Oregon & California Railroad v. United States

after making the foregoing statement, delivered the opinion of the court.

This case is . similar to two recent cases bearing the same title, in the first one of which, 189 U. S. 103 , a patent of certain lands within the indemnity limits of the same road, dated February 20, 1893, was cancelled in favor of certain entrymen under the homestead laws of the United States, who had settled upon these lands at sundry dates from 1869 to

The second case was like unto the first, except that there had been a long delay by the land department in having the land surveyed. It was held that the land department had acted “with all convenient speed” within.the meaning of the act of 1870, 16 Stat. 94 , sec. 2, making the land grant. 189 U. S. 116 .

In both of these cases, however, the lands were in actual occupation of settlers under the homestead laws at the time selection was made by the railroad company and the patents issued.

In this case the settlement was made under the Oregon Donation Act, 9 Stat. 496 , the fourth section of which enacts that “ there shall be, and hereby is, granted to. every white

That a railway grant does not attach to lands which at the time of the definite location of the line have been sold, preempted, reserved'or otherwise disposed of by the United States for any purpose, has been so often decided by this court as to. be no longer open to question. Leavenworth &c. R. R. Co. v. United States, 92 U. S. 733 ; Newhall v. Sanger, 92 U. S. 761 ; Doolan v. Carr, 125 U. S. 618 ; United States v. McLaughlin, 121 U. S. 428 ; Cameron v. United States, 148 U. S. 301 ; Carr v. Quigley, 149 U. S. 652 . These cases, however, merely apply the language of the statutes to variant circumstances. Neither of them turns upon the effect of a claim which has been can-celled or abandoned before, or after the attachment of the railroad grant, éithér by the definite location of the line or by

That question was first considered in Kansas Pacific R. R. Co. v. Dunmeyer, 113 U. S. 629 , 639, which involved the title to part of an odd-numbered section within the place limits of the Union Pacific Eailroad Company’s grants of 1862, 1864 and 1866. The facts were that one Miller made a- homestead entry upon this section July 20, 1856, which was valid if the land was then public land. The line of definite location was filed September 21, 1866, so that the entry of Miller brought the iand within the exception in the grant as land to which the homestead claim attached at the time the line of the road was definitely fixed. It was argued by the company that, although the homestead entry had attached to the land, and Miller had entered upon it within the time prescribed by law, erected a house upon it, and brought his family to live upon it, and made the tract his home until the spring of 1870, yet that he after-wards abandoned his homestead claim, bought the land from the railroad company, and paid for it, and sold the land to Dunmeyer, who .had obtained a conveyance from the company. From this it was argued that the exception no longer operated and the land had reverted to the company. But it was held that, as Miller’s claim was an. existing one of public record when the railroad map was filed, it; was excepted from the land grant, notwithstanding the subsequent abandonment. The case is readily distinguishable from the one under consideration in the fact .that Miller had not only entered upon the land, but was an actual possession of it at the time of the definite location of the road, and that he did not abandon his entry until nearly four years after the line of definite location was filed.

A case not dissimilar is that of Bardon v. Northern Pacific Railroad, 145 U. S. 535 . That case arose from a land grant to the Northern Pacific Company of July 2, 1864, 13 Stat. 365 , under which act the company proceeded to designate the general route of its road, and afterwards to have its line definitely fixed. The date when the line was definitely fixed is riot stated. in the report, and is not treated as material, but it appears that on September 12, 1855, one Robinson settled upon the land, filed

In the consideration of the present case we are not embarrassed by either of these adjudications, since in one case the lands were not only actually occupied by the homestead claimant at the time the railroad grant took effect, but in both cases the proof -of such occupation was of record in the proper office, and the lands were abandoned in one case, and the certificate cancelled in the other after that date, while in this case the land was abandoned fifteen years before the lands were selected by the company, and- nothing remained to indicate that the land was reserved, except the donation notification in the office of the surveyor general.

Two other cases are more directly in point. In Hastings &c. R. R. Co. v. Whitney, 132 U. S. 357 , the grant was made to the railroad July 4, 1866, and the line definitely located March 7, 1867. In May, 1865, one Turner applied, through his attorney, to enter the land in question as a homestead ’ The affidavit did not state that Turner’s family, or any member thereof, was residing on the land, or that there was any improvement thereon, and, as a matter of fact, no member of his family was residing, or ever did reside, on said land, and no improvement was made thereon by any one. Thé entry was allowed and stood upon the records of the land office uncancelled until September 30, 1872, when the entry was cancelled. The land was subsequently, in 1877, entered by Whitney as a homestead and a patent delivered. It was held that the homestead entry of Turner excepted it from the operation of the land grant, notwithstanding the entry was invalid on its face., '“So long as it

In Whitney v. Taylor, 158 U. S. 85 , one Jones, in May, 1854, settled upon a quarter section of public land in California, and as soon as the land was surveyed (in 1857) declared his intention to claim it as a preemption right, paid the fees required by law, and caused notice of the same to be filed in the proper government record. He occupied the tract until 1859, when he left for England and never returned. The land was found to be within the place limits of the grant to the Central Pacific Railroad Company, of 1862. This company filed its map of definite location in. 1864, and demanded the section in question. In 1885 the preemption entry of Jones was cancelled. It was held that the tract, being subject to the claim of Jones at the time -when the grant to the railroad company- took ef- ' feet, was excepted from' the operation of that grant, and that after the cancellation of that entry it became part of the public domain, and that such cancellation did-not enure to the benefit of the railroad company. -

