The land in controversy, being 240 acres situated in California,
was settled upon and improved in good faith by H. in 1858, with the
intention of taking at the proper time, the necessary steps to
acquire the title thereto from the United States by procuring its
location in part satisfaction of the grant made by the United
States to the State of California of 500,900 acres of land, and
then of purchasing the land in question from the state. In June,
1864, H., in proper form, made application to the state, under the
act of California approved April 27, 1863, for the sale of certain
lands, to locate this land as a "lieu school land location," and to
purchase it from the state. This application and offer to purchase
were approved by the state's locating agent upon the condition
that
"if said location should be made and approved by the United
States, it should be for the use and benefit of said applicant upon
his complying with all the conditions and provisions of the said
Act of April 27, 1863."
Subsequently, February 28, 1865, the state's agent, proceeding
under the state law, located this land in lieu of a portion of
those which had been lost to the state at the request and for the
use of H., by filing an application for the same in the United
States land office at San Francisco. This application to purchase
was completed, so that, on the 31st day of August, 1865, H.
received from the state a certificate of purchase in due form.
Menotti, the plaintiff in error, claims under H. At the time the
above application was filed in the land office at
Page 167 U. S. 704
San Francisco, the lands in controversy were withdrawn from
preemption, private entry, and sale by order of the Land Department
for the benefit of a railroad company which had filed its map of
general route under the Acts of Congress of July 1, 1862, 12 Stat.
489, c. 120, and July 2, 1864, 13 Stat. 356, c. 216, granting lands
to aid in the construction of a railroad and telegraph line from
the Missouri River to the Pacific Ocean. By the Act of Congress of
July 23, 1866, 14 Stat. 218, c. 219, quieting land titles in
California, it was provided that
"in all cases where the California has heretofore made
selections of any portion of the public domain in part satisfaction
of any grant made to said state by any act of Congress, and has
disposed of the same to purchasers in good faith under her laws,
the lands so selected shall be, and hereby are, confirmed to said
state."
This act excepted from its operation
"lands to which any adverse preemption, homestead or other right
has at the date of the passage of this act. been acquired by any
settler under the laws of the United States, or to any lands which
have been reserved for naval, military or Indian purposes by the
United States, or to any mineral land, or to any land held or
claimed under any valid Mexican or Spanish grant, or to any land
which, at the time of the passage of this act, was included within
the limits of any city, town or village, or within the County of
San Francisco."
The railroad company filed its map of definite location in 1870.
In 1872, the plaintiff in error, claiming under the purchaser from
the state, made application to the proper officers of the United
States Land Department for a confirmation of the right of said
state to said land so selected by said state for his benefit, under
the provisions of the above Act of Congress July 23, 1866, and
thereupon, and upon due notice to the railroad company and the
parties claiming under it, such proceedings were regularly had in
said department and such proofs submitted and such a hearing had
that, on the 15th day of May, 1874, the Commissioner of the General
Land Office, under the direction and with the approval of the
Secretary of the Interior, listed over and certified to said state
this 240 acres of land "as confirmed to said State of California."
In 1875, Menotti received a patent from the state. The railroad
company received a patent from the United States in 1872, but this
was after the above proceedings under the act of 1866 were
initiated.
Held:
(1) That the Act of July 1, 1862, as amended by the Act of July
2, 1864, did not grant to the railroad company any lands which had
been sold, reserved or disposed of by the United States, nor impair
any existing "lawful claim," at the time the line of railroad was
"definitely fixed."
(2) The act of 1866 did not except from its operation lands
within the exterior lines of the general route of the railroad, and
which, for the benefit of the railroad company, had been withdrawn
by executive order from preemption, private entry, and sale. The
withdrawal order of 1865 did not stand in the way of the passage of
the act of 1866, first because the acts of 1862 and 1864 by
necessary implication recognized the right of Congress to
dispose
Page 167 U. S. 705
of the odd-numbered sections, within certain limits on each side
of the road, or any of them at any time prior to the definite
location of the line of the railroad; second, both acts reserved to
Congress the power to alter, amend or repeal them; third, the
filing of the map of general route gave the railroad company no
claim to any specific lands within the exterior limits of such
route on either side of the road, the rule being that a grant of
public lands in aid of the construction of a railroad is, until its
route is established, in the nature of a "float," and title does
not attach to any specific sections until they are identified by an
accepted map of definite location of the line of the road. The
railroad company accepted the grant subject to the possibility that
Congress might, in its discretion, and prior to the definite
location of its line, sell, reserve or dispose of enumerated
sections for other purposes than those originally contemplated.
