ACTS OF CONGRESS 335 



SCHOOL LANDS RESERVED. SEC. 578 



the ordinance of July 23d of the same year 'Lot No. 16' in every township was 

 granted for school purposes. This policy became the fixed and settled policy of 

 the government immediately after the adoption and ratification of the federal 

 Constitution ; its earliest development in practical legislation being found, per- 

 haps, in the act of April 30, 1802, the enabling act under which Ohio was ad- 

 mitted as a state into the union. In that act certain propositions were offered by 

 the United States to the people <>f the incipient state 'for free acceptance or re- 

 jection' ; the first of which was 'that the section, number sixteen, in every town- 

 ship, and where such section has been sold, granted or disposed of, other lands 

 equivalent thereto, and most contiguous to the same, shall be granted to the in- 

 habitants of such township, for the use of schools.' In all laws passed sub- 

 sequent to this act, relating to the primary disposition of the soil, section No. 

 16 in every township has been reserved from sale for the use of schools, and in 

 the acts authorizing the admission of new states into the union these sections 

 have been granted to the state for that purpose. The act creating the Territory 

 of Washington made a like reservation, the reservation, however, including sec- 

 tion 36 as well as section 16 ; and, when the territory was admitted as a state, 

 these sections were granted it for use of the common schools. But so solicitous 

 was Congress for their preservation and maintenance that it annexed a condition 

 to the grant, to the effect that the land so granted should not be sold for less 

 than $10 per acre, and that the proceeds thereof, when sold, should constitute a 

 permanent school fund, the interest only of which should be used in support of 

 such schools." State ex rel. Pt. Townsend v. Clausen, 40 Wash. 95. 



SCHOOL RESERVATIONS AS PUBLIC LANDS. "Because of the mere reservation 

 or appropriation by the United States of these sections for the purpose of being 

 applied to the common schools of the future, do they lose their character of pub- 

 lic lands? It is true that they are not 'public lands' in that they are open to 

 entry, etc., but that fact alone does not prevent them being in a certain sense 

 public lands. The government has, for a wise purpose, set apart and reserved 

 these lands from the general domain, and announced the purpose to which they 

 will be devoted. It retains control and dominion over these until the happening 

 of a certain event. It is somewhat of a trustee of an expressed trust. It also 

 retains the right, up to a certain time, to annul the act by which such sections 

 were severed, and might, within that limit, annul the former act, and throw 

 these lands open, as 'public lands.' This reserved right in the government must 

 give it control over these lands as absolute as that of any owner could be. As is 

 well said, ever since the organization of the territory these school sections have 

 been recognized as 'public lands,' and the courts have sustained all the rights of 

 the government, whenever their aid has been invoked, in preventing trespass upon 

 them. Any other doctrine would lead to a practical annulment of the act of 

 Congress, and render nugatory the effort to provide for and establish a common 

 school system." Barkley v. U. S. (1888), 3 Wash. Ter. 522. 



And so this act and other acts reserving lands for the future state did not 

 sever the reserved lands from the public domain to such an extent that a valid 

 appropriation of water upon such lands could not be made prior to the final 

 grant made by sec. 583, post : State ex rel. Glaring v. Stampfly, 69 Wash. 368 ; 

 Barnes v. Belsaas, 73 Wash. 205. 



And the same were public lands within the terms of the acts prohibiting 

 the enclosure of public lands of the United States : Barkley v. U. S., 3 Wash. 

 Ter. 522; (19 Pac. 36). 



And of the acts of congress granting rights of way for highways over public 

 lands : Peterson v. Baker, 39 Wash. 275. 



For cases from other states, see 41 Cent. Digest, col. 16, sec. 8. 



SELECTION BY TERRITORY. 



It was the intention of Congress that the sate should have the full amount 

 of land contained in the grant of sections 16 and 36, and the selection of lands 



