•N854 JOINT CONGRESSIONAL COMMITTEE ON THE INVESTIGATION OF THE NORTHERN PACIFIC RAILROAD LAND GRANT NORTHERN PACIFIC LAND GRANTS JOINT CONGRESSIONAL COMMITTEE ON THE INVESTIGATION OF THE NORTHERN PACIFIC RAILROAD LAND GRANTS, Monday, March 23, 1925. The committee met at 10.30 o'clock a. m., Hon. N. J. Sinnott (chairman) presiding. The CHAIRMAN. The committee will come to order. Are you going to proceed this morning, Mr. Kerr? Mr. KERR. If it is your pleasure. The CHAIRMAN. You have been sworn, have you not? TESTIMONY OF JAMES B. KERR-Resumed Mr. KERR. Yes, sir; I have been sworn. When I closed on Friday noon in order to permit Mr. Bunn to make a statement I was discussing point 4 in Mr. McGowan's summary. You will recall that that was a request that was made by the Acting Forester of the Secretary of the Interior that in the adjustment he deduct from the Northern Pacific grant the area of conflict with the Portage, Winnebago & Superior Railroad, which involved an area in the State of Wisconsin of 370,378 and a fraction acres. That point 4 is restated on page 16 of our brief. Judge Raker suggested that I go into the law and the facts with respect to that point, although I rather assumed that in the first instance the determination of that question would be by the Commissioner of the General Land Office and the Secretary of the Interior, but under the construction placed upon the joint resolution creating this committee it may be, and doubtless is, proper for this committee to consider the questions affecting that acreage. It all arises under the provisions of section 3 of the Northern Pacific charter of 1864, which says: Provided, That if said route That is, of the Northern Pacific shall be found upon the line of any other railroad route to aid in the construction of which lands have been heretofore granted by the United States, as far as the routes are upon the same general line, the amount of land heretofore granted shall be deducted from the amount granted by this act: Provided further, That the railroad company receiving the previous grant of lands may assign their interest to said Northern Pacific Railroad Co., or may consolidate, confederate, and associate with said railroad company upon the terms named in the first section of this act. Now, if the members of the committee will turn to page 18 you will see a little sketch which shows the constructed line of the Portage, Winnebago & Superior, extending from Portage to Ashland, Wis., and a broken line extending from Ashland to Bayfield, and thence from Bayfield to Superior, and also a solid line showing the construc 875 tion of the Northern Pacific Railroad from Superior to Ashland. Our argument to the Secretary of the Interior and the Commissioner of the General Land Office is that it can hardly be said that the lines from Superior to Ashland of these roads were upon the same general route; that the most that can be said in any event The CHAIRMAN (interposing). What is the distance there? Mr. KERR. It is 77 miles by the Northern Pacific route, substantially longer by the Portage-Winnebago line. Mr. WILLIAMS. How much longer is it by the other route? Mr. KERR. Well, I don't know. The road was never built. It was located by the Portage, Winnebago & Superior, but never built. I suppose-it would be a mere guess, but I should suppose it would be 115 or 120 miles. We say that for the distance from Superior to the point where the dotted broken line of the Portage, Winnebago & Superior crosses the Northern Pacific, it might be said that the roads were on the same, substantially the same line, but hardly that they could be upon the same general route. In determining whether or not they were upon the same general route The CHAIRMAN (interposing). Is the area in controversy only between Superior and Ashland? Mr. KERR. Yes; that was all. The total area which would have passed to the Portage, Winnebago & Superior if it had constructed this located line between Ashland by way of Bayfield to Superior would have been 370,378 acres, and it has been held by the commissioner in this report which has been made to the Secretary of the Interior, and which has been transmitted to this committee by the Secretary of the Interior, that that total area should be deducted from the area of the Northern Pacific grant in determining the quantity that the Northern Pacific was entitled to receive. Now, I will say first that in determining the construction of the words "found upon the same general route". The CHAIRMAN (interposing). Just before you go to that, in the tentative adjustment of the Secretary were they going to allot those lands to the Northern Pacific? Mr. KERR. In the original tentative adjustment which was criticized by Mr. McGowan, it was stated that one of the open questions was the disposition of these lands in this area. The Secretary in that tentative adjustment did not express an opinion one way or the other, except that he rather inclined to the view that they should be deducted. The CHAIRMAN. What is the date of that tentative adjustment, do you recall? Mr. KERR. December 19, 1923, was the date when the commissioner made that so-called tentative adjustment. Mr. VAILE. In this letter from the General Land Office to the Secretary of the Interior, in the preliminary report to the Secretary of the Interior, the General Land Office, referring to the proposition to deduct the area in conflict, says: This proposition is approved. Said memorandum stated that this deduction would be made. In the present adjustment said deduction has been made. Mr. KERR. I don't know whether that is absolutely clear. Will you give me the page of that. Mr. VAILE. That is page 8 in this preliminary report. Mr. KERR. Yes, but I was trying to get the tentative adjustment of December 19, 1923. Do you know that page, Mr. McGowan? Mr. McGowAN. I haven't got my tentative adjustment here, Mr. Kerr. Mr. VANDOREN. Page 8 of the