Consequently, at the date of the definite location of the railroad
in 1870, there was a "lawful claim" upon these lands based on the
act of 1866, which confirmed to the state, for the benefit of those
who had purchased from it in good faith, lands embraced by its
provisions.
The case is stated in the opinion.
MR. JUSTICE HARLAN, after stating the facts in the foregoing
language, delivered the opinion of the Court.
This action was commenced in the District Court of the Third
Judicial District of California.
The complaint alleged that on the 23d day of April, 1873, the
original plaintiff, Charles McLaughlin, became the owner in fee
simple and entitled to the possession of the south half of section
twenty-one in township seven south of range three west of the Mt.
Diablo base and meridian, according to the United States survey;
that thereafter he continued to be the owner and was entitled to
the possession of said land, but that, on the above date, the
defendant Menotti entered into possession, ousted him, and
continued to hold possession, to his damage in the sum of one
thousand dollars.
The answer of the defendant denied each allegation of the
complaint. McLaughlin died, and his estate was distributed to the
present appellees, who were substituted as plaintiffs.
Page 167 U. S. 706
There have been two trials of the case, each time by the court
without the intervention of a jury. The first judgment, which was
for the defendant, was reversed by the Supreme Court of California
because of the insufficiency of the finding of facts bearing upon
the question of title. 89 Cal. 354. The last judgment was also for
the defendant, but it was reversed, and the cause remanded with
directions to enter judgment in favor of the plaintiffs for the
lands in controversy and for rents and profits.
McLaughlin v.
Menotti, 105 Cal. 572. From that decree a writ of error was
sued out to this Court.
The case made by the agreed statement of facts and by the
evidence introduced at the trial was substantially as follows:
The Central Pacific Railroad Company of California executed,
October 31, 1864, an assignment to the Western Pacific Railroad
Company of the right to construct its road between San Jose and
Sacramento, and of its right accruing to it by virtue of the Acts
of Congress of July 1, 1862, 12 Stat. 489, c. 120, and July 2,
1864, 13 Stat. 356, c. 216, to the land in controversy in this
action. This assignment was ratified by Congress March 3, 1865, 13
Stat. 504, c. 88.
On the 8th day of December, 1864, the Western Pacific Railroad
Company filed in the office of the Secretary of the Interior a map
designating the general route of its road. A copy of that map was
received at the United States land office at San Francisco on the
30th day of January, 1865, accompanied by an order from the
secretary reserving from preemption, private entry, and sale, for
the benefit of the railroad company, the odd-numbered sections of
land within twenty-five miles on either side of the line of such
general route. This reservation was in force from the day last
mentioned.
On February 20, 1870, the Central Pacific Railroad Company filed
in the Department of the Interior the map of the definite location
of its railroad between San Jose and Sacramento, but the road
opposite the land in controversy, between San Jose and Niles, was
completed about the first day of September, 1866.
Page 167 U. S. 707
On June 22, 1870, the Central Pacific Railroad Company of
California and the Western Pacific Railroad Company consolidated
under the name of the Central Pacific Railroad Company.
The official map of township seven south, range three west, Mt.
Diablo base and meridian, was filed by the United States surveyor
general for California in the United States land office at San
Francisco on February 27, 1865. Prior to that date, and on or about
the 10th day of June, 1864, a survey was made by a deputy United
States surveyor for California of the part of that township
embracing the land in controversy, but that survey was not made by
authority of the government of the United States. No actual survey
of any portion of that township had ever been made before June,
1864, and up to that time, no attempt had been made by any person,
or by the government to have its boundaries ascertained or to
establish the lines of sections in that township.
The land in controversy in this action is within twenty miles of
the line of definite location of the Central Pacific Railroad
Company, and within twenty-five miles, but not within ten miles,
from the line of the general route of the railroad.
On the 3d day of April, 1872, the United States duly executed
and delivered to the Central Pacific Railroad Company a patent for
the land in controversy, with other lands. It was in the usual form
of patents issued under the Pacific Railroad Acts. And on the 3d
day of April, 1873, that company executed to McLaughlin a deed
conveying to him all its right, title, and interest in this
land.
At the commencement of this action, the defendant was in the
possession of the south half of the southeast quarter and the
southwest quarter of section twenty-one of township seven south,
range three west, Mt. Diablo meridian, being 240 acres of the land
described in the complaint, and of no more. No part of these lands
are or were mineral lands, or were returned or denominated as
mineral lands.
