the road be not completed,) is a condition subsequent, being in effect a provision that the grant to the extent of the lands unsold shall be void if the work designated be not done within the period prescribed. After some discussion as to the manner in which the reserved right of the grantor for breach of the condition must be asserted, so as to restore the estate, the court say: "In the present case no action has been taken either by legislation or judicial proceedings to enforce a forfeiture of the estate granted." (Schulenberg et al. vs. Harriman, 21 Wall., 44.) It will, therefore, be seen that provisions for reversions are conditions subsequent, and cannot operate until a declaration of forfeiture, either by some judicial proceedings authorized by law, or by legislative assertion of ownership on the part of the United States; and if this be not enforced, the title remains unimpaired in the grantee. I append hereto a tabular statement showing the grants in this condition, the dates on which they were made, with reference to the acts of Congress by volume and page of the statutes; the road for whose benefit they were made; the States or corporations to which granted; the dateof expiration of the grant by limitation of statute; the estimated quantity of lands which would inure to the State or corporation under the grant if road had been completed in due season, and which had been withheld from ordinary disposition; the number of miles of line constructed; the approximate quantity of lands which the State or corpora tion has earned under the grant by partial completion of the road, and the quantity patented or certified under the grant up to June 30, 1877. The roads named in the list were uncompleted at the date of the expiration of their respective grants, so far as this office has been advised, and most of them remain in that condition. Great bodies of land which have not been earned, and which of course cannot be patented to the States or corporations under the grants, are withheld from sale or entry, and there is no manner now by which settlers can acquire title to them. The companies cannot sell, and this office has no authority to recognize appropriations made under the various laws. I think it important that some action should be taken by Congress, looking either to the enforcement of the forfeiture of the grants or extending the time for the completion of the roads. If the latter course should be pursued the claims of bona fide settlers who have gone upon the lapsed lands in large numbers, and whose entries thereof have, in many instances, been permitted by the district officers, should be recognized, protected, and confirmed. As their cases now stand there is but one course for this office to pursue in passing upon such claims and entries, and this works great hardship, which should be avoided as a simple matter of justice in case the grants are resuscitated and extended. I, therefore, recommend that the attention of Congress be specially called to this subject, and that legislation thereon be urged. Below is a list of the companies, together with the date of the act granting the lands, expiration of the time allowed for completion of the load, quantity granted, &c. List of railroad land grants which have lapsed by reason of non-com July 3, 1871 16 579 Company 20 miles.. 10 miles.. Feb. 9, 1853 10 155 States May 5, 1864 13 66...do S Mar. 3, 1857 11 195 Territory 10 miles.. 6 miles.. 10 miles.. 6 miles.. 10 miles.. 10 miles.. 20 miles.. Various.. *It is understood by this office that the Alabama and Chattanooga Railroad was co npleted within the While the time for the completion of the Atlantic and Pacific Railroad does not expire until July 4, of the act of July 27, 1866. Arkansas and 6 miles.. Missouri. do 10 miles.. Michigan 6 miles.. 6 miles.. .do 10 miles.. 6 miles.. Wisconsin 10 miles.. pletion of roads within periods prescribed by acts making the grants. period prescribed, but no evidence thereof has been filed as required by the granting act. 1878, the grant is liable to forfeiture for breach of the conditions imposed by the 8th and 9th sections TIMBER DEPREDATIONS.-TIMBER LANDS. In my annual report to you of last year, attention was called to the subject of depredations upon the timber on the public lands of the United States. The vast extent of these depredations and the great loss to the Government were represented, and recommendation was made for legislation by Congress to enable the survey, appraisement, and sale of the timber lands of the United States, but no legislation was enacted by Congress upon this subject. A brief history of past action is as follows: The first action by this Department in regard to depredations on the public lands was by the appointment of what were termed "timber agents." No law of Congress is referred to in these appointments, and it is presumed that the Secretary of the Interior made them as incident in the performance of his duty in protecting that portion of the public. property coming under his jurisdiction. No appropriation was made for their payment, but they were instructed that their compensation and expenses would be paid from the proceeds of their agencies, if sufficient for that purpose, and if not, the residue out of the judiciary fund. They were instructed that the proceeding would be by indictment, or by seizure under proper process of the timber or lumber cut, and their sole duty under their instructions was to obtain and furnish information to the United States district attorney or marshal, as the case might require. The Solicitor of the Treasury is authorized by law "to instruct the district attorneys, marshals, and clerks of the circuit and district in all matters and proceedings appertaining to suits in which the United States is a party or interested, (Stat. vol. 4, p. 415, sec. 379; Revised Statutes, U. S., p. 62,) and he was advised of the appointment of timber agents and of their acts, he gave them instructions, and he also instructed the United States district attorneys and marshals to render to these