United States v. Oregon & California Railroad

delivered the opinion of the court.

This suit involves the title to a large body of lands in the State of Oregon covered by patents issued by the United States to the Oregon and California Railroad Company, a corporation organized under the laws of Oregon. Its object is to obtain a decree cancelling those patents as well as certain conveyances made by the company.

The suit was brought by the Attorney General in 1893 under the authority of the act of March 3, 1887, c. 376, entitled “An' act to provide for the adjustment of land grants made- by Congress to aid in the construction of railroads and for the forfeiture of unearned lands and for other purposes.” By that act the Secretary of the Interior was directed to adjust, in accordance with the decisions of this court, each of the railroad land grants made by Congress to aid in the construction of railroads and theretofore unadjusted. Its second section provided that “if it shall appear, upon the completion of such adjustments respectfully, [respectively,] or sooner, that lands have been, from any cause, heretofore erroneously certified or patented, by. the United States, to or for the use or benefit of any company claiming by, through or under grant from the United States, to aid in the construction of a railroad, it shall be the duty of the Secretary of the Interior to thereupon

The defendants demurred to the bill for want of equity, but the demurrer was overruled. 57 Fed. Rep. 890 . They then filed a joint and several answer and proofs were taken by the parties. By- the decree of the Circuit Court patents of May 9, 1871, July 12, 1871, June 22, 1871, and June 18, 1877, purporting to convey to the Oregon and California Railroad Company the lands in dispute (which are fully described by metes and bounds in the decree) were cancelled as being null and void. By the same decree a warranty deed of February 26, 1880, to the defendant John Av Hurlburt, a deed of November 5, 1879, to Jacob Goldstrap — each of which deeds was' executed by the railroad company — a deed by Goldstrap to Sylvester Evans, and a deed from the latter to Thomas L. Evans of July 13, 1883, were also cancelled as null and void. 69 Fed. Rep. 899 . The case was then carried to the Circuit Court of Appeals where the decree of the Circuit Court was reversed with directions to dismiss the bill. 77 Fed. Rep. 67 .

The facts necessary-to a clear understanding of the questions raised by the.pleadings are as follows:

By an act approved July 25, 1866, c. 242, Congress authorized the California and Oregon-Railroad Company, a California corporation, and such company as the legislature of Oregon should thereafter designate, to lay out, locate, construct, finish and maintain a railroad and telegraph line between Portland, Oregon, and the Central Pacific Railroad in California — the Oregon Company to construct that part of the line in Oregon beginning at Portland and running thence southerly through the "Willamette, Umpqua and Rogue River valleys to the

For the purpose of aiding in the construction of such railroad and telegraph line and to secure the safe and speedy transportation of the mails, troops, munitions of war and public stores over the line of the.- railroad, every alternate section of public land, not mineral, designated by odd numbers, to the amount of twenty alternate sections per mile (ten on each side) of the railroad line,, were granted to those companies, their successors and assigns. If the alternate sections or parts,of sections so granted were found to have been “ grábted, sold, reserved, occupied by homestead settlers, preempted, or 'otherwise disposed of,” other lands, designated as aforesaid, were to be selected by the companies in lieu thereof, under the direction of the Secretary of the Interior, in alternate sections des- ' ignated by odd numbers, nearest to and not more than ten miles beyond the limits of the first-named alternate sections. It was made the duty of the Secretary of the Interior, as soon as the companies or either of them filed in his office a- map of the survey of the railroad or any portion thereof, not less than sixty continuous miles from either terminus, to withdraw from sale the lands granted on either side of the railroad as far as located and within the limits specified. § 2.

Whenever the companies or either of them had twenty or more consecutive miles of any portion of the railroad and telegraph line ready for service, it became the duty of the President to appoint three commissioners to examine the same, and when it appeared that twenty consecutive miles of railroad and telegraph had been completed and equipped in all respects as required, the commissioners were to report the fact under oath to the President, whereupon patents were to issue for the lands granted to the extent of and coterminous with the completed section of the railroad an‘d telegraph line; and from time to time whenever 'twenty or more consecutive miles of road and telegraph were completed and equipped, patents were to be issued upon the report of the commissioners, and so on until the entire railroad and telegraph authorized were constructed. § 4.