It was found that one Philip Hirleman settled upon and
Page 167 U. S. 708
improved this land as early as 1858; that it was
"then used for pasturage, had a house upon it, and was enclosed
partly by a post and rail fence, and for the balance by gulches
forming a natural enclosure;"
that in June, 1864, and until December 6, 1866, it was occupied
by him, and had on the land during that time a house, barn,
corrals, a small field of wheat and potatoes, and cows and horses.
The finding states that he
"as there all the time; had possession of about 1,000 acres of
land, including the land in controversy, which was enclosed by two
fences and two gulches; each fence at each end thereof connecting
with the gulches; the gulches and fences constituting an enclosure
of the tract of about 1,000 acres, including the land in
controversy. The fences ran east and west. The northerly fence was
between a half mile to a mile in length, and ran partly across
section 21, and the south fence was upon a section lying south of
section 21."
It was also found that,
"on January 30, 1865, the said Hirleman was, and had been prior
thereto and during the year 1864, and was subsequent to the said
30th day of January, 1864, up to the time of the execution by him
of the deed to Jean Peter, a settler in good faith on the land
involved in this action, to-wit, said 240 acres, and that the
improvements hereinabove designated were made on the said land by
him in good faith, and the such settlement by him, and the said
improvements, were made with the intention in good faith of taking,
at the proper time, the necessary steps to acquire the title to
said land from the government of the United States by procuring its
location in part satisfaction of the grant made by the government
of the United States to the State of California of 500,000 acres of
land, by act of Congress of date _____, and then of purchasing the
land involved in this action from the State of California."
During the years 1864 and 1865, Hirleman was a naturalized
citizen of the United States; was then, and had been since 1858, a
resident in good faith of California and of the County of Santa
Cruz, in which county the land involved in this action was then
located, and was the head of a family, possessing all the
qualifications necessary to enable him to acquire the
Page 167 U. S. 709
title from the government of the United States to the land in
controversy.
It also appears from the finding of the court that under and by
virtue of the Act of the Legislature of the State of California of
April 27, 1863, entitled "An act to provide for the sale of certain
lands belonging to the State of California," Hirleman, on June 13,
1864,
"in due and proper form, made application to Leander Ransom, who
was then and there the duly appointed, qualified, and acting
locating agent of the State of California, under said act, to
locate as a lieu school land location, and to purchase from said
state the said 240 acres of land involved in this action, which
said application was accompanied with the affidavit of said
applicant, in due and proper form, required by the Act of April 27,
1863, and also with the affidavit of loyalty, in due and proper
form, required by the Act of April 27, 1863, and also the
affidavits of three disinterested witnesses as to the character of
said land and the fact that no valid claim existed thereto adverse
to said applicant's claim, as required by said Act of April 27,
1863, and that said locating agent on June 16, 1864, duly accepted
said application and affidavits and offer to purchase upon the
condition that if said location should be made and approved by the
United States, it should be for the use and benefit of said
applicant upon his complying with all the conditions and provisions
of said Act of April 27, 1863, and that said locating agent, on
February 28, 1865, in conformity with the provisions of said act,
located, in lieu of a portion of the lands of said state which had
been lost to said state, the said 240 acres of land involved in
this action at the request and for the use of said Hirleman by
filing an application for the same in the name and for the State of
California, in the United States land office at San Francisco, said
land being within the San Francisco land district, with the consent
of John F. Swift, who was then the duly appointed, qualified, and
acting register of said district, which said location made upon
said Hirleman's application was filed in the state land office of
the State of California on April 4, 1865, and was by the surveyor
general of said state approved May 13, 1865, and that the
Treasurer
Page 167 U. S. 710
of Santa Cruz County, within which county said land was then
included, was, in the said order of approval, directed to receive
in payment of said location, within fifty days from the recording
of said approval, twenty percent of the purchase money, and one
year's interest on the balance, in advance at the rate of ten
percent per annum, from the date of the location in the locating
agent's office."
On the fourth day of June, 1865, and within fifty days after the
recording of the approval of Hirleman's location of June, 1864,
payment was made by him to the Treasurer of Santa Cruz County in
all respects as directed, and on the thirty-first day of August,
1865, a certificate of purchase, in due form, covering the land,
was issued to him by the State of California, upon his
application.
On December 6, 1866, Hirleman conveyed by deed all his right,
title, and interest in and to these 240 acres or land to Jean
Peter, who thereupon took and held possession of the same until
March 9, 1867, when he conveyed by deed all his right, title, and
interest to the defendant, Menotti, who thereupon entered into
possession, and ever since has been, and still is, in
possession.
