By the filing of the map of the line surveyed prior to December
24, 1867, for the route of the railroad now known as the Missouri,
Kansas, and Texas Railway, the route of the road was definitely
fixed within the intent and meaning of the Act of July 26, 1866, c.
270, 14 Stat. 289, granting lands to aid in its construction, and
while the principal object in filing the map was to secure the
withdrawal of the lands granted, it also operated to definitely
locate the line and limits of the right of way.
The grant of the lands and the grant of the right of way were
alike grants
in praesenti, and stood on the same footing,
so that, before definite location, all persons acquiring any
portion of the public lands after the passage of the act took the
same subject to the right of way for the proposed road.
The rights of the settler in this case were acquired after the
line had been located, and were not affected by the subsequent act
of the company in changing the location.
This was an action of ejectment brought by the Missouri, Kansas
and Texas Railway Company, a corporation of the State of Kansas,
and the Missouri Pacific Railway Company, a corporation of
Missouri, in the District Court of Labette County, Kansas, August
17, 1887, against J. B. Cook and L. H. Printz, to recover
possession of certain real estate situated in
Page 163 U. S. 492
the City of Chetopa in that county and described in the
petition. Defendants filed a general denial. The case was tried by
the court on an agreed statement of facts, and judgment rendered
for defendants. Plaintiff thereupon took the case on error to the
Supreme Court of Kansas, by which the judgment of the district
court was affirmed. 47 Kan. 216. Thereupon a writ of error was
taken out from this Court.
The agreed statement was as follows:
"1. The Missouri, Kansas and Texas Railway Company was on the
25th day of September, 1865, duly organized as a corporation under
the name of the Union Pacific Railway Company, Southern Branch, and
on the 3d day of February, A.D. 1870, its name was duly changed,
and made the Missouri, Kansas and Texas Railway Company, and it is
the railway company referred to in the Act of Congress approved
July 26, 1866, entitled"
"An act granting lands to the State of Kansas to aid in the
construction of a southern branch of the Union Pacific Railway and
Telegraph, from Fort Riley, Kansas, to Fort Smith, Arkansas."
"2. The acceptance of the terms, conditions, and impositions of
said act by the said Union Pacific Railway Company, Southern
Branch, was signified in writing, under the corporate seal of said
company, duly executed pursuant to the direction of its board of
directors first had and obtained, which acceptance was made and
deposited with the Secretary of the Interior within one year after
the passage of said act."
"3. The land in the petition described is a part of the lands
known as the 'Osage ceded lands,' granted to the United States by
the treaty between the United States of America and the Great and
Little Osage Indians, proclaimed January 21, 1867."
"4. Prior to the 24th day of December, 1867, a line was surveyed
for the route of said railroad by G. M. Walker, then chief engineer
of said company, which was the line from which the lands mentioned
in stipulation No. 7 herein were withdrawn from market; but that
line did not touch the southwest quarter of section thirty-four
(34), township thirty-four (34), range twenty-one (21), which
includes the land described in plaintiff's petition in this case,
and afterwards, and between
Page 163 U. S. 493
May 1, 1870, and June 6, 1870, said company located its road on
the line where now operated, and built same in substantial
compliance with said act of Congress, but the route of said road on
its present location has never been approved by the President of
the United States unless such approval is shown by the other facts
herein admitted."
"5. The premises in plaintiff's petition demanded lie wholly
within one hundred feet of the center line of the main track of the
railway so built and constructed as aforesaid, the center line of
said main track being the center of the right of way of the
railroad company."
"6. On the first day of December, 1880, the said Missouri,
Kansas and Texas Railway Company leased said railway to said
Missouri Pacific Railway Company, which has since possessed and
operated the same as such lessee."
"7. Upon the completion of said railway through said Osage ceded
land, the President of the United States issued to said Missouri,
Kansas and Texas Railway Company patents under said Act of Congress
approved July 26, 1866, for the alternate sections of land
designated by odd numbers, to the extent of five alternate sections
per mile on each side of said railroad, which are the same patents
set aside in the case of
Missouri, Kansas & Texas Railway
Company v. United States, reported in
92 U. S.
733,
92 U. S. 760."
"8. The quarter section, including the land in question, was
entered and purchased by one W. A. Hodges, from the government of
the United States, on October 9, 1869, and a certificate in due
form was on that day, by the proper officers, issued to him
therefor, and thereafter, and on November 1, 1870, a patent in due
form was issued therefor, pursuant to the said entry, by the
government of the United States to said patentee, Hodges, which was
duly signed and executed, and a perfect chain of title from said
Hodges, patentee, now runs to and terminates in said defendant J.