In case the companies failed to comply with the terms and conditions required, by not filing their assent thereto as provided in section six of the act, or by not completing the same as provided in that section, the act was to be null and void, and all the lands not conveyed by patent to the company or companies, as the case might be, at the date of such failure,’ should revert to the United States; and if the road and telegraph line were not kept in repair and fit for-use after the same were completed, Congress could -pass an act to put them in repair and use and direct the income therefrom to be de- . voted to the United States to repay all expenditures caused by the défault or neglect of the companies or either of them, or fix pecuniary responsibility not exceeding the value of the lands granted by the act. § 8.

’It appears from the bill filed by the United States that, by joint resolution of October 20, 1868, the legislature of Oregon designated the Oregon Central Railroad Company to receive the privileges and franchises and to perform the duties mentioned., in the act of July 25, 1866; that on the 29th day of October, 1869, that company, having previously accepted the grant contained in that act, filed with . the Secretary of the Interior in its map of “ definite location ” opposite to the lands in suit; that this map was accepted 'by the Secretary on January 29, 1870; that in February, 1870, the lands in dispute were all withdrawn in pursuance of orders issued by that officer; that on or about April 4, 1870, the Oregon and California Railroad Company, a corporation of Oregon, became the successor and assignee of the Oregon Central Railroad Company; that the road of that company was duly constructed opposite the lands in dispute within the time limited

The bill contained these averments: “Your orator shows that all the lands hereinbefore described are within the limits of the grant as prescribed in said act of July 25, 1866, whether place or indemnity. And your orator shows that the entire line of railroad of the said Oregon and Oalifornia Railroad-Company has been fully constructed and been duly accepted by the President of the ■ United States after due reports by commissioners on the several sections thereof, and has been continuously,, and still is operated by said company ; but a portion of said road, to wit, one hundred and sixty-three miles, was constructed after July 1, 1880.”

Referring to the conveyances made by the railroad company to the individual defendants, the bill admits that the purchasers w.ent- into actual possession, made valuable and permanent improvements and remained thereafter.in possession.- It then alleges that “ John A. Hurlburt and Thomas L. Evans each claim the title tb said lands respectively in fee simple, and your orator concedes that they were severally purchased and granted from the said Oregon and California Railroad Company in good faith- for value, relying on the apparent title to said lands under said patent from orator to said railroad company, and without, -actual notice of any defect in tt^e title of said company to said lands, as sqt forth in this bill. But your orator insists'that they were' chargeable with constructive notice of the several acts of Congress,' and that under the said acts of Congress ahd the acts and doings of the said railroad company no title could pass to said Hurlburt and Evans, and that said patent should be cancelled as to them as well as to the grantee therein, the said Orógon and California Railroad Company.”

In view of these facts, if the case depended alone on the act of July 25, 1866, the title of the defendants to these lands, as against the United. States, could not be questioned. ;

The Government, however, has insisted in its bilí- that the

By the last-named act it was among other things provided: “§1. That there is: hereby forfeited to the United States, and the United States hereby -resumes the title thereto, all lands heretofore granted to any State or to any corporation to aid in the construction of a railroad opposite to and coterminous with the portion of*any such railroad not now completed, and in operation, for the construction &r benefit of which such lands were granted; and all such lands are declared to be a part of the public domain ; Provided, That this act shall not be construed, as forfeiting the right of way or station grounds of any railroad company heretofore granted.” “ § 6. That no lands declared forfeited to the United States by this act shall by reason of such forfeiture inure to the benefit of any State or corporation to which lands may have been granted by Congress, except as herein' otherwise provided ; nor shall this act be construed to enlarge the area of land originally covered by any such grant, or to confer any right upon any State, corporation or peíson tó lands which were excepted from such grant. Nor shall the moiety of the lands granted to any railroad company on account of a main and a-branch line appertaining to uncompleted road, and hereby forfeited, within the conflicting limits of the grants for such main and branch lines, when but one of such lines has been completed, inure by virtue of the forfeiture hereby declared to the benefit of the completed line.” 26 Stat. 496 , c. 1040. .