agents any aid and co-operation in their power. * * With letter dated January 19, 1854, from George C. Whiting, chief clerk of the Department, all of the letters and other papers that had theretofore been filed in the Department in relation to depredations committed upon the public lands of the United States were transmitted to this office, with the remark that— The fact that many questions, intimately connected with the disposition of the public lands, are necessarily involved in the adoption of proper measures for the protec tion of the public property thereon, has induced the Secretary to commit the whole subject to your sound judgment and discretion as the public officer who from position and experience in such matters is most properly chargeable therewith. Under date of January 28, 1854, a circular was issued by the Commissioner of the General Land Office to timber agents; also another, dated March 4, 1854. At the last date there appears to have been four of these agents, viz, two in Michigan, one in Wisconsin, and one in Iowa. These circulars, in addition to the duties prescribed in the appointments by the Secretary, contained instructions that the timber agents could seize and sell timber cut from the public lands independently of the marshal or of legal process. Under date of December 24, 1855, a circular was issued by this office to registers and receivers, in which it is stated that The Secretary of the Interior has concluded to change the present system of timber agencies, and to devolve the duties connected therewith upon the officers of the local land districts. By his direction, therefore, you will, upon the receipt of these instructions, take charge of the timber business within the limits of your land district, as a part of the general duties of your office; and it is accordingly hereby assigned to you as such, with the understanding that hereafter it is to be considered and held as a proper incident to, and, in fact, a part of, your general duties, covered and satisfied by the salary which the law provides for your respective offices. Following this there are quotations from opinions of Attorneys General, showing the right of the United States to protect the property belonging to them. A law and decision of the Supreme Court of the United States are also cited. The law cited is the act of March 2, 1831, entitled "An act to provide for the punishment of offenses committed in cutting, destroying, or removing live oak or other timber or trees reserved for naval purposes." (4 Stat. L., 472.) This act, as amended by act of July 10, 1832, (4 Stats., 572,) is embraced in and continued in force by sections 2461 and 2462, p. 453, and section 4751, p. 932, of the Revised Statutes of the United States. The act of March 2, 1831, consisted of three sections, which, as. amended, correspond with the three sections of the Revised Statutes mentioned. The first section provides a fine for cutting or removing timber from the lands of the United States of "not less than triple the value of the tree or trees or timber so cut, destroyed, or removed,” and imprisonment for not exceeding twelve months. The second section provides for the forfeiture of the ship or vessel and tackle, apparel, and furniture for taking on board timber unlawfully cut, and for fine of captain for exporting same. The third section provides that the penalties and forfeitures incurred under the first and second sections Shall be sued for, recovered and distributed, and accounted for, under the directions of the Secretary of the Navy, and shall be paid over, one-half to the informer, if any, or captors, where seized, and the other half to the Secretary of the Navy, for the use of the navy pension fund; and the Secretary is authorized to mitigate, in whole or in part, on such terms and conditions as he deems proper, by an order in writing, any fine, penalty, or forfeiture so incurred. The decision of the Supreme Court cited is that of The United States vs. Ephraim Briggs, (9 Howard, p. 351,) in which it is held that the true construction of the act 2d March, 1831, is that it extends not only to the cutting of timber reserved for naval purposes, but to" other timber," and that the cutting and using of any other description of timber trees from the public lands would be equally indictable under this act. This case was first before the Supreme Court in 1847, (5 Howard, p. 208,) and was, therefore, instituted before the creation of this Department (Act March 3, 1849, 9 Statutes, 395, provides for Interior Department,) but under what supervision I am not advised. The circular of December 24, 1855, looks to an euforcement of the act of 1831. The 6th section contains the following: "In the enforcement of the said act of 1831 you should be careful," &c., but I am not able to state in how many instances the enforcement of this act through the courts has been induced by the action of registers and receivers. I find that with letter dated August 19, 1870, the receiver of the land office at La Crosse, Wis., forwarded the claim of C. C. Miller for $96, being for compensation, at $3 per day, for thirty-two days spent in attendance at court on occasion of the trial of a trespass on public timber. In this case the trespasser, Andrew Scott, was sentenced to thirty days' imprisonment, and to pay a fine of $1,500 and costs of suit. Mr. Miller, in submitting his account, says: I have been advised to make application for half the fine under the law, which gives one-half the fine to the informer, but do not see my way clear to do that, as I was acting as Government agent, and only did my duty in following up the case. And the receiver says: Mr. Miller, on the trial, was something more than a witness; he was, as we believe, the active agent during the trial, who marshaled the evidence for the prosecution and greatly aided in bringing the criminal to justice. Although he received pay as a witness, (which pay would not nearly pay his board,) both the register and myself think this additional amount of $3 a day should be allowed him. |