Brandon v. Ard

delivered the opinion of the court.

This case involves the title to a tract of land in Allen County, Kansas, containing eighty acres. It is described in the record as the northeast quarter of section 11, township 26, range 20, and will hereafter be alluded to as the tract in section 11. Adjoining that tract, in the same township, is another tract of eighty acres which will be hereafter referred to as the tract in section' 2: ' The present writ of error does not involve the title to the tract - in section 2, but it will conduce to a clear understanding of the questions raised as to the tract in section if we recall certain acts of. Congress, as well as the proceedings in the Land Department and the litigation that arose in thé state and Federal courts about both tracts.

. By-an act of March 3, 1863, c. 98, 12 Stat. 772 , Congress granted to Kansas every alternate odd section of public lands, for ten sections in width on each side, to aid in the construction of railroads and branches, as follows: first, of a railroad and ■ telegraph line from Leavenworth, Kansas, on a named

After making the grant in the usual words, the act proceeded: "But in case it shall appear that the United States have, when the lines or routes of said road and branches are definitely fixed, sold any section or any part thereof, granted as aforesaid, or that the right of preemption or homestead settlement has attached to the same, or that the same has been reserved by the United States for any purpose whatever, then it shall be the duty of the Secretary of the Interior to cause to be selected, for the purposes aforesaid, from the public lands of the United States nearest to tiers of sections above specified, so much land, in alternate sections or parts of sections, designated by odd numbers, as shall be equal to such lands as the United States have sold, reserved, or otherwise appropriated, or to which the rights of preemption or homestead settlements have attached as aforesaid; which lands, thus indicated by odd numbers and selected by direction of the Secretary of the Interior as aforesaid, shall be held by the State of Kansas for the use anti purpose aforesaid: Provided, That the land to be so selected shall, in no case, be located further than twenty miles from the lines of said road and branches

By a statute passed February 9, 1864, c. 79, p. 149, Kansas, accepted this grant upon the conditions prescribed by Congress, and the Leavenworth and the Missouri-Kansas Companies became entitled to claim the benefit of its provisions as to the lands on their respective routes.

A few days after the act of 1863 was passed — indeed, before the State had formally accepted the benefit of its provisions — the Senators and Representatives from Kansas requested the General Land Office to withdraw the public lands

The order of withdrawal was approvéd by the Secretary of the Interior and ■'tfas received at the local office May 5, 1863.

■ After this withdrawal, Congress, by an act approved July 26, 1866, 14 Stat. 289 ,, c. 270, made a grant of lands to Kansas to aid in the construction of a southern branch of the Union Pacific Railway and Telegraph Company from Fort Riley, Kansas, down the valley of the Neosho River to the southern line of Kansas. This act is'referred to in the record, but it does not seem to have any- special significance in the present case. Suffice it to. say, .that it contained provisions substantially : like those ixi the act of 1863, which made it the duty of the Secretary df the Interior to select for the railroad company public lands,nearest the place limits, equal to such amount as the-United States appeared, at the time of the definite location of the road, to have “ sold, reserved or other

Under date of April 30, 1867 the Land Office transmitted to the local land office at Humboldt, Kansas, a map of the actual location of the railroad for which the grant was made by Congress in the act of 1863. The diagram showed the ten-mile or granted limits of that road, and directed the withholding from sale or location, preémption or homestead entries all the odd sections within the limits of twenty miles as laid down on that diagram.

After the above withdrawal — which, as we have stated, was made in 1863 solely at the request of the Kansas Senators and Representatives — Ard, who was admittedly qualified to take the benefits of the homestead laws, went upon the above two tracts, in June, 1866, intending, in good faith, to perfect a title to them under the homestead laws. He made substantial improvements upon them, and in July, 1866, in the accustomed way, made a homestead application at the local land office for the 160 acres. These two tracts of eighty acres each were so situated that.they could have been legally embraced in one homestead entry. Ard’s application was denied by the local office upon the ground, among others, that the land was within the place or granted limits of one of the aided roads. At that time the Missouri-Kansas Company — under whom the plaintiffs in error claim — had not filed any map of definite location. No such map was filed until December 6, 1866. In the spring of 1867 Ard did further work! on the land, building a house thereon, and about July 1st of that year he again applied at the local land office, under the homestead laws, for the land. This application was also denied on the same grounds as were assigned in reference to his origina! application. In 1872 he made a more formal application, but was again, repulsed by the Commissioner of the Land Office. •Yet he did not abandon his claim, but held steadily to the purpose of obtaining the entire 160 acres under the homestead laws, and remained in open, notorious possession, assert

