Page 104 U. S. 330
This was a suit in equity brought by William H. Wood against the
Burlington and Missouri River Railroad Company wherein he prays for
a decree adjudging that the legal title to certain land, being a
portion of section 13, township No. 8, range 7, in Lancaster
County, Nebraska, is vested in him.
The bill alleges that on Feb. 1, 1866, one Robert Beall made a
preemption filing and an entry upon the land in question, and
resided thereon from Feb. 1, 1866, to June 27, 1867, made valuable
improvements, but afterwards abandoned it; that, May 24, 1871, the
complainant duly made a homestead entry thereon, and complied with
the laws so as to entitle him to a patent therefor, had it not been
for the grant to the Burlington and Missouri River Railroad Company
by the Act of Congress approved July 2, 1864; that on or about Jan.
31, 1877, he made the requisite final proof to entitle him to a
patent, but that the Land Department rejected his application
therefor, on the ground that the land had been approved to the
company by virtue of that act; that the company duly accepted the
grant, and on June 15, 1865, filed with the Secretary of the
Interior a map showing the location of the line whereon the road
was built; that the land is within twenty miles thereof, and on or
about April 8, 1875, was, through mistake and erroneous
construction of law, selected for, and patented to, the
company.
A demurrer to the bill having been sustained and the bill
dismissed, Wood appealed to this court.
MR. JUSTICE FIELD delivered the opinion of the Court.
The grant to the Burlington and Missouri River Railroad Company,
by the Act of Congress of July 2, 1864, c. 216, was of ten sections
of land for every mile on each side of the line of its road when
located, such sections to be designated by odd numbers, and the
land to be only taken which, at the time the line, was definitely
fixed, had not been sold, reserved, or otherwise disposed of by the
United States, and to which a preemption or homestead claim had not
attached. The grant
Page 104 U. S. 331
was one of quantity, without any designation, in express terms,
of any lateral limit on either side of the road, within which the
land was to be selected. In this respect it differed from nearly
all other grants of land made by Congress in aid of the
construction of railroads. Other grants usually prescribed a
lateral limit. The omission in that case was not accidental. Nearly
all the land within the distance usually prescribed as a limit had
already been disposed of to another railroad company, or, from the
general settlement of the country, was likely to be appropriated
before the line of the road could be definitely located. In order,
therefore, that its proposed aid might not be defeated, Congress
allowed the land granted to be taken on the line of the road
wherever it could be found, without regard to the distance from its
line to which the grantee might be compelled to go to satisfy its
grant, by reason of previous appropriations.
Although there was no express limitation of the distance from
the road in which the land was to be selected, it was necessarily
implied that the selection should be made of alternate sections
nearest the road, of which the land had not been previously sold,
reserved, or otherwise disposed of. The company was not at liberty
to pass beyond land open to its appropriation and take lands
farther removed from its road. In all grants which are to be
satisfied out of sections along a line of a road, it is necessarily
implied, in the absence of specific designation otherwise, that the
land is to be taken from the nearest undisposed sections of the
character mentioned. Such grants give no license to the grantees to
roam over the whole public domain lying on either side of the road
in search of land desired. The grants must be satisfied out of the
first land found which meets the conditions named.
The line of the defendant's road was definitely located in June,
1865. The land consisting of the alternate sections designated by
odd numbers within a limit of twenty miles was withdrawn from sale
in July following, and so much of it as had not been previously
sold, reserved, or otherwise disposed of, or to which a homestead
or a preemption claim had not attached, was thus appropriated to
the satisfaction of the grant. It could not be subsequently applied
to other purposes or
Page 104 U. S. 332
devoted to the claim of private parties. It was immediately
taken by the grant, and would have been sufficient to satisfy it in
full if no portion of the odd sections had been previously disposed
of or subjected to other claims. And the grantee could only go
beyond that limit when it was found that there was a deficiency
remaining after all within it had been appropriated.
The grant was one
in praesenti, and when the sections
granted were ascertained, the title to the land took effect by
relation as of its date, except as to the reservations named. The
land to which the complainant asserts a homestead claim is embraced
in one of the sections within the twenty-mile limit; his claim
therefore necessarily falls before the superior right of the
company. Its estate had become vested when he took the initiatory
steps to secure a homestead right.
The contention of the complainant, so far as we can understand
his position, is this: that as there was no lateral limit expressed
in the act of Congress within which the land granted was to be
selected, therefore it might be selected at any distance from the
road, and that no appropriation could be considered as made, or any
estate deemed to be vested, until the sections were actually
selected -- that is, until the patent of the United States was
issued. This notion arises from a misconception of the language of
our decision in the case of the United States against the same
company, reported in 98th U.S. It there appeared that within the
twenty-mile limit there was not sufficient unappropriated land to
meet the grant, and accordingly the company made application to the
Land Department for land outside of that limit for the balance, and
patents for such balance were issued to it. A suit was afterwards
brought by the United States to cancel those patents. We there
held, as in this case, that the grant was one of quantity, and we
observed that the land was subject only to these limitations: first
that the land must be embraced by the odd section; second that it
must be taken in equal quantities on each side of the road; third
that it must be on the line of the road; and fourth that it must
not have been sold, reserved, or otherwise disposed of by the
United States, and a preemption or homestead claim must not have
attached to it at the time the
Page 104 U. S. 333
line was located. And we said that the terms of the grant did
not require the land to be contiguous to the road, and if not
contiguous, it was not easy to say at what distance the land to be
selected would cease to be along the line. This language was used
with reference to the objection in the case, that land could not be
taken beyond the twenty-mile limit, where all within that limit had
been previously exhausted. We did not intend to intimate that the
land granted could be taken at any distance, without regard to
previous appropriations, but only that land could be thus taken
where, from previous appropriations, as in that case, the grant
could not otherwise be satisfied.
Decree affirmed.