The finding further states that after the twenty-third day of
July, 1866 -- the date of the passage of the act of Congress
quieting land titles in California -- to wit, about the thirteenth
day of March, 1872,
"the defendant made application to the proper officers of the
United States Land Department for a confirmation of the right of
said state to said land so selected by said state for his benefit,
under the provisions of the Act of Congress entitled 'An act to
quiet land titles in California,' approved July 23, 1866, 14 Stat.
218, c. 219, and thereupon, and upon due notice to said Western
Pacific Railroad Company and the parties claiming under it, such
proceedings were regularly had in said department, and such proofs
submitted, and such a hearing in said department had, that on the
fifteenth day of May, 1874, the Commissioner of the General Land
Office, under the direction and with the approval of the Secretary
of the Interior, listed over and certified to said state the 240
acres of land as confirmed to said State of California. "
Page 167 U. S. 711
On December 31, 1874, full payment upon this location was made
to the state, through the proper county treasurer, by Menotti, as
assignee of Hirleman. And on February 25, 1875, the state issued to
him, as such assignee, its letters patent, granting the 240 acres
of land in question, upon the application above mentioned.
It appears from the above statement that Menotti and those under
whom he claims title have been in actual possession of the lands in
controversy since 1858. Of Hirleman's good faith in settling upon,
improving, and purchasing them no question can be made under the
findings of fact. Nor is any question made as to the good faith of
those claiming under him. It may also be stated that fifteen years
had expired after Hirleman settled upon the land and commenced
improving it before McLaughlin, the original plaintiff, obtained a
deed from the Central Pacific Railroad Company.
The case is therefore one that appeals strongly to the court for
the protection of the defendant, who claims under an actual
settler, who in good faith purchased these lands from the state,
and whose right thereto, as a claimant under the state, has been
confirmed by the action of the Land Department.
It is necessary to a clear understanding of the precise question
to be determined that reference be made to certain legislation by
the United States and California.
By the Act of Congress of March 3, 1853, entitled "An act to
provide for the survey of the public lands in California, the
granting of preemption rights therein, and for other purposes," 10
Stat. 244, 246, c. 145, it was provided
"that all the public lands in the State of California, whether
surveyed or unsurveyed, with the exception of sections sixteen and
thirty-six, which shall be and hereby are granted to the state for
the purposes of public schools in each township, and with the
exception of lands appropriated under the authority of this act or
reserved by competent authority, and excepting also the lands
claimed under any foreign grant or title and the mineral lands,
shall be subject to the preemption laws of fourth September,
eighteen hundred and forty-one, with all
Page 167 U. S. 712
the exceptions, conditions, and limitations therein, except as
is herein otherwise provided."
§ 6. By the same act it was provided
"that where any settlement, by the erection of a dwelling-house
or the cultivation of any portion of the land, shall be made upon
the sixteenth and thirty-sixth sections before the same shall be
surveyed, or where such sections may be reserved for public uses or
taken by private claims, other land shall be selected by the proper
authorities of the state in lieu thereof, agreeably to the
provisions of the Act of Congress, approved on the twentieth of
May, eighteen hundred and twenty-six, entitled 'An act to
appropriate lands for the support of schools in certain townships
and fractional townships, not before provided for,' and which shall
be subject to approval by the Secretary of the Interior."
§ 7.
The Act of Congress of July 1, 1862, 12 Stat. 489, c. 120,
relating to the construction of a railroad and telegraph line from
the Missouri River to the Pacific Ocean, contained a grant of the
odd-numbered sections of public lands (excluding mineral lands) on
each side of the road within certain limits
"not sold, reserved, or otherwise disposed of by the United
States, and to which a preemption or homestead claim may not have
attached at the time the line of said road is definitely
fixed."
§ 3. It provided that "Congress may at any time, having due
regard for the rights of said companies named herein, add to,
alter, amend or repeal this act." § 18. And by the Act of July 25,
1864, 13 Stat. 356, c. 216, the above grant was enlarged, and it
was provided (§ 4) -- using the words of the act as published by
the authority of Congress -- that any lands granted by it, or by
the above Act of July 1, 1862, of which it was amendatory,
"shall not defeat or impair any preemption, homestead, swamp
land, or other lawful claim, nor include any government reservation
or mineral lands, or the improvements of any
bona fide
settler, or any lands returned and denominated as mineral lands,
and the timber necessary to support his said improvements as a
miner, or agriculturalist, to be ascertained under such rules as
have been or may be established by the Commissioner of the General
Land Office in conformity with the provisions of the preemption
Page 167 U. S. 713
laws."
That act provided that "Congress may at any time, alter, amend
or repeal this act." § 22.