tentative adjustment, if I might suggest. Mr. KERR. The one of December 19, 1923, is the one I am looking for. Can you tell me where that is in the printed volume? Mr. VANDOREN. I do not believe it is in the printed volume. Mr. KERR. Yes; this is referred to in the tentative adjustment of the Secretary of the Interior of December 19, 1923, which is found in the report of the hearings before the House committee, and on page 196 of that record the first point is the one relating to this possible deduction. The Secretary considers the question and then says, on page 198: In view of the facts set forth it would appear that said area of 370,378.05 acres should be deducted from the area of the grant to the Northern Pacific Railway Co., as provided by section 3 of the grant, thereby reducing the deficiency to that extent. I take it that was not a final determination, first, because it was a tentative adjustment and also because of the language, but the argument against the construction now placed upon that language and upon this state of facts by the Commissioner of the General Land Office must, as it seems to us, be reached through a consideration of the last clause of that portion of section 3, which says that the railroad company receiving the previous grant of land may assign their interest to the Northern Pacific Railroad Co. or may consolidate confederate, or associate. Mr. VAILE. Will you tell Judge Raker what point you are on? Mr. KERR. We are discussing point 4, Judge Raker, proposed deduction of three hundred and seventy thousand and odd acres of the Portage, Winnebago & Superior Railroad from the quantity to be granted to the Northern Pacific Railroad Co. Mr. RAKER. Yes; I regret that I was not here in time to hear you begin that. Mr. WILLIAMS. Mr. Kerr, as you proceed to discuss this point, there is one feature that I was not quite clear about. I wish you would give us the facts. On page 19 of your brief filed here you say that the area of the Portage, Winnebago & Superior grant between these points is but 113,791.70 acres, of which 82,792.33 acres had previously been granted in aid of the Superior Branch of the Omaha Railroad. In the tentative decision and other places throughout this record there is a reference to 370,378.05 acres. Mr. KERR. Yes. Mr. WILLIAMS. Will you please explain the difference in those figures and how they arrive at that? Mr. KERR. The area of one hundred and thirteen thousand and odd acres is the area from the point where the dotted line of the Portage, Winnebago & Superior Railroad on the map on page_18 crosses the line of the Northern Pacific westward to Superior. Between those points-as I said a moment ago, it might be said that those roads were parallel, and perhaps Mr. WILLIAMS. That is, running east from Superior? Mr. KERR. Yes. Mr. WILLIAMS. To the point where the dotted line crosses the Northern Pacific line, there is involved in that part from Superior east, 113,000 acres? Mr. KERR. Yes. Mr. WILLIAMS. While there is involved from Superior to Ashland, following the route around through Bayfield, 370,000 acres? Mr. KERR. That is correct. Senator KENDRICK. Mr. Kerr, did I understand you to say that this Winnebago road was never constructed? Mr. KERR. It was never constructed, except from Portage to Ashland, upon this solid line. The located line from Ashland to Superior, the dotted line, was never constructed. Senator KENDRICK. And did the Northern Pacific Railway secure a transfer of the rights of this road? Mr. KERR. No, it never did. Senator KENDRICK. The rights to the grant? Mr. KERR. No, it never did. Perhaps I had better go back a little and make the point clear. The question is not as to the title to the lands in this conflict; the question is as to whether, because of this language in section 3 of the Northern Pacific charter, the area, the total area of the Northern Pacific grant is to be reached by deducting the quantity of lands which the Portage, Winnebago, Superior road would have received if it had constructed from Ashland via Bayfield to Superior. There is no claim by anyone that these lands were not carved out of the Northern Pacific grant, because the grant to the Portage, Winnebago & Superior was, by the act of May 5, 1864, two months earlier than the grant to the Northern Pacific, and furthermore, the grant to the Omaha company, which took not only those 82,000 acres at the west end of this sector, but other lands as well, was by the act of 1857. So that within those limits opposite the line which the Northern Pacific constructed from Superior to Ashland, there was very little unappropriated land in that territory. But the question is as to whether under those circumstances the Northern Pacific was entitled to take indemnity for the lands so carved out of the grant, and if the Commissioner of the General Land Office is correct in this adjustment which is now before you, in holding that this is a situation falling within the purview of this clause of section 3, that where the route of the Northern Pacific falls upon the same general line as that of a road having a prior grant that the quantity of the land appurtenant to the prior grant should be deducted from the grant to the Northern Pacific-that is the question to which I am addressing myself. Now, my first answer to that is The CHAIRMAN (interposing). You said something about the question of taking indemnity lands for these lands. Mr. KERR. Yes; the Secretary of the Interior has held that we were entitled to indemnity lands in place of these lands in this territory, and we say that that was the settled construction of the Interior Department, and as the courts have said many times where the uniform construction of an administrative department of the Government is one way and that continues for a long period of time, the courts will not permit a change in a construction of that kind. That is the third argument that I want to make. 1 |