The withdrawal from sale by the Land Department in March, 1866,
of lands within the indemnity limits of the grants of June 3, 1856,
and May 5, 1864, to the State of Wisconsin to aid in the
construction of a railroad exempted such lands from the operation
of the grant to the Northern Pacific Railroad Company by the Act of
July 2, 1864, though it may be
Page 168 U. S. 605
that a different rule would obtain if the grant to the state had
been of a later date than that to the Northern Pacific Company.
As to place lands, it is settled that in case of conflict, the
title depends on the dates of the grants, and not on the times of
the filing of the maps of definite location.
It is not intended hereby to question the rule that the title to
indemnity lands dates from selection, and not from the grant, but
all here decided is that when a withdrawal of lands within
indemnity limits is made in aid of an earlier land grant, and made
prior to the filing of the map of definite location by a company
having a later grant -- the latter having such words of exception
and limitation as are found in the grant to the plaintiff -- it
operates to except the withdrawn lands from the scope of such later
grant.
The facts in this case are as follows: on June 3, 1856, c. 43,
11 Stat. 20, Congress made a grant to the State of Wisconsin to aid
in the construction of a railroad of every alternate section of
land designated by odd numbers, for six sections in width, on each
side of the line, with the right to select indemnity within
fifteen-mile limits. The line of this road was definitely fixed
September 20, 1858. This grant was enlarged by the Act of May 5,
1864, c. 80, 13 Stat. 66, to one of ten alternate sections on each
side per mile, with indemnity limits extended to twenty miles from
the line of the road. The Chicago, St. Paul, Minneapolis &
Omaha Railway Company, one of the defendants herein, became the
beneficiary of this grant. The road was afterwards constructed, and
the lands in controversy are more than fifteen but less than twenty
miles from the line of definite location and construction. In
March, 1866, the lands within the indemnity limits named in the act
of 1864 were by the Secretary of the Interior withdrawn from sale,
and notice thereof given to the local land officers. This
withdrawal remained unrescinded and unaltered until 1889. In 1883,
the defendant railway company selected the lands in controversy in
lieu of lands lost in its place limits. These selections were
approved by the local land officers, and transmitted to the
Commissioner of the General Land Office for his approval. In the
same year, the State of Wisconsin issued patents for the lands to
that company, which thereafter sold and conveyed them to the
grantor of its co-defendant, the land, logging, and manufacturing
company. On a readjustment
Page 168 U. S. 606
of the land grant, the railway company's title failed, and
thereafter the grantee of the railway company purchased them
pursuant to the Act of March 3, 1887, c. 376, 24 Stat. 556.
On the other hand, the Northern Pacific Railroad Company,
plaintiff and appellant, on July 2, 1864, c. 217, 13 Stat. 365,
367, received a grant from Congress. The third section of the act
making this grant contains this description of the lands
granted:
"Every alternate section of public land . . . to the amount of
twenty alternate sections per mile, on each side of said railroad
line, as said company may adopt, through the territories of the
United States, and ten alternate sections of land per mile, on each
side of said railroad whenever it passes through any state, and
whenever, on the line thereof, the United States have full title,
not reserved, sold, granted, or otherwise appropriated, and free
from preemption, or other claims or rights at the time the line of
said road is definitely fixed, and a plat thereof filed in the
office of the Commissioner of the General Land Office, and
whenever, prior to said time, any of said sections or parts of
sections shall have been granted, sold, reserved, occupied by
homestead settlers, or preempted, or otherwise disposed of, other
lands shall be selected by said company in lieu thereof."
On July 30, 1870, plaintiff fixed the general route of its road,
and filed plats thereof with the Secretary of the Interior. On
August 13, 1870, a withdrawal of the lands within twenty miles of
this route was ordered in aid of the grant. On July 6, 1882,
plaintiff definitely fixed that portion of its line opposite these
lands. They are within the limits of the above-mentioned withdrawal
and also within the place limits of plaintiff's grant as those
limits were adjusted and fixed according to the map of definite
location. Relying upon the title acquired by this grant and the
proceedings had thereunder, as above described, the plaintiff filed
its bill on May 3, 1893, in the Circuit Court of the United States
for the Western District of Wisconsin, to restrain the issue of
patents to the manufacturing company, and to quiet its own title. A
demurrer to this bill was, in May, 1894, sustained, and a
decree
Page 168 U. S. 607
entered dismissing the bill. On appeal to the Court of Appeals
for the Seventh Circuit, this decree was affirmed, 68 F. 993, and
thereupon the plaintiff brought the case to this Court for
review.