The contention of the Government renders it necessary to

By that act the Northern Pacific Eailroad Company was created a corporation with authority to build a railroad and telegraph line from a point on Lake Superior in Wisconsin or Minnesota westerly by the most eligible route, as should be determined by the company, on a line north of the 45th degree of latitude, to some point on Puget’s Sound, “ with a branch via the valley of the Columbia, Eiver to a point at or near Portland, in the State of Oregon, leaving the main trunk line at the most suitable place, not more than three hundred miles from its western terminus.” The grant to that company was of “ 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 tide, 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 fix'ed, and a plat thereof filed in the office of the Commissioner of the General Land Office; and whenever, prior to said time, any of said sections or parts of sections shall have been granted, sold, reserved, occupied by homestead settlers, or preempted, or otherwise disposed of, other lands shall be selected by said company in lieu thereof, under the direction of the Secretary of the Interior, in alternate sections, and designated by odd numbers, not more thafi ten miles beyond the limits of said alternate sections.”

' By other sections of the act it was provided : “ § 6. That the President of the United States shall cause thé 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 ; and the odd sections of land hereby granted shall not be. liable to sale, or entry, or preemption before or after they are surveyed,

On the 6th day .of March, 1865, Josiah Perham, President of the Northern Pacific Eailroad Company addressed to Mr. Usher, then Secretary of the Interior, the following communication : “.Under authority from the board of directors of the Northern Pacific Eailroad Company, I have designated on the accompanying map in red ink the general line of their railroad from a point on Lake Superior, in the State of Wisconsin, to a point on Puget Sound, in. Washington Territory, via the Columbia Eiver, adopted by said company as the line of said railroad, subject only to such variations as may be found necessary after more specific surveys, and I respectfully ask that the same may be filed in the office of the Commissioner of the General Land Office, together with a copy of the charter and organization of said company, and that under your directions the lands granted to said company

Under date of March 9,1865, Secretary Usher wrote to the-Commissioner of the General Land Office as follows: “ Herewith I transmit a map upon which the ‘general line’ of the Northern Pacific Railroad, as . adopted by the board of directors of that .railroad company, is delineated; also a copy of 'the letter of the president of said company, dated the sixth instant, requesting .that the granted lands along said , line be withdrawn from the market. In view of the provisions of' the third and sixth sections of the act of Congress, approved July 2, 1864, should you perceive no objection, I think that the odd-numbered sections'along the line for ten miles in width on each side in Minnesota and Wisconsin, and for twenty miles in width on each side along that part of the line extending through the Territories westward to Puget Sound, may be withdrawn as requested, as preliminary to the final survey and location of said railroad.. 'The even-numbered sections along the line will, however, be subject to disposal by the United States, as provided in the sixth section of said act of Congress.’?

No immediate reply seems to have been made to the letter of Secretary Usher. But on June 22, -1865, Mr.' Wilson, Commissioner of the General .Land Office, addressed to Mr. Harlan, then Secretary of the Interior, a, communication in which he referred to the above letter of Secretary Usher, and in which he assigned many reasons, why thé Perham map was who.lly inadequate for the purposes intended to be accomplished by it, namely, the .withdrawal for the benefit of the Northern Pacific Railroad Company of all the public lands within the exterior lines indicated by that map. Among other things Mr. Wilson said in his communication: “ Of course, no.withdrawal can now be made on account of the road in the region of country extending across that part of the continent between the west boundary óf Minnesota to the eastern surveys of Washington Territory, because over that territory the lines of the public surveys have not yet been established. In this extended locality, the withdrawal should only be ordered as the public surveys are advanced and survey

After the map of the definite location of the Oregon Company had been filed and accepted, namely, on the 31st of May, 1870, Congress passed a joint resolution authorizing the Northern Pacific Kailroad Company to issue bonds to aid in the construction and equipment of its road, “and to secure the same by mortgage on its property and rights oil property of all kinds and descriptions, real, personal and mixed, including its franchise as a corporation ; . . . and also to locate and construct, under the provisions and with the privileges,-grants and duties provided for in its act of incorporation, its main

On, the 4th day of August, 1870, two maps, constituting a map of general route of the Northern Pacific Railroad Company, were presented to the Secretary of the Interior. The bill alleged that those maps designated a route following the

• There never was any withdrawal of indemnity lands on the proposed line between Wallula and Portland, nor any definite location or construction of, the road of the Northern Pacific Railroad Company' opposite to the lands in suit.

Proceeding to the consideration of the case upon its merits, we observe that many questions of difficulty and importance have been discussed by learned counsel both, at the bar and in their printed arguments which we do not deem it necessary to determine. In our judgment, the 'case is within a very narrow compass.

