Atlantic & Pacific Railroad v. Mingus

after stating the case, delivered the opinion of the court.

While the value of the land involved in this case is small, the question at issue between the parties affects the validity of the entire land grant of the company adjacent to and coterminous with all that part of the main line of the road not completed. on July 6, 1886. - The case turns wholly upon the validity of the act of that date, forfeiting that portion of the land grant.

Plaintiff claims in this connection that the act was invalid, inasmuch as the United States had failed to perform their own .obligations in two particulars: First, that they not only failed to extinguish the Indian title to lands along the prescribed route of the road, but had since further encumbered the grant by the creation of additional Indian reservations, carved out of the granted lands. , Second, that they also largely "failed to survey the lands as required by the sixth section, although repéatedly urged and requested to do só by the railroad' company.

1. The reservéd rights of the United States with respect to this land grant are contained in the eighth, ninth and twentieth sections of the original act, and are as.follows: By § 8 the grant was made subject to the condition that the company ■ should commence work within two years from the approval of the act, and should complete not less than fifty-miles a year after the second year,, and should complete the main line of'

The position of the plaintiff is .that the rights of the United States were fixed and limited by § 9; that Congress did not intend that the grant should ever be forfeited, but that, upon a breach of any of the conditions, the United States could only take steps itself to insure the speedy completion of the road.

What steps the government could take in that direction, and what the effects of its action upon the land grant might be, it is difficult to decide. It would seem highly inequitable, however, that if the government.were compelled to go on and complete the road at its own expense the company should yet be able to retain the land grant, the condition of which was the completion of the road at its expense. The act makes no provision- whatever for the disposition of the land grant in this'.contingency. What remedy the government would have had in case it had elected itself to go on and complete the road is left entirely to conjecture. Some further action on the part of Congress would seem to have been necessary.

Aside from this difficulty, however, we are clearly of opinion that Congress intended to impose this simply as a “further condition,” consequent upon a breach by the railroad company of its stipulations, and to reserve to the United States the. option of forfeiting the grant entirely, or of taking measures to insure the speedy completion of the road. This further condition was obviously intended for the benefit of the government, and with no. purpose of merging other con- . ditions,' or-of superseding.other remedies to which it might be entitled. While, by the act of July 27, 1866, like other similar acts passed about the same time, it - was doubtless -intended that .the grant should operate m prcesenti% it certainly never could have? befen contemplated, that, in case the

But little light is to be gained in the consideration of this question by referring to the conditions for forfeiture or reinvestment of title under other railway land grant acts. There is no such uniformity in the terms of their conditions subsequent as to lead us to give'any different construction to the three sections in question than such as their language plainly requires. It cannot be. supposed'that Congress intended to vest a title in the railway company to this enormous grant of lands without contemplating that the Government might in some way reacquire it in case of a failure of the company to comply with the conditions of the grant. No express provision for a forfeiture was required to fix the rights of the Government. If an estate be granted upon a condition subsequent, no express words of forfeiture or reinvestiture of title are necessary to authorize the grantor to reenter in case of a breach of such conditions. Stanley v. Colt, 5 Wall. 119 ; Mead v. Ballard, 7 Wall. 290 ; Ruch v. Rock Island, 97 U. S. 693 ; Hayden v. Stoughton, 5 Pick. 528 ; Jackson v. Allen, 3 Cowen, 220; Gray v. Blanchard, 8 Pick. 283 . And the fact that