MR. JUSTICE BREWER, after stating the facts in the foregoing
language, delivered he opinion of the court.
But a single question is presented in this case, and that is
whether the withdrawal from sale by the Land Department in March,
1866, of lands within the indemnity limits of the grant of 1856 and
1864 exempted such lands from the operation of the grant to the
plaintiff. It will be perceived that the grant in aid of the
defendant railway company was prior in date to that to the
plaintiff, and that before the time of the filing of plaintiff's
maps of general route and definite location, the lands were
withdrawn for the benefit of the defendant. The grant to the
plaintiff was only of lands to which the United States had
"full title, not reserved, sold, granted, or otherwise
appropriated, and free from preemption, or other claims or rights
at the time the line of said road is definitely fixed."
The withdrawal by the secretary in aid of the grant to the State
of Wisconsin was valid, and operated to withdraw the odd-numbered
sections within its limits from disposal by the land officers of
the government under the general land laws. The act of the
secretary was, in effect, a reservation.
Wolcott v.
Des Moines Co., 5 Wall. 681;
Wolsey v.
Chapman, 101 U. S. 755, and
cases cited in the opinion;
Hamblin v. Western Land
Company, 147 U. S. 531, and
cases cited in the opinion. It has also been held that such a
withdrawal is effective against claims arising under subsequent
railroad land grants.
St. Paul & Pacific Railroad v.
Northern Pacific Railroad, 139 U. S. 1,
139 U. S. 17-18;
Wisconsin Central Railroad v. Forsythe, 159 U. S.
46,
159 U. S. 54;
Spencer v. McDougal, 159 U. S. 62.
Page 168 U. S. 608
While it is true that the intent of Congress in respect to a
land grant is to be determined by a consideration of all the
provisions of the statute, and that the word "reserved" may not
always be held to include lands withdrawn for the purpose of
supplying possible deficiencies in some prior land grant, yet, as
that is the ordinary scope of the word, if any narrower or
different meaning is to be attributed to it in this grant, the
reasons therefor must be clear. The use of a word which has
generally received a certain construction raises a presumption that
Congress used it in this grant with that meaning, and it devolves
on the one claiming any other construction to show sufficient
reasons for ascribing to Congress an intent to use it in such
sense. It is said that the phraseology of the various congressional
grants is different, and therefore each one must be considered by
itself. This, in a general way, may be admitted, but at the same
time, the frequent use of a certain word in a particular sense is,
to say the least, very persuasive that it was used in a like sense
in this grant.
But, beyond the significance of the word "reserved" alone, there
are other words in the act which, taken in connection with it, make
it clear that these lands do not fall within the grant. "Otherwise
appropriated" is one term of description, and evidently when the
withdrawal was made in 1866, it was an appropriation of these lands
so far as might be necessary for satisfying that particular grant.
It is true, it was not a final appropriation or an absolute passage
of title to the state or the railway company, for that was
contingent upon things thereafter to happen -- first, the
construction of the road, and second the necessity of resorting to
those lands for supplying deficiencies in the lands in place. Still
it was an appropriation for the purpose of supplying any such
deficiencies. Again, in the description are the words "free from
preemption or other claims or rights." Certainly after this
withdrawal the Wisconsin Company had the right, if its necessities
required by reason of a failure of lands in place, to come into the
indemnity limits and select these lands. Can it be said that they
were free from such right when the very purpose of the withdrawal
was to make possible the exercise of the
Page 168 U. S. 609
right? But the language is not simply "free from rights," but
"free from claims," and surely the defendant railway company had an
existing claim. No one can read this entire description without
being impressed with the fact that Congress meant that only such
lands should pass to the Northern Pacific as were public lands, in
the fullest sense of the term, and free from all reservations and
appropriations and all rights or claims in behalf of any individual
or corporation at the time of the definite location of its road.
Northern Pacific Railroad v. Sanders, 166 U.