The latest case upon the subject, however, is that of the Northern Pacific Railway v. De Lacey, 174 U. S. 622 . In that case the railroad company had filed its. map of definite, location March 26, 1884. On April 9, 1869, one John Flett filed a declaratory statement of his intention to purchase the land; under the preemption laws. In the fall of the same year, Flett left the land and did not thereafter reside on the same, although it appears timt, in September, 1870, he went to the local land office and told the officers that he had come to prove his claim. He was told that he had lost it, as it had become' railroafi land. He acquiesced in this statement. In 1887, eighteen years after his original entry, Flett submitted proof in support of his preemption, claim, founded upon his declaratory statement. -A hearing was had in the presence of all the parties, which finally resulted in a decision of the Secretary of the Interior, September 28, 1891, awarding the land in contro

It was contended that at' the time, March 26, 1884, when the map of definite location was filed, the declaratory statement of Flett, filed in the local land office in 1869, remained there as a record, and was an assertion of a preemption claim, and that under the ease of Whitney v. Taylor, above cited, the land described in that statement was excepted from the grant- to the railroad company. The question was presented whether the proceedings in the case of Flett were of such a character as to prevent the grant to the company from taking effect at the time of filing its map of definite location, March 26, 1884. It was held that, under the second section of the act of July 14, 1870, 16 Stat. 279 , claimants of preemption rights must make proper proof and payment of the lands claimed within eighteen months after the date prescribed for filing their declaratory notices shall hayé expired; that under the joint resolution of March 3, 1871, 16 Stat. 601 , twelve months in addition to that provided in the first act were given to the claimants to make proof and payment; that, adding the eighteen months given by the first act to the twelve months given by the. second act, all claimants of preemption rights were given thirty months to make the proper proof and payment for the lands claimed, and that “ whether such proof and payment were made would be matter of record, and if they were not so made the original claim was cancelled by operation of law, and required no cancellation on the records of the land office to carry the forfeiture into effect. The law forfeited the right and cancelled the entry just as effectually as if the fact were evidenced by an entry upon the record.” The case of Whitney v. Taylor was distinguished upon the ground that, in that case, “ there was no period within which a preemptor was compelled to prove up and pay for his claim, except that it should be done before the land was offered at public sale by the proclamation of the President.” It was held that, as the thirty months allowed

. Recurring now to the case under consideration, it appears that by: the sixth section of the Oregon Donation Act, 9 Stat. 498 , it was incumbent upon the settler to notify the surveyor genera], within three mónths from the commencement, of his settlement, of. the precise tract claimed by him; and by section seven, within .twelve months from the time the settlement commenced, must .prove to tbe.satisfaction of the surveyor general that the settlement and cultivation - required by the act had-been commenced, and that at any time after the expiration of four years from such settlement he. might prove the fact of continual residence and cultivation required by the fourth section,’ when upon such.proof being made, the surveyor general issues the proper certificate, forwards the same to the Commissioner of the' General Land Office, whose duty it is to issue patents for the land.

It is true that by the act of July 26,' 1894, 28 Stat. 123 , where proof of settlement had been made under the donation acts and notice-given as required by law, but there, had been a failure to execute and file in the land office .proof of continued-residence and cultivation of the land so settled upon, so as to entitle the donees to patents, such claimants, their heirs; de-visees, assigns and grantees,'were given the “right until January 1, 1896, “ to make and file'final proofs and fully establish their rights to donations ” under the aforesaid act of .Congress, and upon failure to do so they were to be held to have abandoned their claims.” But by section two .of the sáme act the Commissioner of the Land Office was given "the right, if such right, existed, “ to allow or direct •"hearings to be instituted to show that a donation claimant has abandoned the lands described in his notice, .or 'prevent the Commissioner, when it is proven that such a claim is invalid or abandoned, from caucel-

It is entirely clear that the position of the government in this case is not strengthened by anything.contained in this act, since it was intended only for the relief of those who had resided continuously upon and cultivated the lands specified in the original donation notification, but had through mistake or negligence omitted to make and file their final proofs and fully establish théir rights to such donations. Such donees were given until January 1,1896, to make such final proof and obtain their patents ; but they were not given thereby the right to perfect their claims to lands which' they had abandoned before completing a continued residence of four years thereon. This inference is rendered only.the more clear by the second section, which authorizes the Commissioner, when it is proved that such claim is invalid or abandoned, to cancel the same upon the official records, and by the third section, which expressly saves, adverse claims arising under any law other than the donation act.

It is clear that title to the land here in question never passed from the United States under the donation acts of 1850 and 1853, since the donation was only made to those “ who shall have resided upon and cultivated the same for four consecutive years, and shall otherwise conform to the provisions of this act.” Hall v. Russell, 101 U. S. 503 ; Maynard v. Hill, 125 U. S. 190 . As these conditions w,ere never complied with, the land continued to be the property of the United States, to which the railroad grant subsequently attached, unless such grant was' defeated by the fact that the donation notification still remained-of record in the office' of the surveyor general.' As the land had neither been “ granted, sold . . . occupied by homestead settlers, preempted, or otherwise disposed of,” the bill can only be sustained upon the ground that at the time land was selected it was “ reserved ” from sale; But for what pur

But even if the position • of the government be correct and

The decrees of the courts lelow are therefore reversed and the case remanded to the Circuit Court for the District of Oregon with directions to dismiss the hill.

Mr. Justice McKenna, having filed the bill in this case as Attorney General, did not participate in this decision.