What was the extent of the grant of public lands made to the Northern Pacific Railroad Company by the act of July 2, 1864? That grant did not embrace all the odd-numbered sections within the exterior lines of any general route that might have been adopted by the company, nor all within the forty miles in width that might have been surveyed under the order of the President (§ 6). on' each side of the entire line of the road after such general route had been designated. It was in the nature of a “ float,” no right or title to any particular section becoming certain until a definite location of route. Missouri, Kansas & Texas Railway v. Kansas Pac. Railway, 97 U. S. 491 ; Grinnell v. Railroad Co., 103 U. S. 739 , 742; Van Wyck v. Knevals, 106 U. S. 360 , 366; Kansas Pacific Railway v. Dunmeyer, 113 U. S. 629 , 634; Wisconsin Central Railroad v. Price County, 133 U. S. 496 ; Deseret

In Buttz v. Northern Pacific Railroad, 119 U. S. 55 , 71, 72, this court, speaking by Mr. Justice Field, referred to the act of 1864 and said that it contemplated “ the filing by the company, in the office of the Commissioner of the General Land Office, of a map showing the definite location of the line of its road, and limits the grant to such alternate odd sections as have pot, at that time, been reserved, sold, granted or otherwise appropriated, and free from preemption,-, grant or other- claims or-rights. .' . . Nor is there anything inconsistent 'With..this .view of the sixth section as to the general route,- in the clause in the third section making the grant operative. only upon such odd sections as have not been reserved, .sold, granted or otherwise appropriated, arid to which preemption arid .other rights and claims have not attached, when a map of the definite location has been filed?''

In United States v. Northern Pacific Railroad Company, 152 U. S. 284 , 296, it was held that “the act of 1864 granted-to the .Northern Pacific Railroad Company only public lands to which the United States had full title, not reserved, sold, granted or otherwise appropriated, and free from preemption or other claims or rights at the time its line of road was definitely fixed, and a plat thereof filed in the office of the Commissioner of the General Land Office.” Subsequently in Northern Pacific Railroad v. Sanders, 166 U. S. 620 , 629, it was' said that “ the. act of July 2, 1864, under which the railroad company claims title excluded from the grant made by it all lands that were not, at the time the Vine of the road was definitely fitted, ■ free from preemption or other claims or rights.”

If therefore the Perham map of 1865 were conceded for the purposes" of the present discussion to have been sufficient as a map of “ general route ” — and nothing more can possibly be claimed for it — these lands could not be regarded as hav

There are some general expressions in Buttz y. Northern Pacific Railroad, above cited, which, counsel insists,' indicate a different view. In that case Mr. Justice Field said that when the general route of the Northern Pacific Railroad was fixed and information thereof given to the Land Department by filing the map of such route, “ the law withdraws from sale or preemption the odd sections to the extent of forty miles on each side. • The object of the law in this .particular is plain : it is to preserve the land for the company to which, in aid of the construction of the road, it is granted.” This language was too broad if it is construed to express the thought that public lands, when within the exterior lines of a “ general route,” are “ appropriated ” from the time the map of such route is filed, so as to prevent them from being granted by Congress to and from being earned by another railroad corporation prior to the filing of a map of definite location by the company designating such general 'route. In Northern Pacific Railroad v. Sanders, 166 U.-S. 620 , 634, 635, 636, this court, referring to the act of July 2, 1864, said: “ The company acquired, by fixing its general route, only an inchoate right to the odd-numbered sections granted by Congress, and no right attached, to any specific section until the road was definitely located and the map thereof filed and accepted. Until such definite location it was competent for Congress to dispose of the public lands on the general route of the road as it saw proper. Provision for indemnification of the company in such an emergency was made by a clause in the act of 1864, providing that wherever, prior to the date of definite location-, ‘ any of said sections or parts of sections shail have been granted, sold, reserved, occupied by homestead settlers, or preempted or otherwise disposed of, other lands shall

Upon the question whether it was within the power of Congress to have granted to the Oregon Company in 1866 lands embraced within the exterior lines of the general route as defined by the Perham map of 1865, reference heed only be made to United States v. Union Pacific Railway, 160 U. S. 1 , 33, and Menotti v. Dillon, 167 U. S. 703 , 719-720.

