Bardon v. Northern Pacific Railroad

delivered the opinion of the court.

The plaintiff, the Northern Pacific Railroad Company, a corporation organized under the act of Congress of July 2, 1864, 13 Stat. 365 , c. 217, entitled “ An act granting lands to aid in the construction of a railroad and telegraph line from Lake Superior to Puget’s Sound on the Pacific coast by the northern route,” and having its principal places of business in the city of New York, in the-State of New York, and in

The bill, as amended, sets forth the most important provisions of the act of Congress organizing the company and authorizing it to “locate, construct, furnish, maintain and enjoy, a continuous railroad and telegraph line Avith the appurtenances, namely, beginning at a point on Lake Superior, in the State of Minnesota or Wisconsin, thence, westerly, by the most eligible- railroad route, as should be determined by your-orator, within the territory of the United States, on a line north of the forty-fifth degree of latitude, to some point on Puget’s Sound, with a branch via the valley of the Columbia River to a point at or near Portland, in the State of Oregon,” and vesting it with the powers, privileges and immunities necessary to carry into effect the purposes of the act.

By the third section of the act a grant of land is made to the company. The section, so far as it bears upon the questions involved, is as foiloAvs :

“ Sec. 3. And be it further enaeted, That there be, and hereby is, granted to the Northern Pacific Railroad Company, its successors and assigns, for the purpose of .aiding in the construction of said railroad and telegraph line to the Pacific ■coast, and-to secure the safe and speedy transportation of the mails, troops, munitions of war and public stores, over the route of said line of raüway, every alternate section of public land, not mineral, designated by odd numbers, to the .amount of twenty alternate sections per mile, on each side of said railroad line as said company may adopt through the Territories of the United States, and ten alternate sections of land per mile on each side of said railroad whenever it passes through any State, and whenever on the line thereof the United States have full title, not reserved, sold, granted ■ or otherwise appropriated, and free from preemption, or other claims or rights/at the time the line of said road is definitely fixed, and a plat thereof filed in the office of the Commissioner of the General Land Office; and Avhenever, prior to said

The Northern Pacific Railroad Company, under this act of incorporation, proceeded to designate the general route of its proposed road, and afterwards to have its line definitely fixed.' The necessities of the case do not require us to go into a very close consideration of these matters. The admissions of counsel reduce the.questions for decision within narrow limits. It is conceded that the premises in controversy lie within the place limits of the grant to the Northern Pacific Railroad Company, and that the title to them would pass to that company under the grant and the compliance of the company with its conditions, unless they are excepted from the grant by the facts admitted in the pleadings and-the stipulation of parties.

Among the facts admitted are these: That on and prior to September 12,1855, the tract of land, in relation to which this suit was brought, had been surveyed by the United States and was a part of the public domain, subject to sale by preemption and otherwise as then provided by law; that on that day James S. Robinson, Jr., settled upon the land, and that he was at the time a qualified preemptor; that on the 21st of September following he filed his declaration of settlement upon the land, under the preemption laws, with the register ánd re

It is thus seen that when the grant to the Northern Pacific •Railroad Company was made, on the 2d of- July,- 1864, the premises in controversy had been taken up on the preemption claim óf Robinson, and that the preemption entry made was uncancelled ; that by such preemption entry the land was not at the time a part of the public lands; and that no interest therein passed to that company. The grant is of alternate sections of public land, and by public land, as it has been long settled, is meant such land as is open to sale or other disposition under general laws. All land, to which any claims or rights of others have attached, does not fall within the designation of public land. The statute also says that whenever, prior to the definite location of the route of the road, and of course prior to the grant made, any of the lands which would otherwise fall within it have been granted, sold, Reserved, occupied by homestead settlers, or preempted or otherwise disposed of, other lands are to be selected in lieu thereof under the direction of the Secretary of the -Interior. There would therefore be no

In Wilcox v. Jackson, 13 Pet. 498 , 513, this court field that whenever a tract of land has been legafiy appropriated to any purpose, from that moment it becomes severed from the mass of public lands, and no subsequent law, or proclamation, or sale will be construed to embrace it, or to operate upon it, although no reservation of it be made. The validity and effect of the appropriation do not depend upon its not being subjected afterwards to ^cancellation because of the omission of some'particular duty of the party claiming its benefit.

In Witherspoon v. Duncan, 4 Wall. 210 , 218, this court held that if a party entitled by law to enter land at the land office, does so, when the certificate of entry is given to him, a contract is executed between him and the government, and thereafter the land ceases to be a part of the public domain. The court considered the question whether there was any difference in such case between a cash and a donation entry, the one being complete when the money was paid,, and the other not until it was confirmed by the General Land Office and a patent issued. There, it is true, the question was as to the power of a State to tax the land before the patent issued, and the court said if the law on the subject is complied with and

In Hastings &c. Railroad Co. v. Whitney, 132 U. S. 357 , 361, this court, in commenting upon the decision in the case last cited, said: “ The fact that such an entry may not be confirmed by the land office on account of any alleged defect therein, or may be cancelled or declared forfeited on account of non-compliance with the law, or even declared void, after a patent has issued, on account of fraud, in a direct proceeding for that purpose in the courts, is an incident inherent in all entries of public lands.” And it added : “ In the light of these decisions, the almost uniform practice of the department has been to regard land, upon which an entry of record valid upon its face has been-made, as appropriated and withdrawn from subsequent homestead entry, preemption, settlement, sale or grant until the original entry be cancelled or declared forfeited ; in which case the land reverts to the government as part of the public domain, and becomes again subject to entry under the land laws.”