The Legislature of California by the Act of April 27, 1863,
entitled "An act to provide for the sale of certain lands belonging
to the state," Stat.Cal. 1863, c. 397, p. 591, made provision,
among other things, for the sale of "the unsold portion of the
500,000 acres granted to the state for school purposes,"
* and "the
sixteenth and thirty-sixth sections granted for the use of the
public schools, or lands in lieu thereof." § 2.
The same Act of California (April 27, 1863) (§ 4) provided:
"Whenever any resident of this state desires to purchase any
portion of a sixteenth or thirty-sixth section of any township in
this state, or lands in lieu thereof, if the lands sought to be
purchased have not been surveyed by authority of the United States,
he shall file in the office of the county surveyor of the county in
which said lands are situate, an application for a survey and plat
and field notes of the lands sought to be purchased, which, when
obtained, he shall file with the locating agent of the district,
together with an affidavit that he is a citizen of the United
States, or has filed his intentions to become a citizen, that he is
of lawful age, and is a resident of the state, that the lands
sought to be purchased are unoccupied except by the applicant, and
that there are no improvements on said lands other than his own,
and that. to the best of his knowledge and belief. there is no
valid claim existing to said land adverse to his own, and if the
applicant be a
Page 167 U. S. 714
female, that she is entitled to purchase and hold real estate in
her own name under the laws of this state, all of which shall be
verified by the affidavit of three disinterested witnesses."
By another section (§ 5) it is provided:
"Whenever a settlement is or has been made by occupation or
improvement upon any portion of a sixteenth or thirty-sixth section
of any of the public lands in this state, the locating agent of the
district in which such land is situated shall, if such occupant has
not acquired a preemption right to such land, notify such occupant
or claimant of the fact that he is upon lands belonging to the
state, and that he must make application to purchase the same of
the state within sixty days, or forfeit all rights to the lands. If
such occupant or claimant shall neglect or refuse to make such
application to purchase within the sixty days above named, such
land shall be subject to location and sale in the manner provided
for the sale of other sixteenth and thirty-sixth sections, with the
exception that the affidavits in regard to occupancy and
improvement may be omitted, in all of which case the application to
purchase shall be accompanied by the affidavit of the locating
agent of the district, that he has duly notified the occupant or
claimant of the land as provided by this section, and that for a
period of sixty days after such notice, the occupant or claimant
has refused or neglected to apply for said lands."
We have seen that before the passage of this act of Congress,
namely, on the 13th day of June, 1864, Hirleman made application in
proper form to the state, under the Act of April 27, 1863, "to
locate as a lieu school land location, and to purchase from said
state, the said 240 acres of land involved in this action." That
application and offer to purchase were accepted by the state's
agent on the 16th of June, 1864, upon the condition that if the
location was made and was approved by the United States, it should
be for the use of the applicant upon his complying with the
conditions of the Act of April 27, 1863. The location was made by
the state's locating agent on the 28th day of February, 1865, by
filing an application in its name in the land office at San
Francisco. The
Page 167 U. S. 715
application was approved by the surveyor general of California
on May 13, 1865. And on August 1, 1865, Hirleman having made
payment as required, a certificate of purchase covering the lands
was given to him by the state. These things all took place before
the railroad company filed its map of definite location and before
the passage of the act (to be presently referred to) quieting land
titles in California.
As Congress expressly declared that neither the act of 1864 nor
that of 1862 should defeat or impair "any preemption, homestead,
swamp land or other lawful claim," the controlling question in the
case is whether, within the meaning of that act, Hirleman's claim
ever became a "lawful claim" upon these lands. In determining this
question, the words in the act of 1862, "not sold, reserved or
otherwise disposed of by the United States . . . at the time the
line of said road is definitely fixed," must be taken in connection
with the words in the amendatory Act of July 25, 1864, "shall not
defeat or impair any . . . other lawful claim." Construing those
acts together, it is clear that no lands were embraced by the grant
to which any "lawful claim" had attached
at the time the line
of railroad was definitely fixed, on the 20th day of February,
1870. By the express terms of the granting act, as we have seen,
only odd-numbered sections were granted, which, at the date of the
definite location of the road, were not sold, reserved,
or
otherwise disposed of by the United States, and to which no
preemption, homestead, or other lawful claim had attached.
Kansas Pacific Railway v. Dunmeyer, 113 U.
S. 629,
113 U. S.
639-644.
What, then, was the situation at the time of the definite
location of the road?