S. 620. And such is the general rule in respect to
railroad land grants.
Leavenworth, Lawrence &c. Railroad v. United
States, 92 U. S. 733,
furnishes an apt illustration. In that case, the granting act
contained the provisions:
"That any and all lands heretofore reserved to the United
States, by any act of Congress, or in any other manner by competent
authority, for the purpose of aiding in any object of internal
improvement, or for any other purpose whatsoever be, and the same
are hereby, reserved to the United States from the operation of
this act."
And it was contended that an Indian reservation was not excepted
from the grant because the lands were not reserved to the United
States. Upon this, the Court said (pp.
92 U. S. 741,
92 U. S.
747):
"Congress cannot be supposed to have thereby intended to include
land previously appropriated to another purpose, unless there be an
express declaration to that effect. A special exception of it was
not necessary, because the policy which dictated them confined them
to land which Congress could rightfully bestow, without disturbing
existing relations and producing vexatious conflicts. . . . Every
tract set apart for special uses is reserved to the government to
enable it to enforce them. There is no difference in this respect
whether it be appropriated for Indian or for other purposes."
See also Newhall v. Sanger, 92 U. S.
761, in which it was provided that the grant
"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,"
and it was held that the lands within the boundary of an alleged
Mexican or Spanish
Page 168 U. S. 610
grant which was
sub judice at the time the Secretary of
the Interior ordered a withdrawal of lands were not within the
grant to the company. In
United States v. Southern Pacific
Railroad, 146 U. S. 570,
146 U. S. 606,
it was said:
"Indeed, the intent of Congress in all railroad land grants, as
has been understood and declared by this Court again and again, is
that such grant shall operate at a fixed time, and shall take only
such lands as at that time are public lands."
There is no force in the contention that this construction might
operate to defeat the entire grant to the plaintiff. At the time of
the passage of the act of 1864, only in the vicinity of the
proposed eastern and western termini were there any settlements.
The great bulk of the territory through which the road was to pass
was almost entirely unoccupied. Congress, fixing the time for
commencing and for finishing the work within two and twelve years,
respectively (sec. 8), contemplated promptness in the construction
of the road, intending thereby to open this large unoccupied
territory to settlement. In view of the road's traversing a
comparative wilderness, it made a grant of enormous extent. Within
the unoccupied territory thus to be traversed there were few
settlers, and few, if any, land grants. It knew, therefore, that if
the company proceeded promptly, as required, it would find within
its place limits nearly the full amount of its grant. It must be
presumed that Congress acted and would act in good faith, and of
course there could be no intent to deplete this grant to plaintiff
by subsequent legislation in respect to land grants. On the other
hand, it must be noticed that the grant to the State of Wisconsin
to aid in the construction of the road of the defendant railway
company was prior to that to the plaintiff, and also that prior
thereto, the defendant had filed its map of definite location. In
passing the Act of July 2, 1864, it is therefore reasonable to
suppose that Congress had in mind its earlier grant, and did not
intend that it should be diminished in any manner thereby, but
meant that the defendant railway company should receive either
within its place or indemnity limits the full amount of its lands.
This doubtless was one of the considerations which made the grant
to the Northern Pacific of so large an extent.
Page 168 U. S. 611
It may be well, in concluding this opinion, to again note the
fact, already mentioned, that the withdrawal here considered was
one in favor of an earlier grant. It may be that a different rule
would obtain in case it was in favor of a later grant. As to place
lands, it is settled that in case of conflict, the title depends on
the dates of the grants, and not on the times of the filing of the
maps of definite location. In other words, the earlier grant has
the higher right. No scramble as to the matter of location avails
either road, and it may be that the same thought would operate to
uphold the title to the place lands of an earlier as against a
withdrawal in favor of a later grant. Neither is it intended to
question the rule that the title to indemnity lands dates from
selection, and not from the grant. All that we here hold is that
when a withdrawal of lands within indemnity limits is made in aid
of an earlier land grant, and made prior to the filing of the map
of definite location by a company having a later grant -- the
latter having such words of exception and limitation as are found
in the grant to the plaintiff -- it operates to except the
withdrawn lands from the scope of such later grant.
We see no error in the record, and the decree of the court of
appeals is
Affirmed.