B. Cook, and he is the owner thereof, unless the same is owned by
plaintiff by virtue of the facts herein admitted and the law
governing the same. Defendant Printz is in possession of the
premises in controversy as the tenant of defendant Cook. "
Page 163 U. S. 494
"9. None of the land in dispute lies within fifty feet of the
line of the center of the main track of said railroad, nor does
defendant claim any part of the strip of land within fifth feet on
either side of the center of said track."
"The plaintiff at the time of constructing said road, erected a
depot building on its right of way, and the land on which said
building stands is adjacent to the land in dispute, which said
depot has been used all the time since its erection for the purpose
of receiving freight and passengers for shipment; nor does
defendant claim any ground on which side tracks of said railroads
are now located."
MR. CHIEF JUSTICE FULLER, after stating the facts in the
foregoing language, delivered the opinion of the Court.
Plaintiff claimed the premises in question as a part of its
right of way, under and by virtue of the Act of Congress approved
July 26, 1866, entitled
"An act granting lands to the State of Kansas to aid in the
construction of a southern branch of the Union Pacific Railway and
Telegraph, from Fort Riley, Kansas, to Fort Smith, Arkansas."
14 Stat. 289, c. 270.
By this act, five alternate sections of land per mile on each
side of the road were granted to the State of Kansas for the use
and benefit of the railroad company, and in case it appeared that
the United States had,
"when the line of said road is definitely located, 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 purposes whatever,"
then other lands might be selected in lieu thereof:
"Provided that any and all lands heretofore reserved to the
United States by any act of Congress, or in any other manner
Page 163 U. S. 495
by competent authority, for the purpose of aiding in any object
of internal improvement or other purpose whatever, be, and the same
are hereby, reserved and excepted from the operation of this act
except so far as it may be found necessary to locate the route of
said road through such reserved lands, in which case the right of
way, two hundred feet in width, is hereby granted, subject to the
approval of the President of the United States."
The fourth section read:
"That as soon as said company shall file with the Secretary of
the Interior maps of its line, designating the route thereof, it
shall be the duty of said secretary to withdraw from the market the
lands granted by this act in such manner as may be best calculated
to effect the purposes of this act and subserve the public
interest."
By the sixth section is was provided
"that the right of way through the public lands be, and the same
is hereby, granted to said Pacific Railroad Company, Southern
Branch, its successors and assigns, for the construction of a
railroad as proposed. . . . Said way is granted to said railroad to
the extent of one hundred feet in width on each side of said road
where it may pass through the public domain; also all necessary
ground for station buildings, workshops, depots, machine shops,
switches, side tracks, turn-tables and water stations."
The land in question was a part of the land ceded to the United
States by the Great and Little Osage Indians by the treaty
proclaimed January 21, 1867, 14 Stat. 687.
From the statement of facts, it appears that prior to December
24, 1867, a line was surveyed for the route of the railroad by the
chief engineer of the company, which was the line from which the
granted lands were withdrawn from market, but that line did not
touch the quarter section embracing the land described in the
petition. The precise date of the filing of the map and profile of
this survey does not appear, but this is not material.
In the instances of many of the land grants, the acts
contemplated a preliminary designation of the general route by map
filed in the Department of the Interior, upon which the
Page 163 U. S. 496
lands were withdrawn, but the grants only took effect on a
subsequent designation of the definite location of the line of the
road.
Kansas & Pacific Railroad v. Dunmeyer,
113 U. S. 629;
United States v. Southern Pacific Railroad, 146 U.
S. 570. But this grant made no provision for any
preliminary surveys and maps, and the only map provided for was
that mentioned in section 4, being, as stated, a map of "its line
designating the route thereof." We think that by the filing of the
map of the line surveyed, the route was definitely fixed within the
intent and meaning of the act, and while the principal object in
filing the map was to secure the withdrawal of the lands granted,
it also operated, and could not otherwise than operate, to
definitely locate the line and limits of the right of way. And this
view is sustained by previous adjudications of this Court.