By the Act of Congress of July 23, 1866, 14 Stat. 218, c. 219,
entitled "An act to quiet land titles in California," it was
provided (§ 1) that
"in all cases where the State of California has heretofore made
selections of any portion of the public domain in part satisfaction
of any grant made to said state by any act of Congress, and has
disposed of the same to purchasers in good faith under her laws,
the lands so selected shall be, and hereby are, confirmed to said
state,
provided
Page 167 U. S. 716
that no selection made by said state contrary to existing laws
shall be confirmed by this act for lands to which any adverse
preemption, homestead, or other right has at the date of the
passage of this act, been acquired by any settler under the laws of
the United States, or to any lands which have been reserved for
naval, military, or Indian purposes by the United States, or to any
mineral land, or to any land held or claimed under any valid
Mexican or Spanish grant, or to any land which at the time of the
passage of this act, was included within the limits of any city,
town, or village, or within the County of San Francisco,
and
provided further that the State of California shall not
receive under this act a greater quantity of land for school or
improvement purposes than she is entitled to by law."
The second section related to selected lands that had been
surveyed by authority of the United States; the third section to
selected lands that had not been surveyed by authority of the
United States, but which had been surveyed by authority of and
under the laws of the state, and sold to purchasers in good faith
under the laws of the state.
This act was passed several years before the railroad company
filed its map of definite location. Its object is manifest upon its
face. It was a statute of repose in respect of land titles in
California. Referring to the provisions of the Act of March 3,
1853, 10 Stat. 244, 246, c. 145, requiring surveys of the public
lands as a means of extending to California the system of surveys,
sales, and preemptions provided for other states and territories,
this Court, speaking by Mr. Justice Miller, in
Huff v.
Doyle, 93 U. S. 558,
93 U. S. 559,
said:
"The State of California, impatient of the delay of the United
States authorities in making these surveys, undertook to perform
that duty herself; and, assuming from data furnished by her own
surveys, that a great many acres of the sixteenth and thirty-sixth
sections were within one or the other of the exceptions of the
granting clause, for which the state was to select other lands, the
legislature authorized selections and locations to be made in lieu
thereof according to state surveys. The land in controversy was so
selected by the state and sold
Page 167 U. S. 717
to the plaintiff, who settled on it in 1865 and received from
the state a certificate of sale. The officers of the Land
Department, when the matter was brought to their attention, refused
to recognize the surveys made by the state or to acknowledge the
validity of selections and locations made under the state laws,
and, as many such selections and actual settlements under them had
been made, the hardships and embarrassments growing out of the
action of the state government caused the passage of the Act of
July 23, 1866."
In
Rowe's Case, the Land Department said:
"The Act of July 23, 1866, is remedial in its character, and
should be liberally construed. It is entitled 'An act to quiet land
titles in California,' and was evidently intended by Congress to be
curative of irregularities in selections made by the state under
various grants, and to confirm titles in innocent purchasers from
the state, notwithstanding irregularities in selections."
7 L.D. 397, 399.
While guarding the rights of settlers "under the laws of the
United States," and taking care to exclude from its provisions all
lands previously reserved for naval, military, or Indian purposes
by the government, mineral lands, lands held or claimed under valid
Mexican or Spanish grants, and lands which at the time were within
any city, town, or village, or within the County of San Francisco,
Congress intended that justice should be done to those who in good
faith had purchased from the state, under its laws, lands which the
state had selected from the public domain in part satisfaction of
grants by Congress. In accomplishing that result, it used in the
act of 1866 language that clearly covered all cases of that
character. No case of that kind was excepted from the operation of
the act. The present case belongs to that class. The lands in
controversy were selected by the state in part satisfaction of a
grant to it of public lands. And they were disposed of by the state
to a purchaser in good faith under its laws. All this occurred, as
we have seen, before the passage of the act of 1866; for Hirleman,
under whom Menotti claims, received form the state on the first day
of August, 1865, a certificate of purchase. And Menotti made
application to the Land Department, under the Act of
Page 167 U. S. 718
July 23, 1866, for the confirmation of the right of the state to
the land so selected by it for his benefit, and,
upon due
notice to the Western Pacific Railroad Company and the parties
claiming under it, such proceedings were had in that
department, such proofs submitted, and such hearing had that, on
the 15th day of May, 1874, the Commissioner of the General Land
Office, under the direction and with the approval of the Secretary
of the Interior, listed over and certified to the state the 240
acres of land "as confirmed to said State of California." Thereupon
Menotti, as assignee of Hirleman, on the 31st day of December,
1874, made full payment upon such location to the state, and on the
25th day of February, 1875, the state issued to him its letters
patent, based upon the original application in 1864 for the lands
in question.