The case of Leavenworth, Lawrence & Galveston Railroad v. United States, 92 U. S. 733 , well illustrates this doctrine. It was here at October .term, 1875, and was elaborately argued. It was a suit in equity brought by the United States to establish their title to certain tracts of land, and to enjoin the railroad company from setting up any right or claim to them. A grant had been made by the act of Congress of March 3, 1863, to the State of Kansas of certain tracts of land lying in what is- known as the “ Osage country,” to aid in the construction of certain railroads and telegraph lines in that- State. Within the limits of the Osage country there had been reserved by treaty -with the Great and Little Osage tribes of Indians certain described tracts of land in that State so long as they might choose to occupy the same. ( 7 Stat. 240 .) The act contained words of conveyance similar to those used in other grants by Congress to aid in the construction of rail

On the argument of the case the United States maintained that the granting act, though not mentioning the claim of the Indians, did not affect their lands, and was not intended to do so. The railroad company, on the contrary, contended that although the grant did not operate upon any specified lands until the road was located, it covered the lands in controversy, and by the extinction of the Indian title they had, in the proper sense of the term, become public lands. But the court answered that the grant was made for the purpose of aiding a work of internal improvement, and did not extend beyond that intent; that the grant was one in prmmti; and that the words “there be and is hereby granted” were those of absolute

The lands granted were designated by odd-numbered sections within certain definite limits, and only the public lands, said the court, owned absolutely by the United States were subject to survey and division into sections, and to them only was the grant applicable. It embraced, therefore, only such as could at the time be sold and enjoyed, and not those which the Indians, pursuant to treaty stipulations, were left free to enjoy. In affirmance of its views the court added that since the land system was inaugurated the grants of the government, either to individuals or to aid in works of internal improvement, had always been recognized as attaching only to so much of the public domain as was subject to sale or other disposal, although the roads of many subsidized companies passed through Indian reservations, observing that such grants could not be otherwise construed, for Congress could not be supposed to have thereby intended to include land previously appropriated to another purpose, unless there was an express declaration to that effect. A special exception' of it was not necessary, because the policy which dictated them confined them to land which Congress could rightfully bestow without disturbing existing relations and producing vexatious conflicts.

In Buttz v. The Northern Pacific Railroad, 119 U. S. 55 , a portion of the land granted was in the occupation of certain Indian tribes, and the act provided that the United States should extinguish, as rapidly as might be consistent with public policy and the welfare of the Indians, their title to all lands- falling under the operation of the act and acquired in the donation to the road ■— a provision which distinguished the grant from the one in The Lemenworth Case. In The Buttz Case, the grant passed the land, therefore, to the railroad company subject to the Indians’ right of occupancy, which could only be interfered with or determined by the United States.

In The Lemenworth Case, the appellant, the railroad com

Three justices, of whom the writer of this opinion was one, dissented from the majority of the court in The .Leamenworth Case; but the decision has been uniformly adhered to since its announcement, and.this writer, after a much larger experience in the consideration of public land grants since that time, now readily concedes that the rule of construction adopted, that, in the absence of any express provision indicating otherwise, a grant of public lands only applies to lands which are at the time free from existing claims, is better and safer, both to the government and. to private parties, than the rule which would pass the property subject to the liens and claims of others. The latter construction -would open a. wide field of litigation between the grantees and third parties.

From the decisions cited, and approving, as we do, the reasons on which they are founded, it follows that the land in controversy, upon which Robinson had made a preemption claim as early as September 12, 1855, it being then open to preemption sale, and subsequently filed his declaration of settlement under the preemption laws, and by whose heirs, after his death, payment of the purchase price had been made, and to them a receiver’s receipt therefor given, and a certificate of entry issued to them, was severed from the mass of public lands from which the grant to the Northern Pacific Railroad Company could alone be satisfied. That preemption entry remained of record until August 5, 1865, when it was cancelled, but this was after the date of the grant to the Northern Par cific Railroad Company, and also after the dates of the Several grants made to the State of Wisconsin to aid in the construction of railroad and telegraph lines within that State. The cancellation, as already said, did not have the effect of bringing the land under the operation of the grant to the Northern Pacific Railroad. Company; it simply restored the land to the mass of public lands to be dealt with subsequently in the same manner as any other public lands of the United States not covered by or excepted from the grant.

No disposition was subsequently made of the land thus re

There was nothing in any of the proceedings of the Northern Pacific Bailroad Company, or of the companies to whom the land granted to Wisconsin was conveyed by the State, or in the acts of the appellant, which in any respect impaired her right to the completion of her preemption claim, or to the full fruition of her perfected title.

It follows that

The deeree must be reversed, cmd the ecmse be remanded to the Circuit Court, with a direction to dismiss the bill ¡ amd it is so ordered.