History of public land law development

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358 HISTORY OF PUBLIC LAND LAW DEVELOPMENT too much in a vacuum instead of as a continuation and indeed an expansion of a policy that Congress had been pursuing since 1827 when it first granted land to Illinois and Indiana for canals.51 There is a fairly straight line of development from the first of these canal grants in 1827 to the railroad grants, as Douglas pointed out in 1850.52 The lands to be granted in Illinois had been subject to sale for 23 years on the average and had not found purchasers. Douglas used an argument which misled most contemporaries and most subsequent writers, by maintaining that if one half the land within a strip extending 6 miles on each side of the road were given for construction and the other half of the land were raised 100 percent in price, the government would lose nothing. Since some sections and quarter-sections within the 6-mile primary grant area had already been sold, particularly in the vicinity of the Illinois and Michigan Canal, Douglas proposed to create an indemnity area (the lieu land area) 6 to 15 miles from the road on each side where lands could be selected by the railroad in lieu of those lost in the primary area.53 Had the double-minimum price been applied to the government-reserved sections within the indemnity area Douglas might have been right. But this was not required by the Act of 1850 or any later measure, and neither Douglas nor any later defenders of his theory have mentioned the fact that much of the land the Illinois Central Railroad received was in the 6- to 15-mile indemnity area and it naturally followed that such land as the govern- 51 John Bell Sanborn, Congressional Grants of Land in Aid of Railways ("Bulletin of the University of Wisconsin" No. 30, Madison, Wis., 1899), reflects this un-awareness of the background of the alternate-section grant and double-minimum price for reserved lands. Later writers followed Sanborn's treatment. i2Cong. Globe, 31st Cong., 1st sess., April 29, 1850, p. 845. 63 As provided in the Illinois Central-Chicago and Mobile grant indemnity lands were to be selected from lands "most contiguous to the tier of sections" that were lost to the railroad. Section 2 of the Act of Sept. 20, 1850. ment had left was also mostly within the indemnity area and was to be sold at $1.25 an acre. After 1853 Congress made an interesting change whereby the states, and later railroads, were to receive odd numbered sections, instead of even numbered sections within the primary grant. This avoided for the railroads the loss of section 16 in states admitted before 1850 and sections 16 and 36 for states admitted after 1850. There was one exception to this, for the grant of August 11, 1856, to Mississippi reverted back to even sections, but thereafter only odd sections were granted. This change further assured that the government could not recover from the double-minimum the equal of what it might have gotten from the sale of all the land.54 Isaac Walker, Senator from Wisconsin, best known for his advocacy of free land to actual settlers, took vigorous exception to the double-minimum price required for the sale 54 A glance at Sectional Maps Showing the Location of Over 2,500,000 Acres Selected Farming and Wood Lands in the State of Illinois (Chicago, 1867) illustrates this for there were large areas in which the railroad received no land within the 6-mile limit, some, indeed in which it found no indemnity land. Later when land grants were under attack by the West and when the movement for their forfeiture was under way, and still later when the railroads were trying to free themselves of the land grant rates, they argued that lands donated before construction were worth little and that the government received more than lands would have brought without the building of the railroads. Neither with respect to the Illinois Central grant nor any other grant made later was there any prospect of the government's recovering from the reserved lands now raised to the double-minimum the amount it might have received had it not given one-half the land away. I have shown the fallacies in the argument concerning the double-minimum in "The Railroad Land-Grant Legend," Journal of Economic History, XIV (Spring 1954), 143-46. Though professional historians have long known better, the Association of American Railroads at this late time still persists in the notion that the government recovered from the reserve sections the full SI.25 an acre for the granted lands by the double-minimum price for its sections, though there is not a scintilla of evidence in behalf of the hoary old myth. See its brochure of 1968: The Case of the Vanishing Passenger Train.