In
Wilkinson v. Merrill, 52 Cal. 424, 426, the Supreme
Court of California said:
"Under the Act of Congress of July 23, 1866, it was a question
for the Land Department first, whether the state had selected the
land in controversy in part satisfaction of any grant made to the
state by any act of Congress; second, whether the state had
disposed of the land to a purchaser in good faith under her laws;
third, whether the land was within any of the exceptions by which
lands are reserved from the validating effect of the act; fourth,
whether the defendant had proved up his claim before the register
and receiver in the manner and within the time required by the
validating act. These were questions in which no one but the United
States and the defendant were interested, and the act of Congress
confers upon the Land Department the jurisdiction to determine
them. On deciding these questions in favor of the applicant,
claiming as a purchaser from the state, it is made the duty of the
Commissioner of the General Land Office to certify the lands over
to the state for the benefit of the purchaser. The case shows that
the selection by the state for the use of the defendant was
approved by the Commissioner of the General Land Office and by the
Secretary of the Interior after proper investigation, and thereupon
the land was duly listed to the
Page 167 U. S. 719
state. Up to this point, the rights of no third person had
intervened, and the Land Department, to whom the decision of all
the questions of law and fact pertaining to the proceeding were
specially confided, having decided in favor of their regularity and
validity, the decision was conclusive as against the United States,
and is conclusive as against the plaintiff, who subsequently
attempted to acquire the title from the state."
In
Huff v. Doyle, above cited, this Court said that it
admitted of grave doubt whether, in a suit at law, the validity of
the action of the Land Department confirming lands to the state
under the act of 1866 could be impeached, and that it certainly
could not be impeached on any other ground disclosed by the record
of that case than that it confirmed lands to the state which were
expressly excepted from confirmation. We are of opinion that while
the decision of the Land Department was conclusive as to all facts
upon which it necessarily rested, it was not conclusive as to the
question of law involved in it -- namely whether the act of 1866
confirmed to the state any lands which at the time were withdrawn
by executive order from "preemption, private entry, and sale" for
the benefit of the railroad company.
It is said that the railroad company filed its map of general
route on the 8th day of December, 1864, and that, these lands
having been withdrawn from preemption, private entry, and sale by
the executive order of January 30, 1865, they were not embraced by
the act of 1866. In our opinion, this is not a proper
interpretation of that act. The proviso of the first section
distinctly indicates certain cases to which the act should not
apply, and, distinctly excluding those cases, but no others, from
its operation, the act, in express words, confirmed to the state,
"in all cases," lands which the state had theretofore selected in
satisfaction of any grant by Congress, and sold to purchasers in
good faith under its laws. No exception is made of lands which at
the date of the passage of the act were withdrawn from preemption,
private entry, and sale, pursuant to the filing by the railroad
company of its map of general route. And the Court should not
construe the act as excluding lands in that condition unless it is
prepared to
Page 167 U. S. 720
hold that Congress had no power to confirm to the state lands
which at the time were simply withdrawn from preemption, private
entry, or sale, for railroad purposes. We cannot so adjudge. The
withdrawal order of January 30, 1865, did not, in our judgment,
stand in the way of the passage of such an act as that of 1866 --
first because the acts of 1862 and 1864, by necessary implication,
recognized the right of Congress to dispose of the odd-numbered
sections, or any of them, within certain limits on each side of the
road at any time prior to the definite location of the line of the
railroad; second, Congress reserved the power to alter, amend, or
repeal each act; third, the filing of the map of general route gave
the railroad company no claim to any specific lands within the
exterior limits of such route on either side of the road, the rule
being that a grant of public lands in aid of the construction of a
railroad is, until its route is established, in the nature of "a
float," and title does not attach to specific sections until they
are identified by an accepted map of definite location of the line
of road to be constructed. The railroad company accepted the grant
subject to the possibility that Congress might, in its discretion
and prior to the definite location of its line, sell, reserve, or
dispose of enumerated sections for other purposes than those
originally contemplated.
Kansas Pacific Railway v.
Dunmeyer, 113 U. S. 629,
113 U. S.
639-644;
United States v. Southern Pacific
Railroad, 146 U. S. 570,
146 U. S. 593.
In
Northern Pacific Railroad v. Sanders, 166 U.
S. 620,
166 U. S. 634,
we said:
"The company acquired, by fixing its general route, only an
inchoate right to the odd-numbered sections granted by Congress,
and no right attached to any specific section until the road was
definitely located and the map thereof filed and accepted. Until
such definite location, it was competent for Congress to dispose of
the public lands on the general route of the road as it saw
proper."
