By the Act of July 2, 1864, c. 217, a grant of public land was
made to the Northern Pacific Railroad Company to aid in the
construction of its railroad and telegraph line. A small tract of
this grant is the subject of this action of ejectment. In October,
1868, one Scott made a preemption declaratory statement regarding
this tract, and settled upon it in 1869, but abandoned it in the
same year and never returned. In October, 1872, he filed an amended
statement excluding the land in controversy. On February 21, 1872,
the company filed its map of general route through Montana. On the
22d of April, 1872, the Commissioner of the General Land Office, by
direction of the Secretary of the Interior, transmitted to the
local land office in Montana a diagram showing the location of the
road in the district in which the subject of controversy was
situated, and directed the withholding from sale or location,
preemption or homestead entry, of the odd-numbered sections within
forty miles of the general route of the railroad. On May 3, 1872,
McLean, a citizen of the United States, duly qualified to enter
land, made a homestead entry of the tract in controversy in this
case. On May 6, 1872, the diagram and order sent April 22 were
received at the local land office and filed there. In the autumn of
1872, McLean placed a small building on the land in which he spent
his nights until the spring of 1873, when he removed and never
after resided there or made improvements. Proceedings were taken to
cancel his entry, and it was cancelled in September, 1879. In July,
1882, the plat of definite location was filed, and the land in
controversy is within forty miles of the general route, and within
twenty miles of the line of definite location. In August, 1882,
McLean died, leaving a will devising this land to his widow, which
was duly probated. In March, 1883, McLean's widow applied, as his
widow under the Act of June 15, 1880, c. 227, 21 Stat. 237, to
purchase the tract.
Held:
(1) That whatever rights Scott might have acquired by his
original declaratory statement, were lost by his amended
declaratory statement.
(2) That McLean had all the rights which attached to a valid
entry, and might have proceeded under the Act of June 15, 1880, c.
227, 21 Stat. 237, to make the purchase thereby authorized.
(3) That his widow, having had this tract devised to her by her
husband's will, duly probated, was entitled to purchase the tract
as the devisee of her husband, although her application for it was
made as his widow.
Page 175 U. S. 565
This was an action of ejectment commenced on May 8, 1891, in the
Circuit Court of the United States for the District of Montana by
the railroad company, plaintiff in error to recover possession of
the south one-half of the northwest one quarter of section 17,
township 10 north, range 3 west of the principal meridian of
Montana. A trial was had which resulted in a judgment for the
plaintiff. 53 F. 48. This judgment was reversed by the Court of
Appeals for the Ninth Circuit, 58 F. 850, and the case remanded for
a new trial. The new trial was had before the circuit court upon an
agreed statement of facts, and resulted in a judgment for the
defendants, which judgment was affirmed by the court of appeals,
and thereupon the plaintiff sued out this writ of error.
The important facts are these: on February 21, 1872, the
railroad company filed in the office of the Commissioner of the
General Land Office its map of general route through the then
Territory (now state) of Montana. On April 22, 1872, the
Commissioner, by direction of the Secretary of the Interior,
transmitted to the local land office in Montana a diagram showing
the portion of the line of general route extending through that
district, and directed the withholding from sale or location
preemption or homestead entry, the odd-numbered sections within
forty miles of such general route. This diagram and order were
received and filed in the local office on May 6, 1872. On May 3,
1872, three days before the order was received at the local land
office, William McLean, a citizen of the United States and duly
qualified to enter the land, made a homestead entry on the tract in
controversy. In that fall, he moved a small building onto the land
and spent his nights there until the spring of 1873, when he
married, removed from the premises, and never thereafter resided or
made any improvements thereon. Proceedings were taken to cancel his
homestead entry, and upon September 11, 1879, it was cancelled. On
July 6, 1882, the railroad company filed a plat of the definite
location of that portion of its line adjacent to the premises, and
thereafter duly constructed its road on that line. The land is
within forty miles of the line of general route, and also within
twenty miles of the line of definite location and
Page 175 U. S. 566
construction. McLean died in August, 1882, leaving a will by
which he devised the tract to his widow. This will was duly
admitted to probate.