2. As to the proper construction of the act of April 20,1871. This act, in general terms, authorized the railroad company to make and issue its bonds in such sums as it pleased, and to mortgage its road, etc., to secure them, with a proviso that if the Company should thereafter suffer any breach of the conditions of its act of organization, the rights of those claiming under the mortgage of the land grant should extend only to-so much thereof as should be “ coterminous with or appertain to that part of said road which shall have been constructed at the time of the foreclosure of said mortgage.” Conceding that, with respect to the rights of the mortgagees, at least, this act was a condonation of the breach of any condition which had previously occurred, it left the rights of the Government unimpaired with respect' to any breach which should thereafter occur, and expressly limited the rights of the mórt-gagées to such land as should appertain to and be coterminous with the completed portion of the road at the time of the foreclosure. It is insisted by the plaintiff that the final words of this act indicate an intention on the part of Congress to extend the time for the construction of the road until such time as the mortgagees might see fit- to foreclose. But we do not so read it. There is nothing in the act evincing an intention on the part of Congress to waive any of the conditions of the act of 1866, except so far as such conditions .had already been broken. Congress doubtless anticipated that the mortgage might be foreclosed, and desiring to provide against the possible contingency that the mortgagees might claim the right to sell the entire .land grant upon the foreclosure, declared that it should operate only upon that part of the.grant, appertaining to the completed portion. If there were any ambiguity in this act we should feel bound, upon familiar principles, to give the Government the benefit of the doubt, Dubuque & Pacific Railroad v. Litchfield, 23 How. 66 , 88; Leavenworth, Lawrence &c. Railroad v. United States, 92 U. S. 733 , 740 ; Coosaw Mining Co. v. South Carolina, 144

3. Coming -now to .the act of 1886, forfeiting the ’guant, it is claimed-in the first place that Congress has no right by-simple act to forfeit a title already vested, without providing for á judicial inquiry as to whether there has been a breach of a condition on the part of the grantee, and the legal effect of such breach; and, also, whether there has not been a-breach on the part of the United States which would estop them from claiming a forfeiture. There, is no doubt that, where an estate .is granted'subject to a condition subsequent, the mere fact that there has been a breach of such condition will not revest the title in the grantor without some act or declaration upon his part. Ruck v. Rock Island; 97 U. S. 693 , 696. In this case'it was said by Mr. Justice Swayne that .fit was not denied by the plaintiff that the title had passed, and that the

But where the grant is a public one,- this court has held in a series of cases that the remedy of the Government is by an inquest of office or office found, a judicial proceeding but little used in this country, or by a legislative act directing the possession and appropriation of the land.

Blackstone defines an inquest of office as “ an inquiry made by the king’s officer, his sheriff, coroner or escheator, virtute officii, or by writ to them sent for that purpose, or by commissioners specially - appointed, concerning any matter that entitles the king to the possession of lands or tenements, goods' or chattels. This is done by a jury of. no determinate number p being either twelve, or less, or more. . . . These inquests of office were devised by law, as an authentic means to. give the king his right by solemn matter of record; without which he, in general, can neither take nor part from anything.” 3 Black. Com. 258, 259.

The necessity of an inquest of office was considered by this court at an early day in two cases. In Smith v. Maryland, 6 Cranch, 286 , it was held that, by the confiscation act of Maryland, passed in 17S0, before the adoption of the Constitution, interests in land were completely divested by operation of lawx without office found.- The validity of the act was apparently not considered.

Subsequent cases 'in this court have asserted this power to exist beyond -any- controversy. As was said in United States v. Repentigny, 5 Wall. 211 , 268: “The mode of asserting or of assuming the forfeited grant is subject- to the legislative authority of the Government.- It may be after judicial investigation, or by taking possession directly, under the authority of the Government, without these preliminary proceedings.” Practically the same language is used in Schulenberg v. Harriman, 21 Wall. 44 , 63. In Farnsworth v. Minnesota & Pacific Railroad Co., 92 U. S. 49 , 66, we said: 6 A forfeiture by the’ State of an interest in lands and connected franchises, granted for the construction of a public work, may be declared for non-compliance with the conditions annexed to their grant or to their possession when the forfeiture is .provided by statute, without;.-judicial proceedings to ascertain and determine’ the failure of the grantee to’perform the conditions. Such mode of ascertainment and determination — that isrby judicial proceedings — is attended with many .conveniences and advantages over vany’ other mode, as it establishes as-matter of record, importing verity against the grantee,-the facts-upon which the forfeiture depends, and thus avoids uncertainty in pities and consequent litigation. But that .mode is not essential to the divestiture of the interest -where the grant-is for .the accomplishment of an object in which the public is concerned, and is made by a law which .expressly provides .for the forfeiture when that., object is not accomplished. Where land and franchises are thus held, any public assertion by legislative act of the ownership of the Stake, after default of the grantee- — such as an act resuming control of them vand appropriating them to particular uses, or granting -them to

These cases were all quoted with approval, and the doctrine reasserted in McMicken v. United States, 97 U. S. 204 , 217; Van Wyck v. Knevals, 106 U. S. 360 , 368.