It should be stated in this connection that after the rejection- of Ard’s original homestead application upon the mistaken ground that the lands were within the place or granted limits of one of the roads, it was ascertained that neither of the tracts was within place limits, but both were within the overlapping indemnity limits of the respective roads. The tract in section 11 was selected as indemnity for lands lost jointly by the two companies, and was patented by the State to the Missouri-Kansas Company on May 19, 1873. The company- knew when it selected the land to supply alleged deficiencies in place limits as well as when it took the patent from the State, that Ard was in actual possession, claiming the land under the homestead laws. The tract in section 2 was selected by the same company on April 14, 1873, and on November 3, 1873, it received a patent for it directly from the United States.

C. H. >Pratt having purchased from the Missouri-Kansas Company the tract in section 2, and Brandon having purchased from the same company the tract in section 11, each commenced a separate action of ejectment against Ard in a state eourt. Judgment went against Ard in each case, and he was also' unsuccessful in the Supreme Court of Kansas. Ard v. Pratt, 43 Kansas, 419; Ard v. Brandon, 43 Kansas, 425.

Ard then brought both eases here, and the judgments were reversed, further proceedings being ordered to be taken in accordance with the opinion of' this, court. Ard v. Brandon, 156 U. S. 537 . What'this court said bears directly upon the. case as now presented. Mr. Justicé Brewer, delivering the judgment of the .court, referred to the testimony — and the same facts appear in the present record — and observed that by reason of his occupancy and improvement of "the land for the purpose of a homestead and by- his homestead application —all of which was prior to the withdrawal of the lands by the Land Department — Ard, who had admittedly the requisite qualifications under the homestead laws, acquired an equitable

Subsequently, after the return of the above cases to the inferior state court, Pratt, the claimant of the tract in section 2, abandoned his ejectment - suit against Ard, and the

Later on, the present case, so far as it involved the title to section 11, as between Brandon and Ard, was again heard upon its merits in the. state court, arid judgment went in favor of Ard. That judgment was affirmed by the Supreme Court of Kansas, which had before it the judgments in Ard v. Brandon, 156 U. S. 537 , and in United States v. M., K. & T. Ry. Co., 141 U. S. 358 .

Subsequently, after ’the decision in Ard v. Brandon,' 156 U. S. 537 , Ard- renewed his application, under the homestead laws, for both tracts,. Having made the proper proofs, and paid the required fees, his application was approved and a patent issued to him by the United States on October 17, 1900, under the homestead law of 1862 and the acts supple

2. When we recall what this court (as above quoted) said in Ard v. Brandon, 156 U. S. 537 , about Ard’s rights in respect of these identical lands, there is no room to doubt th'e correctness of the judgment of the Supreme Court of Kansas in his favor, unless we hold, as plaintiffs contend we should, that Ard is concluded by the decision of the Circuit Court of the United States in th'e action brought by the United States to cancel certain patents issued to the Missouri-Kansas Company. But we cannot so hold. As already stated, Ard was not, and was not sought to be made, a party to that action.' He had no control of it and was not entitled of right to be heard or to adduce evidence in it. He was not in any legal sense represented in the case, nor can he be regarded as privy to the issue between the United States and those whom it sued. His membership in the Settlers’ Protective Association —which association, it is said, induced the United States to bring the action referred to — did not so connect him, in law, with the litigation as that the judgment therein would bind him or be conclusive evidence against him. It must be assumed that the Attorney General of the United States sued the Missouri-Kansas Company only in the discharge of his official duty, and for the purpose of asserting the rights of the Government as against that company. He could not have represented merely private parties in that suit; he represented only the United States. Ard was not, in any legal sense, a privy to the issue of record between the United States and its opponents, although the validity of the patent received by the Missouri-Kansas Company for the land • here in question— under which company the present plaintiffs in error claim—

It results that, in the present case, involving only the title to the tract of eighty acres in section 11, that, by his rightful occupancy of that tract, under and in conformity with the homestead laws, before any interest therein was legally acquired by the railroad company, Ard’s equitable rights, thus accruing and supported at the final hearing by a patent from the United States, must prevail.

For the reasons stated, the judgment of the Supreme Court of Nansas is

Affirmed.

Mr. Justice Bjiewer took no part in the decision of this case.