On April 21, 1876, Congress passed an act, 19 Stat. 35, c. 72,
the first section of which is --
"SEC 1. That all preemption and homestead entries, or entries in
compliance with any law of the United States, of the public lands,
made in good faith, by actual settlers, upon tracts of land of not
more than one hundred and sixty acres each, within the limits of
any land grant, prior to the time when notice of the withdrawal of
the lands embraced in such grant was received at the local land
office of the district in which such lands are situated, or after
their restoration to market by order of the General Land Office,
and where the preemption and homestead laws have been complied
with, and proper proofs thereof have been made by the parties
holding such tracts or parcels, they shall be confirmed, and
patents for the same shall issue to the parties entitled
thereto."
And on June 15, 1880, it passed another act, 21 Stat. 237, c.
227, the second section of which is --
"That persons who have heretofore under any of the homestead
laws entered lands properly subject to such entry, or persons to
whom the right of those having so entered for homesteads, may have
been attempted to be transferred by
bona fide instrument
in writing, may entitle themselves to said lands by paying the
government price therefor, and in no case less than one dollar and
twenty-five cents per acre, and the amount heretofore paid the
government upon said lands shall be taken as part payment of said
price:
Provided, this shall in nowise interfere with the
rights or claims of others who may have subsequently entered such
lands under the homestead laws."
On March 15, 1883, the widow of William McLean applied under
this last act for the purchase of the tract. Her application was
made as widow, and not by virtue of any right given by the will of
her husband. Her application was contested by the railroad company,
but sustained by the Commissioner of the General Land Office, and
afterwards by the
Page 175 U. S. 567
Secretary of the Interior, and on his decision a patent was duly
issued to her. Whereupon this suit was brought to test the title
conveyed by such patent.
MR. JUSTICE BREWER delivered the opinion of the Court.
The contest in this case is between one claiming under a
homestead entry and a company claiming under a grant in aid of a
railroad. It was long ago said by this Court that
"the policy of the federal government in favor of settlers upon
public lands has been liberal. It recognizes their superior equity
to become the purchasers of a limited extent of land, comprehending
their improvements, over that of any other person,"
Clements v.
Warner, 24 How. 394,
65 U. S. 397,
and in a later case that "the law deals tenderly with one who, in
good faith, goes upon the public lands with a view of making a home
thereon."
Ard v. Brandon, 156 U.
S. 537,
156 U. S.
543.
There is no real hardship in enforcing this rule, for if the
individual seeking to maintain his homestead entry fails by reason
of any defect, he has no recourse on the government for the fees he
has paid or for any compensation for the time and labor he has
expended, while, on the other hand, the general provision of
railroad land grants is to the effect that if the title to any
tract within the place limits fails, the company may reimburse
itself by a selection within the indemnity limits. It is not
therefore strange that the rulings of the land department, as well
as of the courts, have been uniformly favorable to the individual
contesting with a railroad company the right to a particular tract
of land.
Yet this would never justify an ignoring of the clear rights of
the company, for the purpose of Congress in the grant must be
recognized and made effective in every case to which the grant
applies.
Page 175 U. S. 568
On October 5, 1868, and prior to the filing of the map of
general route, there was, as appears from the agreed statement, a
preemption declaratory statement made by William M. Scott. In 1869,
he settled upon the tract, built a house, and resided in it, but in
the fall of that year abandoned the land, moved to Helena, and
never returned. On October 14, 1872, he filed an amended preemption
declaratory statement wholly excluding the land in controversy and
substituting other land. Whatever right Scott may have acquired by
his original declaratory statement was clearly lost by his amended
declaratory statement. Indeed, it had undoubtedly lapsed long
before.
Northern Pacific Railway v. De Lacey, 174 U.
S. 622.
We need, therefore, only concern ourselves with the action of
McLean. He did not make his homestead entry prior to the filing of
the map of general route, but did before notice thereof was
received in the local land office, and it is not disputed by
counsel for the railroad company that if he had perfected that
entry, the act of 1876 would have operated to confirm his title.
