Oregon & California Railroad v. United States

delivered the opinion of the court.

By the act of Congress of March 3, 1887, c. 376, it was pro

In United States v. Missouri &c. Railway, 141 U. S. 360 , 380, 382—which was an action brought by the United States after the passage of the above statute to have certain patents for land cancelled—this court, after observing that as to some of the lands the United States appeared to have a direct interest in them, said : “ As to others, it is under an obligation to claimants under the homestead and preemption laws to undo the wrong alleged to have been done by its officers, in violation of law, by removing the cloud cast upon its title, by the patents in question, and thereby enable it to properly administer these lands, and to give clear title to those whose rights, under those laws, may be superior to those of the railway company. A suit, therefore, to obtain a decree annulling the patents in question, so far as it is proper to do so, was required by the duty the Government owed as well to the public as to the individuals who acquired rights, which the patents, if allowed to stand, may defeat or embarrass.” Reference was made in that case to United States v. San Jacinto Tin Co., 125 U. S. 273 , 286, in which it was held that the United States could sue to set aside a patent improperly issued, where it appeared that there was an obligation on the part of the United States to the public, or to any individual, or where it had any interest of its own ; also, to United States v. Beebe, 127 U. S. 338 , 342, in which’ it was

In this state of the law, the present suit was brought by the United States against the Oregon and California Railroad Company in order to obtain a decree cancelling certain patents for lands, which, it was alleged, had been illegally and by mistake issued in the name of .the United States to that company, which succeeded to the rights of the Oregon Central Railroad Company.

The case was heard upon a stipulation as to evidence, from which the following facts appear:

By the act of Congress of July 25, 1866, c. 242, 14 Stat. 239 ,. the California and Oregon Railroad Company, and such company organized under the laws of Oregon as the Legislature of the latter State designated, were authorized to locate, construct and maintain a railroad and telegraph line between Portland, Oregon, and the Central Pacific Railroad Company in California.

For the purpose of aiding in the construction of that line, Congress granted to those companies, their successors and assigns, every alternate odd-numbered section of public lands, not mineral, to the amount of twenty sections per mile, (ten on each side,) of the railroad line. But the act provided that when any of the alternate sections or parts of sections should be found “ to have been granted, sold, reserved, occupied by homestead settlers, preempted, or otherwise disposed of, other lands, designated as aforesaid, shall be selected by said companies in lied thereof, under the direction of the Secretary of the Interior, in alternate sections designated by odd numbers as aforesaid, near

The Oregon Central Railroad Company was designated by the Oregon' Legislature as the company organized. under the laws of Oregon, entitled to receive the granted lands in Oregon, and the benefits and privileges of the above act of 1866.

Prior to October, 1869, that company definitely fixed on the ground and surveyed the first section of the railroad in Oregon. That section extended from Portland to Jefferson, and comprised not less than sixty continuous miles from the northern terminus of the road ; and on October 25, 1869, the company filed in the office of the Secretary of the Interior, and on January 29, 1870, the Secretary duly accepted and approved, a map of the survey and definite location of that section.

During the year 1869 and the months of January and February, 1870, the company definitely fixed on the ground and surveyed the s.econd section of its road, which section comprised not less than 124 continuous miles from Jefferson ;• and on March 26, 1870,- filed in the office of the Secretary, and on March 29,1870, that, officer accepted and approved, a map of the survey and definite -location of that section.

On the 7th of April, 1870, the Commissioner,of the General Land Office, under the direction of the Secretary of the Interior, withdrew all the odd-numbered sections of land lying within thirty miles on each side of the railroad (as shown on the map of survey and definite location filed with the Secretary on Marph 26, 1870.,)- from sale or location, preemption or home

During the years 1868 and 1869, and prior to December the 25th, 1869, the Oregon Central Railroad Company constructed and fully equipped the first twenty miles-of the railroad contemplated by the act of 1866, commencing at Portland and extending alpng the line shown upon the map filed in the office of the Secretary of the Interior on.October the 29th, 1869. And in the years 1869 and 1870, and prior to September the 1st, 1870, the above two companies fully equipped the second twenty miles of the railroad, commencing at the end of the first constructed twenty miles and extending along the line shown on the map to a point distant forty miles from the commencement of the railroad at Portland — a portion of the second twenty miles having been constructed by the Oregon Central Rail road Company, the remainder by the defendant.