In Menotti v. Dillon, the principal question was as to the rights acquired by a railroad company in virtue of its having filed it's map of general route and the withdrawal by executive order of certain lands within the exterior lines of that route' from preemption, private entry and sale — all before the passage of á subsequent act under which one of the parties claimed title to the land in dispute, the other claiming under the railroad company. This court said: “ It is said that the railroad company filed its'map of general route on the 8th of December, 1864, and that these lands having been withdrawn from preemption, private entry and sale by the executive order of January 30, 1865, they were not embraced by the act of 1866. In our opinion this is not a proper interpretation of that act. The proviso of the first, section, distinctly indicates

Again in the same case : “ It is true, as said in many cases, that the object of an executive order withdrawing from preemption, private entry and sale lands within the general route of a railroad is to preserve the lands unincumbered until' the completion and acceptance of the road. But where the grant was, as here, of odd-numbered sections, within certain exterior lines, 'not sold, reserved or otherwise disposed of by the United States, and to which a preemption or homestead claim may not have attached, at the time the line of said road is definitely fixed,’ the filing of a map of general route and the issuing of a withdrawal order did not prevent the United States, by legislation at any time prior to the definite location of the road, from selling, reserving or otherwise disposing of any of the lands which, but for such legislation, would have become, in virtue of such definite location, the property of the railroad company. Especially must this be true where the grant is made subject to the reserved power of Congress to add to, alter, amend or repeal the act containing such grant. The act of 1866 did not take from the railroad company any lands to which it had then acquired an a-bsolute right. The right it acquired in virtue of the act making the grant and of the accepted map of its general route wras to earn such of the lands within the exterior lines of that route as were not sold, reserved or disposed of, or to which no preemption or homestead claim had attached, at the time of the definite location of its road. The act did not violate any contract between the United States and the railroad company, for the reason that the contract itself recognized the right of Congress, at any time before the line of road was definitely located, to dispose of odd-numbered sections granted. It was one that disposed of the lands in question before the definite -location of the road. It dedicated these and like lands, part óf the public domain, to the specific purposes stated in its provisions, and to

As the grant contained in the act of July 2, 1864, did not include any lands that had been reserved, sold, granted or otherwise appropriated at the time the line of the Northern Pacific Bailroad was “definitely fixed;” as the route of the Northern Pacific Bailroad had not been definitely fixed at the time the act of July 25, -1866, was passed, or when the line of the Oregon Company was definitely located; as the lands in dispute are within the limits of the grant contained in the act of 1866; as the route of the Oregon Bailroad was definitely fixed, at least when the map showing that route was accepted by the Secretary of the Interior on the 29th day of January, 1870 — the Northern Pacific Bailroad Company having done nothing prior to the latter date except to file the Perham map of 1865; and as prior to the forfeiture act of September 29, 1890, .there had not been any delinite location of the Northern Pacific Bailroad opposite the lands in dispute, there is no escape from the conclusion that'these lands were lawfully earned by the Oregon Company and were rightly patented to it. Of course, if the route of the Northern Pacific road had been definitely located before the act of 1890 was passed, and had embraced the lands in dispute, different questions would have been presented..

In opposition to the views, we have expressed it may be said that the clause in the act of July 25, 1866, providing for the selection under the direction of the Secretary of the Interior of lands for the Oregon Company in lieu of any that should “ be found to have been granted, sold, reserved, occupied by

Touching, the joint resolution of May 31, .1870, it is clear that whatever may be its scope, no previously vested right of the .Oregon Company was affected or was intended to be. affected by that resolution. On the contrary, the .iesolution on its face indicates that some of the lands which the Northern Pacific Eailroad Company may have been entitled to earn had been or might have been granted or otherwise disposed .of “ subsequent to the passage of the-act of July 2, 1864,” and-.in lieu thereof that company was authorized .under the direction

Passing by as unnecessary to be determined other questions discussed by counsel, we adjudge that the Circuit Court erred in cancelling the patents referred to in the bill, and that the ■ reversal by the Circuit Court of Appeals of the decree of the Circuit Court and the remanding of the cause with directions to dismiss the bill was right.

The decree of the Circuit Court of Appeals is

Affirmed.

Me. Justice McKenna did not participate in the decision of this case.