These cases are not put upon the ground that the United States reserved the right to declare a forfeiture, or even provided expressly for a reversion of title in case of a breach, but upon the general ground that the Government was vested, with the same right as a private grantor, upon breach of a condition subsequent, though such right was, from the necessities of the case, to be exercised in a somewhat different manner, viz., by legislative act instead of reentry.

But while we think the practice of forfeiting, by legislative act is too well settled to be now disturbed, we do not wish to be understood as saying that this power may be arbitrarily exercised, or that the grantee may not set up in defence any facts which he might lay before a jury in a judicial inquisition. It would comport neither with the dignity of the Government nor with the constitutional rights of the grantee, to hold that the Government by an arbitrary act might devest the latter of his title when there had been' no breach of the conditions subsequent, or when the Government itself had been manifestly in default in the performance of its stipulations. The inquiry in each case is a judicial one, whether there has been, upon either side, a failure to perform, and it makes but little practical difference whether s.uch inquiry precedes or follows the reentry or act of forfeiture.

The charge, in this connection, is that the Government not only failed in its legal obligation' to extinguish the Indian titles and to survey the lands, but, upon the contrary, has still further burdened these titles'with the very cloud it stipulated to remove by additional reservations in favor of the Indians. The main contest in the case has been upon this point. In locating the road between Springfield, in Missouri, and Albuquerque, in New Mexico, the most direct route lay,, for 350 miles, through the Indian Territory. To determine whether the Government has been derelict in this particular, it is nec

Indeed, it is open to serious doubt whether that large tract' of. land, known distinctively as the Indian Territory, is a Ter-: ritory of the United States within the meaning of the act. While, for certain purposes, such for instance as the enforcement of the criminal and internal revenue laws, it has beery recognized as such, and within the jurisdiction of the United States, United States v. Rogers, 4 How. 567 ; The Cherokee Tobacco, 11 Wall. 616 , a reference to some of the treaties, under which it is held by the Indians, indicates that it stands in an entirely different relation to the United States from other

Under the guaranties of these and other similar treaties the Indians have proceeded to establish and carry on independent governments.of their own, enacting and executing their own laws, punishing their, own -criminals, appointing, their own officers, raising and expending théir own revenues. Their position, as early as 3855, is indicated by the following extract

“ A question has been suggested whether the Cherokee people should be considered or treated as a foreign state or territory. The fact that they are under the Constitution of the Union,- and subject to acts of Congress regulating trade, is a sufficient answer to the suggestion. They are not only within our jurisdiction, but the faith of the nation is pledged-for-their protection. In some respects they bear the same relation to the Federal Government as a Térritory did in its second grade of government under the ordinance of 1787. Such Territory passed its own laws, subject to the approval of Congress, and its inhabitants were subject to the Constitution and acts of Congress. The principal difference consists in the fact that the Cherokees enact their own ^ laws, under the restriction-stated, appoint their own officers, and pay their own expenses. This, however, is.no reason -why the laws and proceedings of the Cherokee territory, so far as relates to rights claimed under them, should not be placed upon the same footing as other Territories in-the Union. It is not a foreign,-but a domestic territory — a Territory which’originated under our Constitution and laws.”

Similar language is used with reference to these Indians in Holden v. Joy, 17 Wall. 211 , 242. Under these circumstances it could scarcely be expected that.the United States should be. called upon to extinguish, for the benefit of a.railroad company, which had chosen to locate its route through this Territory, a title guaranteed to the Indians by solemn treaties and which had been possessed -by them for upwards of forty years with the powers of an almost independent government.