The whole line of railroad contemplated by the act of 1866, commencing at the end of the second constructed twenty miles, was constructed by the defendant company during the years 1870, 1871 and 1872 ; and prior to December the 4th, 1872, the entire line from Portland to Roseburg was continuously operated for all the purposes contemplated by Congress.

Commissioners were appointed by the President to examine the railroad as constructed from Portland, to Roseburg. That duty was performed, and they reported to the President, under oath, that the railroad between those points had been completed and equipped in all respects as required, and was ready for the service contemplated by the act of 1^66. Those reports were

The remaining part of the road in Oregon, extending from Roseburg to the southern boundary of that State, was constructed, fully equipped and made ready by the defendant company during the years 1878 to 1889, inclusive, and all prior to the year 1900. It was duly examined by commissioners who reported thereon, and their reports were accepted and approved.

All the lands described in the bill of complaint are distant more than twenty miles from but lie within thirty miles on one side of the road extending from Jefferson to Roseburg, shown on the map filed March 26,1870; and they were all included and embraced by the withdraAval made by the Secretary on the 7th of April, 1870.

No part or portion of the lands described in the bill of complaint are mineral lands, nor are they included by any exception or reservation from the indemnity land grant in Oregon, made by the act of 1866, except so far as, if at all, they were excepted, or reserved therefrom by reason of the settlements and facts hereinafter to be referred to.

On August 16,1892, all the lands described in the bill Avere frée and clear for selection by the defendant company as part and parcel of the indemnity lands granted by the act of Congress, except so far as, if at all, they were excepted or reserved by those settlements and facts.

>1 On the 16th of August, 1892, and the 19th of October, 1892, the defendant company filed Avith the register and receiver of ihe United States Land Office at Roseburg its several lists selecting the lands in question as indemnity lands in lieu of lands of'equal area, parts of odd-numbered sections within the primary limits ofi the grant made in 1866 and otherAvise disposed of by the United States prior to the passage of that . act. Those lists were accompanied by the fees, costs and charges required by laAV, and :in all respects conformed to the directions, rules, regulations and ’requirements of the Secretary of the Interior and of the Com

In the following years the following persons, each being a duly qualified entryman under the homestead laws of the United States, settled upon the lands respectively claimed for them in this suit, to wit: 1869, Louis [Charles] Heller; 1878, J. R. Peters ; 1878, John Sapp; 1882, George C. Peck; 1883, Uriah W. Wren; 1885, Baxter W. Jenkins; 1885, Charles E. Barton; 1888, Joseph A. Cox; 1889, Charles W. Seeley; 1889, John W. Carey; 1890, F. W. Huddleston; 1890, Alfred R. Young; 1890, Abraham M. Peck. Each person made his settlement with the intention of making a homestead entry of the lands, whenever that could be done under the acts of Congress. After the date of settlement each settler continuously resided and made improvements upon his land in the way of a dwelling house, barn, outhouses, fencing, clearing and planting of trees. And on October 27, 1892, within ninety days after the official plat of the survey of the lands was filed in the United States Land Office at Roseburg, each settler, in good faith, filed a formal application in the land office for a homestead entry of and for the lands upon which he settled and improved and upon which he continuously resided after the date of his first occupancy.

On the 20th of February, 1893, the Commissioner of the Land Office and the Secretary of the Interior having approved the selections made by the railroad company, a patent was issued conveying to it all the lands in dispute. But when the company’s lists were approved neither the Commissioner nor the Secretary had any knowledge of the adverse claims of the above settlers to the lands upon which they respectively resided, and which the United States now claims for them.

On the 27th day of October, 1893, the land grant made by the act of 1866 being still unadjusted, the Commissioner of the Land Office demanded of the railroad company a reconveyance of the lands covered by the patent cf 1893 upon the ground

■ ' The Circuit Court, upon final hearing, found the equities of the case to be with the United States, and a decree was entered cancelling the patent issued to the Oregon and California Railroad Company. That decree was affirmed by the Circuit Court of Appeals, 109 Fed. Rep. 514 .

1. Some of the questions referred to in argument as bearing upon the issues presented by the record have been determined by decisions of this court rendered since this litigation commenced.

