Missouri Valley Land Co. v. Wiese

delivered the opinion of the court.

Within the grants of land made to the Union Pacific Railroad Company and the Sioux City and Pácifie Railroad Company by the act of Congress óf July .l, 1862, c. 120, 12 Stat. 489 , ánd the amendatory act of July 2, 1864, c. 216, 13 Stat. 356 , some of the land within place limits overlapped. This controversy concerns the title to a forty-acre tract within an overlap.

We state the salient facts established by the pleadings, and

The land involved is the northeast l of the northéast i of section 21, township 17, range 11 east, Washington County, "Nebraska. ■ At the time of the passage of the granting acts referred to the records of the General Land Office showed a school indemnity selection of the tract now in controversy, made on July 1/ 1858. The railroads named, each having complied with all the conditions of the acts of Congress, had become fully entitled to the granted lands prior to January 1, 1870. A joint patent was issued in 1873 to the two roads named for a large quantity of the lands within the common territory. This action of the Land Department was upheld by the Circuit Court for the District of Nebraska in 1876, and ■ the two railroad companies were adjudged to be tenants in common of such lands. Sioux City & P. R. R. Co. v. Union Pacific Railroad Company, 4 Dill. 307 ; S. C., Fed. Cas. No. 12,909. As remarked in a footnote to a report of the,case, “This decree was acquiesced in by the parties, who, subsequently effected an amicable partition of the land.” Apparently, however, in consequence of .the school indemnity selection referred to, the forty-acre tract now in controversy was not included’ in such patents. .On July 3, 1880, the school indemnity selection was cancelled by the General Land Office because not authorized by statúte. See 17 L.'D. 43. This cancellation, so far as the record discloses, left the tract free from claims antagonistic to the rights of the railroad companies under the grants of 1862 and 1864. . On June 12, 1881, the Union Pacific Railroad Company “ listed the land in question, per list No. 4, but the Sioux City and Pacific Railroad Company never listed the same.” On December 1, 1882, the Union Pacific Railroad-Company sold, and in 1887> after completion of the payment for the same, conveyed .the land to John Japp by a warranty deed, purporting to transfer thé entire title, and this deed was soon afterwards recorded'. Japp went,.into and remained- . in open, continuous and adverse possession of the land, farm

Upon the ground that the school indemnity selection referred to, although invalid, was uncancelled when the railroad grants of 1862 and 1864 were made, and that such invalid selection operated to except the tract in question from said grants, the General Land Office on May 19, 1892, cancelled the listing of the tract which had been made by the Union Pacific Railroad Company and rejected a claim “as to. this land ” made by the Sioux City and Pacific Railroad Company. When such eláim was made and its precise character, is not shown by the record.

By §5 of the act of March 3, 1887, c. 377, 24 Stat, 556, providing for the adjustment of land grants made by Congress to aid. in the construction of railroads and for the forfeiture of unearned‘lands, etc., it was made lawful for a bona fide purchaser of lands forming part of a railroad land grant, but which for a,ny reason had been excepted from the operation of the grant, to make payment to the United States for said lands and obtain patents therefor. Because of the ruling made by the General Land Office, to the'effect that the Union Pacific Railroad Company was without title to the land which it had conveyed to Japp, as before stated, Asmus Wiese, on August 10, 1893, began proceedings under the fifth section of the act of 1887 to obtain a. patent to the land from the United States, made the required publication and proof, and on September 25, 1893, paid to the register of the proper local land office the sum of $50, the price of the land. A certificate Was delivered to Wiese, reciting that he was entitled, on presentation thereof, to receive a patent. On October 17,1894, 'presumably'while an application of Wiese for patent was pending before the Commissioner, the Sioux City and Pacific Railroad Company -filed, a protest against the issue of the patent, on the ground that the land affected lay within the

Prior, however, to the issue of the patent last referred-to, and on November 12, 1902, Wiese commenced in the District Court of Washington County, Nebraska, this action to quiet his title to the tract, making defendants to the petition the Union Pacific Railway Company, the Sioux City and Pacific Railroad Company, and the Missouri Valley Land Company. On February 7,1903, the Union Pacific Railway Company filed a disclaimer of “any and all interest of every kind or nature in and to the subject matter of this action.” The issues, however, upon which the ease was tried were made by a. second amended petition, filed on February 20, Í904, and an answer and' cross-petition thereto and a reply to the cross-petition. The only defendants named'in this second amended petition were the Missouri Valley Land Company and the Iowa Railroad'Land Company.- Averments were made in the petition as to the making of the overlapping grants by Congress, the Completion of the two railroads prior to January 1, 1870, the sale to Japp in 1882 and by Japp to the plaintiff, the adverse possession of the land by the plaintiff and his grantor, commencing in 1882, absolute ownership of the land by the plaintiff, the issue in 1903 of the joint patent for the land .to the successors in interest of the original beneficiaries of the grants made by the acts of 1862 and 1864, and the assertion of conflicting claims to the land by the defendants as successors in interest to the Sioux City and Pacific Railroad ’Company. The prayer was that the title of plaintiff might be quieted, etc.