It is true, as said in many cases, that the object of an
executive order withdrawing from preemption, private entry, and
sale lands within the general route of a railroad is to preserve
the lands unencumbered until the completion and acceptance of the
road. But where the grant was, as here, of odd-numbered
Page 167 U. S. 721
sections within certain exterior lines,
"not sold, reserved or otherwise disposed of by the United
States, and to which a preemption or homestead claim may not have
attached at the time the line of said road is definitely
fixed,"
the filing of a map of general route and the issuing of a
withdrawal order did not prevent the United States, by legislation
at any time prior to the definite location of the road, from
selling, reserving, or otherwise disposing of any of the lands
which, but for such legislation, would have become, in virtue of
such definite location, the property of the railroad company.
Especially must this be true where the grant is made subject to the
reserved power of Congress to add to, alter, amend, or repeal the
act containing such grant. The act of 1866 did not take from the
railroad company any lands to which it had then acquired an
absolute right. The right it acquired, in virtue of the act making
the grant and of the accepted map of its general route, was to earn
such of the lands, within the exterior lines of that route, as were
not sold, reserved, or disposed of, or to which no preemption or
homestead claim had attached at the time of the definite location
of its road. That act did not violate any contract between the
United States and the railroad company, for the reason that the
contract itself recognized the right of Congress at any time before
the line of road was definitely located, to dispose of odd-numbered
sections granted. It was one that disposed of the lands in question
before the definite location of the road. It dedicated these and
like lands, part of the public domain, to the specific purposes
stated in its provisions, and to that extent removed the
restrictions created by the withdrawal order of 1865, leaving that
order in full force as to other lands embraced by it.
Bullard
v. Des Moines & Fort Dodge Railroad, 122 U.
S. 167,
122 U. S. 174.
That order took these lands out of the public domain as between the
railroad company and individuals, but they remained public lands
under the full control of Congress, to be disposed of by it, in its
discretion at any time before they became the property of the
company under an accepted definite location of its road.
We cannot doubt that the act of 1866 was a legal exertion
Page 167 U. S. 722
of the power of Congress over the public domain, and, as its
provisions embraced the present case, it must be adjudged that, at
the date of the definite location of the line of the railroad
referred to, there was a "lawful claim" upon the lands in
controversy, based on the act of 1866. In other words, that act
confirmed to the state, for the benefit of those who had purchased
from it in good faith, all lands embraced by its provisions and not
expressly excepted therefrom. The subsequent definite location of
the line of the railroad did not withdraw from its operation any
lands confirmed to the state. This doubtless was the view taken by
the Land Department, which, after due notice to all parties
interested, confirmed these lands to the state. The circumstance
that the railroad company had, before that action of the Land
Department, obtained a patent covering these with other lands is
not material, for the reason that they had been segregated from the
public domain by the act of 1866, and were thereby excluded from
the grant of 1862 notwithstanding they were within the exterior
lines of the general route of the railroad. Besides, Menotti's
proceedings under the act of 1866 were instituted in that
department before the railroad company obtained its patent.
Without considering other aspects of the case, we are of opinion
that the defendant was entitled, upon the findings of fact, to a
judgment in his favor. A judgment in favor of the plaintiffs was a
denial of rights secured to the defendant by the laws of the United
States.
As the views we have expressed determine the case for the
plaintiff in error, it is unnecessary to consider whether, as held
by the supreme court of the state, the words in the fourth section
of the printed Act of July 4, 1864, 13 Stat. 356, c. 216, "the
improvements of any
bona fide settler, or any lands
returned and denominated as mineral lands," should read, "the
improvements of any
bona fide settler on any lands
returned and denominated as mineral lands."
The judgment is reversed, and the case remanded to the
Supreme Court of California for further proceedings not
inconsistent with this opinion.
* This reference was no doubt to the Act of September 4, 1841, 5
Stat. 453, c. 16, by which Congress granted to each of certain
states named, and to each new state as it was admitted into the
Union, 500,000 acres of land for purposes of internal improvement,
"the selections in all of said states to be made within their
limits respectively in such manner as the legislatures thereof
shall direct" (§ 8), and to the act be kept as a special deposit to
the credit of the which authorized the issue of land warrants to be
sold, and the proceeds invested in bonds to be kept as a special
deposit to the credit of the "school fund," and which act also
provided that
"the parties purchasing such warrants and their assigns are
hereby authorized in behalf of this state to locate the same upon
any vacant and unappropriated land belonging to the United States
within the State of California subject to such location,"
etc. Laws of California, 1852, p. 41, c. 4.