The Fight Over Washington’s Missing School Sections

Port Townsend, April 27.—An important land case was argued here before Judge Hanford, of the United States court. It involves the title to several hundred thousand acres of school land in the state of Washington, Montana, North and South Dakota, and the case will eventually reach the supreme court of the United States.

The township in which the city of Port Townsend is situated is a fractional township, containing seven and three-quarters of a full township. Before the government survey it had been taken up under the donation claim act, and section 36 was almost wholly under water. In 1869 the county commissioners appointed an agent to go to Olympia and select lieu lands for these deficiencies, and he selected land for the township. The selections were confirmed by the secretary of the interior, and ever since the land has been held to be reserved. All offerings of the tract have been rejected by local land officers, and on appeal these rejections have been approved by the head officers of the department. The questions are now for the first time before a court.

The defendant in his demurrer raises the point that even if the law of 1864 authorized lieu selections for fractional sections, it did not apply to the state of Washington, and that the state could take only as much land as was selected as a strict right. The defendant also contends that the law of 1869 did not apply to Washington because the state had been fully provided for in the act of 1853 organizing the territory. The state might select lieu lands for those taken up by settlers on either of the school sections prior to survey, but could not make selections in lieu of deficiencies from natural causes.

Prosecuting Attorney W. Rupert, who represents the state, contends that the law of 1869 is applicable to Washington as well as to other states, and that it was the intent of Congress to grant to states and territories or to the public land states for the support of public schools. He concedes that in 1873, upon the approval and adoption of the revised statutes of the United States, this township might have selected only 640 acres of lieu land, but claims that in 1869, perceiving that the law of 1864 was not in force, Congress enacted a law which permitted a township similar to this to select 1,280 acres of lieu lands, and that by such act the law of 1869 was revived.

The defendant’s principal contention is that the enabling act for the admission of Washington as a state is to be taken as the sole schedule of grants of public lands for public purposes, and it is argued that the enabling act by implication repeals all previous grants or reservations of the public domain. This contention is supported by a decision of Acting Commissioner Stone of the general land office, who held in the Silas M. Shipley case on June 10, 1894, that the enabling act repealed all previous acts authorizing the selection of indemnity lands in Washington and annulled all selections made by the state prior to that time. The case was argued and taken under advisement.