We excerpt from the brief of counsel for plaintiffs in error á synopsis of the contents of the claims madb by its answer and cross-petition: .

“Plaintiff in error set up and claimed .by its answer and cross-bill that the title to its interest remained in the United States until the issuance of the patent in 1903; in other words, that the grant for the Sioux City branch was not a grant of

The plaintiff by his reply in substance alleged that the grants were in prcesenti, and that the effect of the completion of the. railroads and compliance with all the terms and conditions of the act prior to January 1, 1870, operated to pass the title of the Government on or prior to that date, and ...that the General Land Office had not thereafter jurisdiction in respect to such lands, and that the adverse possession of. the plaintiff was not affected by the proceedings had the Land Department concerning such land.

The cause was submitted to the court on the pleadings and evidence, and a decree was entered adjudging that- Wiese- had a perfect title to the-tract. Thé Supreme Court of Nebraska affirmed the decree ( 108 N. W. Rep. 175 ), holding, in substance, -that the grant to the two companies of the tract in controversy was in prcBsenti, that the title of the companies attached upon the definite location of their lines of road, and that the adverse possession of Wiese and his grantor, commencing in 1882,. had completely barred any claims of the

A motion has been filed to dismiss the writ pf error because it “was not allowed by the Chief Justice of the Supreme Court of Nebraska, and it does not- appear in the record by what authority the judge who allowed the writ styles himself ‘Presiding Judge pf the Supreme Court of.Nebraska,’ and because there is no. Federal question involved in said cause.”

Looking at- the' record we find that originally the writ of error was signed by “ Charles B. Letton, Justice of the Supreme Court of the State of Nebraska,” and that subsequently an additional signature was added, viz., “John B. Barnes, Presiding Judge of Supreme Court of Nebraska in absence of Sedgwick, C. J., from this State.” Obviously, in procuring the signature Of Justice Letton, counsel overlooked the fact that by § 999, Rev. Stát., it was necessary that the writ of error should be allowed by the Chief Justice of the court. The recital made by Justice Barnes following his signature is, however, prim a facie evidence of the correctness of the statements therein contained, viz., the absence of the Chief Justice from the State and the fact that Justice Barnes was in his absence the Presiding'Judge of the Supreme Court of Nebraska, and counsel have not assailed the accuracy of the representations. We are of opinion that the statute was complied with. Havnor v. New York, 170 U. S. 408 , 411.

The contention of the absence of a Federal question is also without merit. In effect, the plaintiffs in error pleaded their right and title to a moiety of the tract in controversy under the joint patent of July. 24, 1903, and urged in support thereof the claim that the legal title had not before the date named passed out of the United States, that the land was within the jurisdiction of the General Land Office, and that -up to a short time befóre'the execution of the joint deed the department had assumed and exercised jurisdiction over controversies respecting the land. Such a contention cannot be said to be ■frivolous, and as the state court necessarily decided against-

That the decision of the court below was right, as applied to the land within the place limits of the main line grant made to the Union Pacific Railroad Company by the act of 1862' and the amendatory act of 1864, is not an open question. This is so, since it has béen expressly held that the main line grant was one in''prcesenti, that the grantee company had a right to bring ejectment for such land after the definite location of its road, and that consequently from the time of such definite location a possession might be acquired by a third party to land embraced within the grant, which would be adyerse, even as to the railroad company, and bar its title if possession was continued for the statutory length of time. Deseret Salt Co. v. Tarpey, 142 U. S. 241 ; Toltec Ranch Co. v. Cook, 191 U. S. 532 ; Iowa Railroad Land Co. v. Blumer, 206 U. S. 482 . In the last-mentioned cáse, summing up the doctrine, it was said:

“But when the grant is in prcesenti,, and nothing remains to be done for the administration of the grant in the Land Department, and the conditions of the grant have been complied with and the grant fully earned, as in this case, notwithstanding the want of final certification and the issue of the patent, the railroad company had such title as would enable it to maintain ejectment against one wrongfully on the lands, and title by prescription would run against it in. favor of one in adverse possession under color of title. Salt Co. v. Tarpey, and Toltec Ranch Co. v. Cook, supra.”