By the Act of Congress of July 23, 1866, entitled "An act for a
grant of lands to the State of Kansas to aid in the construction of
the Northern Kansas Railroad and Telegraph," 14 Stat. 210, a grant
of lands to the State of Kansas for the benefit of the St. Joseph
and Denver City Railroad Company was made in substantially the same
terms as those of the grant of July 26, 1866, under
consideration.
In
Van Wyck v. Knevals, 106 U.
S. 360, this act came before this Court for
construction, and the rights of the parties depended on the time of
the definite location of the road. Knevals, the complainant below,
claimed through the company, and contended that the filing of the
map with the Secretary of the Interior was the location of the
road, and MR. JUSTICE FIELD, speaking for the Court, said:
"We are of opinion that the position of the complainant is the
correct one. The route must be considered as 'definitely fixed'
when it has ceased to be the subject of change at the volition of
the company. Until the map is filed with the Secretary of the
Interior, the company is at liberty to adopt such a route as it may
deem best after an examination of the ground has disclosed the
feasibility and advantages of different lines. But when a route is
adopted by the company, and a map designating it is filed with the
Secretary of the Interior and
Page 163 U. S. 497
accepted by that officer, the route is established. It is, in
the language of the act, 'definitely fixed,' and cannot be the
subject of future change so as to affect the grant except upon
legislative consent. No further action is required of the company
to establish the route."
Walden v. Knevals, 114 U. S. 373. And
this was in accordance with the ruling of Mr. Justice Miller, on
circuit, in
Knevals v. Hyde, 6 F. 651.
The same conclusion necessarily followed in respect of the right
of way. The grant of the lands and the grant of the right of way
were alike grants
in praesenti, and stood on the same
footing, so that, before definite location, all persons acquiring
any portion of the public lands after the passage of the act took
the same subject to the right of way for the proposed road. The
easement and the lands were afloat until, by definite location,
precision was given to the grant, and they became permanently
fixed.
Railroad Co. v. Baldwin, 103 U.
S. 426.
After the line had thus been definitely located, on October 9,
1869, the quarter section containing the real estate in controversy
was entered at the government land office by W. A. Hodges, to whom
the proper certificate was that day issued, under a resolution of
Congress approved April 10, 1869, 16 Stat. 55, in favor of
bona
fide settlers residing on any portion of the land acquired
from the Osage Indians by the treaty proclaimed January 21, 1867.
Between May 1 and June 6, 1870, the railroad company ran a second
line, on which it built its road between those two dates, and
entered into occupancy of a right of way one hundred feet in width.
This line ran something like a mile east of that of definite
location and through the quarter section in question, but none of
the real estate in dispute lies within the right of way so
occupied. On November 1, 1870, a patent was issued in due form to
Hodges pursuant to his entry, and defendant Cook (under whom
defendant Printz was in possession as tenant) holds by a perfect
chain of title from Hodges. The issuing of the patent shows that
the Land Department had found the existence of all the conditions,
such as actual occupancy of
Page 163 U. S. 498
and residence on the premises and like matters, requisite
thereto, and it took effect by relation as of the date of the
certificate. It follows that, as the rights of the settler were
acquired after the right of way of the road had been definitely
located, he was not subject to any risk which others may incur who
purchase while the location remains floating and uncertain, and he
could not be deprived of rights which had thus attached by the
subsequent action of the company, and his grantees stand in his
shoes.
We need not consider what effect, if any, deviations of the kind
in question might have upon the grant,
Van Wyck v. Knevals,
supra; 16 Ops.Attys.Gen. 457; 6 L.D. 209, nor is it necessary
to discuss the contention that a railroad company, by once locating
its road, has exhausted its authority, and cannot relocate it on a
new line without additional legislative permission so to do, or the
effect of the statute of Kansas which allows railroad companies to
change the location of their tracks. Whatever the rights of the
company in this regard, such a change could not affect the rights
of third parties which had in the meantime lawfully intervened.
Washington & Idaho Railroad v. Coeur d'Alene Railway
&c., 160 U. S. 77.
The inquiry does not arise as to how the railroad company
acquired the one hundred feet which it occupies for right of way.
It may have been purchased, or acquired by condemnation or by gift.
We dispose of the case on the ground that, on the record before us,
the state courts did not err in holding that plaintiff was not
entitled to recover the premises in controversy, which do not
embrace the right of way actually occupied by the company.
Judgment affirmed.
