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Show 458 HISTORY OF PUBLIC LAND LAW DEVELOPMENT against the large withdrawals which immobilized so much land and prevented areas from developing. William A. J. Sparks, in his first annual report as Commissioner of the General Land Office in 1885, took a strong position questioning the legality of these withdrawal orders, now in use for 35 years, but for which he could find no actual authority. Early granting acts had provided for the return to the public domain of the lands granted and withdrawn if the railroad was not completed within 10 years. Forty of the 70-odd railroads receiving land for construction had failed to complete their lines within the required time, and Congress was now being importuned to make extensions for many of them. But western critics were questioning how much longer these grants should be withheld from development in the hope that some time in the future the lines would be built. It was commonly assumed that failure to build within the established time limit would automatically lead to cancellation of the grants and the return of the lands to the public domain. In 1874, however, the Supreme Court declared in the case of Schulenberg v. Harri-man that only by congressional action could grants be forfeited and until such action was taken the grants remained in effect and subject to disposal as in the past.52 Anyone familiar with western attitudes toward public lands, especially withdrawn lands withheld from development by Exec-road Land Grants," Mississippi Valley Historical Review, XXXIII (June 1946) , 28, accepts as the maximum amount of land possible in the grants for railroads 49 million acres to the states and 174 million acres to railroad corporations. For a defense of the Land Department in the matter of withdrawals see John iB. Rae, "Development of Railway Land Subsidy Policy in the United States" (Ph.D. dissertation, Brown University, 1936), pp. 289 ff. Ba 88 U.S. Reports 44. A number of proposed southern railroads received grants in 1856, the utive orders, or anyone who had seen white intrusions on Indian reservations could have predicted that the withdrawal orders would be generally disregarded by claim makers, whether settlers or not. This proved to be the case. Although Commissioners of the General Land Office were not in the forefront of the land reform movement, N. C. McFarland in 1882 did feel it necessary to bring to the attention of his chief, Henry M. Teller, the serious embarrassment caused by the failure of Congress either to renew lapsed grants or declare them forfeited. "Large number of settlers are occupying such lands [neither earned nor forfeited], and it is important to them to know whether they can receive their titles from the United States, or whether they will be required to purchase them from the railroad companies. The prevailing uncertainty necessarily retards improvements and impairs values. New applications are constantly being made to enter the withdrawn lands under the public land laws. I deem it of pressing importance to the public interests that Congress should take early action in respect to these lands were withdrawn, and although maps of definite locations were filed no lands were approved to the states for the roads and neither was any mileage built and on the 10th anniversary of the original act "the reservation of lands for the road ceased. . . ." Included were the Gulf and Ship Island, the Tuscaloosa to Mobile, the Mobile to New Orleans, the Elyton and Beard's Bluff, the Savannah and Albany. Letter of N. C. McFarland. Commissioner, General Land Office, March 27, 1882, to S. J. Kirkwood, Secretary of the Interior, H. Ex. Doc, 47th Cong., 1st sess., Vol. 22 (Serial No. 2030) , No. 144, pp. 3-10. The Commissioner reported (p. 169) that of one Florida and two Alabama railroads for which Congress had granted land there was "no evidence of the construction of any part of these roads, as required by the acts," and that "the grants are presumed to have lapsed, but the lands have not been restored to the mass of public lands, Congress having taken no action to that end." The roads were the Coosa and Tennessee, the Mobile and Girard, and the Pensacola and Georgia; their grants called for 1,847,141 acres. |