-The terms of the second section, of the land grant act' indicate that' nothing of this kind was contemplated. The United States did not agree to extinguish the Indian title absolutely but only “as rapidl} as may be’ consistent with public policy and the welfare of the Indians, and only by their voluntary cession.” Whether an extinguishment of an Indian title at all was consistent with public policy and the welfare of the Indians could only be determined by Congress, or the execra-

In Bultz v. Northern Pacific Railroad, 119 U. S. 55 , wherein a grant to the Northern Pacific Railroad, with a similar provision for the extinguishment of Indian titles, was under consideration,. it was held that,- under the principal treaties applicable to that case, the grant operated to convey the fee to the. company, subject to the right of occupancy by. the Indians, but that the right of the Indians could not be interfered with or determined, except by.the United States;' that no private individual could invade it, and the manner, .time and conditions of its extinguishment were matters solely for the consideration of the Government, and were not' open to contestation in the judicial tribunals. It appeared in .that case that the United States had full title to the lands, subject to a mere right of occupancy on thé part of the Indians.

With respect to the power of the United States to extinguish the Indian titles, it was observed in Beecher v. Wetherby, 95 U. S. 517 , 525: “ It is to be presumed that in this matter the United States would be governed by such considerations of justice as'would control a Christian people in their treatment of an- ignorant and dependent race. Be that as it may, the propriety or justice of their action towards the Indians, with respect to their'lands is a question' of governmental policy, and is not a matter opere to discussion in a controversy between third parties, neither of whom derives title from the Indians.”

The railroad company was in no position to insist that the Government should extinguish these titles, at least without affirmatively proving that the Indians were willing to- make the cession, and that it was consistent with public; policy and their own general welfare to permit them to do áo. It made the Government its arbiter in this particular. Indeed, it is doubtful if the engagement of the Government -amounted to anything more than an expression of its willingness to assist the company in acquiring Indian titles, if the company could per---suadethe Indians to relinquish such titles, and'the Government

Plaintiff admits that there was a reserved discretion in the Government as to the circumstances under which the Indian titles should he extinguished, but insists that, so long as that discretion was exércised and performance withheld, the Government was in- no position to assert a right of forfeiture- — -in other words, that so long as fulfilment by the company remained impossible, by reason of the failure; of the Government to keep its promises, no matter for what reason, the power to insist upon perforvnance. by the railroad was postponed. We consider this construction of the compact unsound. The railroad company took its chances with the Government in this particular. The latter might not deem it sound policy or for the welfare of the Indians to extinguish their title, or it might not procure their assent. Under neither contingency would the company have the right to complain nor to set up this non-performance as a defence to its own failure'to build

4.. The defence that other reservations were made to these Indians‘after' this act-was passed stands upon a somewhat, different basis. So far as these Indian reservations were in the Indian' Territory they are immaterial, since we have already held that lands in that Territory did not pass, and it could make no difference whether they were reserved for one tribe or another. Of the reservations in New Mexico and Arizona most of them were made-after July 4, 1878, the time fixed for the completion of the road, and at a time when the Government had a right to declare the grant forfeited. All -thesé reservations, toó, ryere made opposite portions of the rqad which were actually built, and cannot be made available as an excuse for not' completing the other portions. None of them seem to affect in any way the lands coterminous with the unconstructed portion. ' There was no restriction upon the right of the Government to. dispose of public lands in any way

.5. It is finally contended that the Government failed to ful-fil its obligation to survey the lands, and; that this was .a condition precedent to its right to declare a forfeiture. This obligation is contained in the sixth section in the following language: “That, the President of the United States shall cause-the lands’to be surveyed , for forty miles in width on both sides of the entire line of said road, after the general route shall be fixed, and as fast as may be required by the construction of said railroad.” Evidently the failure to do. this did not prevent the company from realizing the full value of the land granted by mortgaging the road, and it is open to doubt whether it could, under any circumstances, be insisted upon.as a defence to the forfeiture. It' is true that the railroad company offered to furnish the money for such surveys,, arid that the United States refused to accept it; but such offer was not made until 1881, three years after the time stipulated for the completion of the road, and’ at a time when the Government had a right to treat the. land grant as forfeited, although the act of forfeiture was not passed for five. years thereafter.

Upon the whole it does not seem to us that Congress exceeded its powers in forfeiting this grant. The plaintiff company seems to have undertakén its great enterprise in building a transcontinental railroad without' adequate appreciation of

The judgment of the; court .below must, therefore, be

Affirmed.

Me. Justice Gbay was not present at the argument and took no part In the decision of this case.