■ The conclusive effect of these rulings, if applicable, is not denied, but it is insisted that they are not pertinent, because. the land in question was not a part of the main line grant, but was embraced within a grant for the construction of a branch road, which is so different from the grant for the construction of the main line, that the branch line grant cannot be held to have been a grant in prcesenti within the principle of the previous cases. We proceed .to consider this contention.

“Sec. 17. And be it further enacted, That so much of section fourteen of said act as relates to a branch from Sioux City be, and the same is hereby, amended so as to read as follows: That whenever a line of railroad shall be completed through the States of Iowa, or Minnesota, to Sioux City, such company, now organized or may hereafter be organized under the laws of Iowa, Minnesota,. Dakota, or Nebraska, as the President of the United States, by its request, may designate or approve for that purpose, shall cor struct and operate a line of railroad and telegraph from Sioux City, upon the most direct and practicable route, to such a point on, and so as to connect with, the Iowa branch of the Union Pacific Railroad from Omaha, or the Union Pacific Railroad, as such company may select, and on the same terms and conditions as are provided in this act and the act to which this is an amendment, for the construction of the said Union and Pacific Railroad and telegraph line and branches; and said company shall complete the same at the rate of fifty miles per year; Provided, That said Union Pacific Railroád Company shall.be, and is-hereby, released from the construction of said branch. And said-'com

It will be observed that there was employed in the act of 1864 similar language to that used in the act of 1862 in regard to the consideration moving from the United States for the construction of the branch in question, viz., that the work should be done “ on the same terms and conditions as are provided in this act, and the act to which this is an amendment, for the construction nf the said Union Pacific Railroad and Telegraph line and branches.” That consideration, among other things, was a grant of lands and also an issue of bonds by the United States. As, we must refer to the terms of the main grant to the Union Pacific Railroad Company to determine the nature of like grants of land made in the acts of 1862 and 1864 to aid in the construction of the branch lines, we see nó escape from the conclusion that the construction given to the grant of lands within place limits made in aid of the main line must be adopted as to the grants of place lands made in aid of branch roads, and as we have seen the settled construe

Stress is also laid upon the fact that by § 17 of the act of 1864 it was provided that “said company shall be entitled to receive alternate sections of land for ten miles in width on each side of the same along the whole length of said branch,” and, in effect, we are asked to treat this as the granting clause of the act. But it is clear that the clause deals only with the quantity of lands to be granted, and that reference must be made elsewhere to ascertain the'precise character of the grant. Further, it is urged that the provision of § 17 concerning forfeiture for failure to complete the branch as required, embraces “all of the railroad which shall have been constructed by said company,” but did not include the granted lands as in the case of the main line’and other branches under § 17 of the act of July 1, 1862. From this it is argued that it was not the intention of Congress that the lands should pass under the grant for the Sioux City branch except as they were earned and duly patented. . But whether or not the forfeiture was of the limited character referred to, we think the clause cannot be allowed to impair the force and effect of the operative words of present transfer made in the statutory grant of lands contained in § 3 of the act of 1862, as amended, in reliance upon which, as one of the terms and conditions of the contract with

It results from the foregoing that the grant of the tract of land in controversy made by the act of 1862, and the amendatory act of 1864, to the- Union Pacific Railroad Company and the Sioux City and Pacific Railroad Company being a grant in prcesenti, and third parties on the definite location, of the road not having acquired rights- in the. land, the legal title attached in favor of the two companies on the filing of their maps of- definite location as of the date of the grant. Such title attached long prior to the purchase of the land by Japp. When the sale was. made to him no contest,was pending in respect to the land, and the statutory period of ten years, necessary in Nebraska to sustain a.claim of title by adverse’possession, ended prior. to the various proceedings had in’ the General Land Office, to which we have heretofore referred, growing out of the invalid school selection and the conflicting adjudications of the office in respect to it.

That the entry and holding of the land by Japp, the grantor óf Wiese, under the purchase by-Japp in 1882, and the continued possession by Wiese after he acquired the land from Japp, should be deemed to have been adverse to the title and possession of the Sioux City .Company, if the possession by Japp was not that of a co-tenant, and such possession was unaffected by. the proceedings had in the land office subsequent to 1882, is not-questioned. We are clearly of' opinion that the possession of Japp and his grantee was adverse in the - strictest sense of the term, and the acts of Wiese in seeking to acquire title from the United States under the act of 1887, with the view of removing a cloud upon his title, was not an act of recognition or acknowledgment of a superior title, either in the United States or in the Sioux City Company, operating to interrupt the continuity of his adverse possession, and in any event cannot beheld to have destroyed a title which had already become perfect by the. expiration of the statutory period in Nebraska for acquiring the legal title to land by ádverse possession.

Affirmed.