Chapter X

LAND GRANTS IN AID OF INTERNAL IMPROVEMENTS.

BY WILLIS DRUMMOND, JR.

The land grant system in favor of internal improvements has become a well settled policy of this Government, and has attained not only a social but a political importance.

Like other American institutions its growth has been rapid, and donations of that character now cover millions of acres of the public domain. Of grants for railroads, wagon roads, and canals alone, however, will this chapter treat, and no reference other than necessary to a proper examination of the question will be made to concessions whose terms place the lands under specific disposal by the States, such as those for the establishment of schools, reclamation of swamp lands, etc.

The majority of grants, therefore, coming within our notice will be those in aid of railroads, though many have been made in favor of wagon roads and canals. The latter have, however, almost become things of the past, and are rapidly being superseded by the railway. More than one canal has given way to the more popular and general means of transportation, and it is safe to say that no further donations for canal purposes will be made, unless the circumstances should be such as to absolutely demand that means of conveyance. At any rate, they will not be made for purposes of general improvement.

The object of this chapter is to point out the origin, growth, character, and extent of these concessions. It is therefore necessary to inquire into the early donations for various purposes.

The first act making a donation in favor of internal improvements was approved on the 30th of April, 1802, and was entitled “An act to enable the people of the eastern division of the territory northwest of the river Ohio to form a constitution and State government, and for the admission of such State into the Union on an equal footing with the original States, and for other purposes.”

By the third proviso to the seventh section of that statute, “one-twentieth part of the net proceeds of the lands lying within the said State sold by Congress, from and after the thirtieth day of June next, after deducting all expenses incident to the same”, was granted and given to the said State (Ohio), and was to be applied to the laying out and making of public roads leading to the Ohio River, to the said State, and through the same, from the navigable waters emptying into the Atlantic. Such roads were to be laid out under the authority of Congress, with the consent of the several States through which they passed.

By an act approved March 3, 1803, the Secretary of the Treasury was directed to pay, to such persons as the legislature of the State of Ohio should designate, 3 per cent. of the net proceeds, as above, which sums were to be applied to laying out, opening, and making roads within said State.

These acts, I believe, are the first two touching public improvements through congressional aid. Of course there had previously been many donations of land in favor of various persons, but they were for services rendered the Government, or special preëmption privileges.

Legislation similar to the acts above referred to, was enacted until the year 1824, varying only in the extent of the proceeds granted.

By an act approved May 26, 1824, the State of Indiana was authorized to open and build a canal, and the right of way with 90 feet of land on each side thereof, was granted, subject to use and occupancy for the purposes specified. Nothing, however, was done under that act by the State; and on the 2d of March, 1827, it was superseded by an act of greater extent. On that day two acts were passed giving to Indiana and Illinois, respectively, certain lands in aid of the construction of canals, the first to connect the navigation of the Wabash River with the waters of Lake Erie, and the second to connect the waters of the Illinois River with those of Lake Michigan. A quantity of land, equal to one-half of five sections in width on each side of said canals, was granted, reserving to the United States each alternate section. The canals were to remain public highways for the use of the Government, free from toll or other charge whatever; were to be commenced in five years, and completed in twenty years, or the States were bound to pay to the United States “the amount of any lands previously sold”, and the titles of the purchasers under the States were to be valid.

As soon as the lines of the canals were fixed and the selections of land were made, the States had power to sell, and give fee simple title to the whole or any part of the lands.

These may, properly, be considered the initiatory concessions of lands in favor of internal improvements.

As stated, a grant for right of way had been made, but that right was solely one of use and occupancy. In this case the right of the States to sell became absolute upon the selection of the lands. To be sure, they were liable to repay the Government the price received by the sale of any of the lands, but the titles of their purchasers were to be in “fee”; and by such right of disposal they were enabled to realize at once on their grant, and thereby secure a speedier construction of the canals.

On the same day (March 2) there was also granted to Indiana a certain strip of land formerly held by the Pottawatamie Indians, or the proceeds from the sale thereof, to be applied in building a road from Lake Michigan, via Indianapolis, to some convenient point on the Ohio River.

On the next day (March 3) an act was approved granting to Ohio one-half of two sections along the entire line of a road to be constructed from Sandusky to Columbus.

