same volume (Inman v. Northern P. R. Co.) ”

“ But that proposition throws no light on the question as to the scope of the withdrawal given by § 6, and when the cases themselves are referred to not one of them conflicts with the proposition I have heretofore laid down. I have already shown what was decided in St. Paul & P. R. Co. v. Northern P. R. Co. ”