In Hewitt v. Schultz, 180 U. S. 139 , which related to the gran t of lands made to the Northern Pacific Railroad Company, by the act of July 2, 1864, c. 217, 13 Stat. 365 , this court accepted the construction of that act as adopted and adhered to by the Land Department, and held .that the Secretary of the Interior had no power, simply upon the definite location of the Northern Pacific Railroad, tó withdraw from the operation of the preemption and homestead laws lands within th% indemnity limits of the road as defined by Congress. Northern Pacific Railroad Co. v. Miller, 7 L. D. 100, 125 ; Northern Pacific Railroad Co. v. Paris, 19 L. D. 87, 90. In the present case, the line of the railroad, opposite to which are the lands here in dispute, was definitely located in 1870, while (with the exception of one tract, about which the railroad company makes no question) the lands in dispute were not settled upon until after that year. . We have seen that upon acceptance of the map of definite location the Secretary of the Interior, according to the stipulated facts, made an order (which was duly received at the local land office) withdrawing all the odd-numbered' sections within thirty miles on each side of the road shown on the map of survey and definite location, from sale or location, preemption or homestead entry. That withdrawal included- the odd-numbered sections in the indemnity limits, within which the lands in dispute' were situated. We hold on the authority of Hewitt v. Schultz that it was beyond the power of the Secretary to make such an order in respect of lands within the indemnity

In Nelson v. Northern Pacific Railway, 188 U. S. 108 , decided at the present term of the court, it was held that the act of 1864 making a land grant to the Northern Pacific Railroad Company, and the act of May 14, 1880, c. 89, for the relief of settlers on the public lands, recognized the right at any time prior to definite location to settle upon the unsurveyed public lands embraced by the grant of 1864, notwithstanding there was, at the time, in existence an order of withdrawal, based only upon a map of general route not issued pursuant to any express direction of Congress; provided such settlement was accompanied by residence on the land, in good faith, with the intention on the part of the settler to avail himself of the benefits of the homestead law as soon as the lands were surveyed. This decision rested mainly on the ground that Congress intended by the act of 1S64 to protect the right of bona fide settlers acquired before the railroad company had, by an accepted map of definite location, obtained a vested interest in particular odd-numbered sections granted.

2. We have seen, from the stipulated facts, that it was not until 1892 that the railroad company made its selection of lands within the indemnity limits to supply deficiencies in its place or granted limits. But this occurred after each one of the entrymen, whose rights the Government is now seeking to protect, had made his settlement with the intention to follow it up by a bona fide entry under the homestead laws. In other words, the lands were “ occupied by homestead settlers ” (to use the words of the granting act of 1866) at the time they were selected by the railroad company. Now, it has long been settled that while a railroad company, after its definite location, acquires an interest in the odd-numbered sections within its place or granted limits — which interest relates back to the date of the granting act — the rule is otherwise as to lands within indemnity limits. As to lands of the latter class, the company acquires no interest in any specific sections until a-selection is made with the approval of the Land Department; and then its right relates to the date of the selection. And nothing stands in the way of a disposition of indemnity lands, prior to selection, as Congress may choose to make. In Ryan v. Railroad Company, 99 U. S. 382 , which was a contest as to lands within the indemnity limits, this court said: “ It was within the secondary or indemnity territory where that deficiency was to be supplied. The railroad company had not and could not have any claim to it until specially selected, as it was, for that purpose.” And the reason given was that “ when the road was located and the maps were made, the right of the company to the odd sections first named became ipso facto fixed and absolute. With respect to the ‘ lieu lands,’ as they are called, the right was only a float, and attached to no specific tracts until the selection was actually made in the manner prescribed.” In St. Paul Railroad v. Winona Railroad, 112

3. But it is contended that as the selection by the company (except as to the tract which was occupied in 1869, before any

4. It is also said that all the lands within the indemnity limits were required to supply the deficit in place limits arising from the disposition prior to definite location by sale and otherwise of lands within the granted limits. But the extent to which lieu lands could be required to supply such deficit in place lands could not be properly or legally determined until there was an adjustment of the grant of lands in respect of place limits. In any event, no such adjustment having taken place prior to the date of the settler’s bona fide occupancy, his rights, based upon such occupancy, would not be affected by the fact, subsequently appearing, in whatever way, that all the odd-numbered sections within the indemnity limits were needed to supply deficiencies in place limits. At the time the settler went upon the land, in good faith, to make it his home and to perfect his title under the homestead laws, there was nothing of record that stood in the way of his right to occupy the lands and to remain thereon until he could perfect his title by formal entry under the homestead laws.

Other points were made in the argument of the case, but they need not be specially noticed, as what we have said re

The decree is

Affirmed.

Mr. Justice Brewer took no part in the disposition of this case.