By an act approved May 23, 1828, a grant of 400,000 acres of “the relinquished lands” in certain counties in Alabama was made in aid of the improvement of the Tennessee and other rivers in that State; and in case that amount of “said relinquished lands” could not be found unappropriated, the necessary quantity could be selected from another section of the State. Provision was made for the sale of the lands, at the minimum price, but in case said lands or the proceeds thereof were applied to any purposes other than that for which they were granted, the grant was to become null and void.

In this grant we find the first provisions for indemnity if the grant was not full by reason of prior sales or disposals by the Government. There, if the lands were not to be found “in place”, selections “in lieu” could be made from another county.

Grants like the one just referred to were made from time to time, differing but little in their character and extent.

By an act approved March 2, 1833, the State of Illinois was authorized to apply the lands granted by the act of March 2, 1827, for canal purposes, to the construction of a railroad instead; and the same restrictive impositions were continued.

This is the first act looking to the construction of a railroad through the assistance of land donations.

The railroad system was then but in its infancy, and the few miles built had been constructed by private means.

It is proper to add, however, that the State did not avail itself of the privilege granted, for it subsequently built a canal.

An act approved March 3, 1835, granted, for the purpose of aiding in the construction of a railroad by a corporation organized in Florida, the right of way through the public lands over which it might pass, thirty feet of land on each side of its line, and the right to take and use the timber for “one hundred yards” on each side for the construction and repair of said road; it was also granted “ten acres of land at the junction of the St. Mark’s and Waculla Rivers”, the point where said road terminated. This was the first right of way grant in favor of railroads, the previous grant having been for a canal.

Following this came an act approved July 2, 1836, granting the right of way “through such portion of the public lands as remain unsold”, not to exceed 80 feet in width, to the New Orleans and Nashville Railroad Company. The first section of that statute required that a description of the route and surveys should be filed in the General Land Office within sixty days after the survey. The second section granted for depots, watering-places, and workshops, essential to the convenient use of the road, certain plats of land, not exceeding five acres in any one spot, nor nearer than fifteen miles to each other.

The third section gave the company the right to take from the public lands earth, stone, or timber necessary for the construction of the road; and provided that unless the work was commenced within two years after the approval of the act, and completed within eight years thereafter, the grant should “cease and determine”. It provided, moreover, that if the road should be abandoned or discontinued, even after its completion, the grant was to “cease and determine”.

So far as can be learned, this road was never completed. It is inserted so fully for the purpose of showing the gradual growth of the system.

Next to this came a grant to the East Florida and other railroads, similar in general terms to those previously referred to. It required, however, the companies to file, with the Commissioner of the General Land Office, maps showing the location of their roads. This was to be done within six months after such locations. I am unable to find that any of those roads were ever constructed. Certainly, no evidence thereof was ever furnished the General Land Office.

A grant similar to the one to the New Orleans and Nashville company was made by act of March 3, 1837, to the Atchafalaya Railroad and Banking Company in Louisiana.

Many grants of like character and extent were made from time to time, as also donations in favor of various other internal improvements. The greatest of these latter, however, were the grants in aid of improving the navigation of the Des Moines River in Iowa, and the Fox and Wisconsin Rivers in Wisconsin, which were approved August 8, 1846.

The first of these made a grant to the then Territory of Iowa, for the purpose of improving “the navigation of the Des Moines River from its mouth to the Raccoon Fork (so called), in said Territory”, of “one equal moiety, in alternate sections, of the public lands (remaining unsold, and not otherwise disposed of, encumbered, or appropriated), in a strip five miles in width on each side of said river, to be selected within said Territory by an agent or agents to be appointed by the governor thereof, subject to the approval of the Secretary of the Treasury of the United States”. The second section provided that “the lands hereby granted shall not be conveyed or disposed of by said Territory, nor by any State to be formed out of the same, except as said improvements shall progress; that is, the said Territory or State may sell so much of said lands as shall produce the sum of thirty thousand dollars, and then the sales shall cease until the governor of said Territory or State shall certify the fact to the President of the United States that one-half of said sum has been expended upon said improvement, when the said Territory or State may sell and convey a quantity of the residue of said lands sufficient to replace the amount expended, and thus the sales shall progress as the proceeds thereof shall be expended, and the fact of such expenditure shall be certified as aforesaid.”