But the contention is that the act only applies when, as it
reads,
"the preemption and homestead laws have been complied with, and
proper proofs thereof have been made by the parties holding such
tracts or parcels,"
and it is urged that, as the agreed statement shows that McLean
abandoned the land in 1873 and thereafter never complied with the
requirements of the homestead law, he was not in a condition to
claim any right to the land, because, under the law in force at the
time he made his original entry, the land was not subject to entry,
Buttz v. Northern Pacific Railroad, 119 U. S.
55,
119 U. S. 72,
and he could claim nothing under the act of 1876, because he did
not comply with the homestead laws or file proper proofs of any
compliance therewith. In other words, it is said that the land was
not subject to homestead entry when he entered it, and that his
entry was not made valid by the act of 1876, and therefore that the
act of 1880 has no application to this case.
The writer of this opinion is much impressed with the force of
these contentions, but a majority of the Court hold that
Page 175 U. S. 569
they give too much force to the letter of the statutes, and do
not carry out their real spirit. They are of opinion that the
effect of the act of 1876 was to validate all otherwise regular
preemption and homestead entries made prior to the time when the
notice of the withdrawal was received at the local land office,
although such entries were made after the time when the map of
general route was filed in the office of the Secretary of the
Interior and the order of withdrawal made; that the withdrawal
authorized by the sixth section of the act making the land grant to
the Northern Pacific Railway Company (13 Stat. 365, 369) did not
vest in the company any title to the lands within the withdrawal
limits, but only operated by legislative declaration and subsequent
executive action to withdraw those lands from homestead or
preemption entries; that the right of the railroad company to any
tract only became vested when the line of definite location was
filed, and that up to that time, Congress had full power to order a
cancellation of the withdrawal or to make any disposition of lands
within those limits which it saw fit, and that this act of 1876,
rightfully construed and in accordance with the spirit of
congressional dealings with individual homesteaders and preemptors,
is to be taken as a legislative enactment that no entry was to be
considered invalidated by reason of the filing of the map of
general route if it was made before notice of the withdrawal was
received at the local land office. If this be the true construction
of this act, then McLean had all the rights which attached to a
valid entry, and might have proceeded under the act of 1880 to make
the purchase thereby authorized.
Before, however, the act of 1880 was passed, his entry had been
cancelled by reason of a failure to comply with the requirements of
the homestead law in occupation, proofs, and payment of the final
fees. Indeed, he could not have made the proofs, because he had
abandoned the land. But the act of 1880 was passed before the
railroad was definitely located adjacent to this land, and it was
the opinion of the circuit court of appeals, which is approved by a
majority of this Court, that its effect was to except the tract
from the grant
Page 175 U. S. 570
to the Northern Pacific. That grant was of land to which
"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."
Counsel for the railroad company contend that this right of
McLean to purchase this tract was no other or different than the
right of any duly qualified citizen of the United States to
purchase any tract of public lands, and that, as this right had not
been exercised at the time the line of definite location was fixed,
it could not be said that at that time any right had attached. But
we think it is not a true construction of the land laws that a
specified right given to a limited class to take by purchase
particular tracts is in any just sense the equivalent of the
general right of all citizens to purchase public lands. It is not a
strained, but a reasonable, construction to hold that Congress, by
this act of 1880, "appropriated" these particular tracts, thus
covered by homestead entries, even of an outlawed class, for the
benefit of those homesteaders, and that they were no longer to be
counted among the public lands of the United States subject to the
grant to the railroad company.
One other question is presented by counsel for plaintiff in
error. The right given by the act of 1880 is to the entrymen and
persons to whom their rights have been transferred by "
bona
fide instruments in writing." It is contended that a widow
cannot avail herself of the benefit of that statute, because she
does not take by any
bona fide instrument in writing.
It is true that the application to the land office upon which
the patent was issued was based upon her right as widow, and it may
be questionable whether a widow is within the scope of that act;
but the agreed statement of facts shows that McLean by will devised
this tract to her, and that the will was duly probated, so that she
held a right not simply as widow, but as devisee taking under a
bona fide instrument in writing, and it certainly cannot
operate to defeat her right under that instrument that the land
department recognized her right as widow.
For these reasons, the judgment of the circuit court of appeals
is
Affirmed.
