While the two statutes making the Union Pacific Railroad grants
did not double the price of the even numbered sections within the
place limits, yet that was done by the Act of March 6, 1868, c. 20,
15 Stat. 39, and the even numbered sections within the place limits
were from that time not open to selection as indemnity lands.
The act of Congress provides in terms that the sections of land
should be subject to entry only under the homestead and preemption
laws, and the Land Department had no power to turn one of those
sections over to a railroad company.
No title to indemnity lands is vested until an approved
selection has been made; up to which time Congress has full power
to deal with lands in the indemnity limits as it sees fit.
This is not an action to recover the possession of land or to
quiet title thereto, but it is clearly a matter of ordinary
judicial cognizance not excluded therefrom.
The contention that plaintiff in error is an innocent purchaser
for value was not set up as a defense in the state courts.
On May 20, 1899, Monroe D. Herington, the defendant in error,
recovered a judgment in the District Court of Labette County,
Kansas, against Lee Clark for the sum of $3,032.28, which judgment
was affirmed by the Supreme Court of that state on November 10,
1900. Thereupon the case was brought here on writ of error.
The facts are these: the action was one to recover damages for
breach of warranty in the conveyance of a part of section 22,
township 15, range 5, in Morris County, Kansas. The tract was
outside the place and within the indemnity limits of the land grant
made July 26, 1866, 14 Stat. 289, c. 270, to the Union Pacific
Railroad Company, Southern Branch, a corporation whose name was
subsequently changed to Missouri, Kansas & Texas Railroad
Company. The railroad company duly constructed its road, and,
failing to obtain with the place limits the full quota of lands
granted to it, selected, on October 22,
Page 186 U. S. 207
1877, the tract in controversy among others in lieu thereof. At
the time of such selection, the tract was unimproved and without
actual occupation. The selection was approved by the Commissioner
of the General Land Office, but no patent was issued. On September
5, 1884, the railroad company conveyed the land to Lee Clark. He
conveyed by warranty deed. Herington is a subsequent grantee in the
chain of title, and is also the assignee from Clark's immediate
grantee of all his rights under Clark's deed, including the right
to recover damages for any breach of the covenants therein
The tract was in an even-numbered section and within the place
limits of the grant, made by Acts of Congress of date July 1, 1862,
12 Stat. 489, c. 120, and July 2, 1864, 13 Stat. 356, c. 216, to
the Union Pacific Railroad Company, Eastern Division.
On July 21, 1886, the selection by the Missouri, Kansas &
Texas Railroad Company was cancelled by order of the Commissioner
of the General Land Office. Notice of this order was given to the
railroad company, as also time to appeal therefrom, but no appeal
was ever taken. On July 28, 1888, E. M. Cox, who had, on July 31,
1886, taken forcible possession of the land, filed his declaratory
statement claiming settlement. On July 26, 1889, he made final
proof, paid the government price, and received his patent
certificate. Thereafter on October 15, 1890, a patent was issued to
MR. JUSTICE BREWER delivered the opinion of the Court.
The paramount federal question is whether the Missouri, Kansas
& Texas Railroad Company was authorized to select as indemnity
lands in satisfaction of its grant any even-numbered sections
within the place limits of the prior grant to the Union
Page 186 U. S. 208
Pacific Railroad Company. Upon this question, United States
v. Missouri &c. Railway, 141 U. S. 358
cited. The railway company, defendant in that case, is the
successor in interest of the Missouri, Kansas & Texas Railroad
Company. The act making its land grant is the one referred to in
the foregoing statement of facts as made July 26, 1866. 14 Stat.
289, c. 270. It claimed, under the authority of that act, the right
to take as indemnity lands even-numbered sections within the place
limits of what is known as the Leavenworth road, in whose benefit a
grant was made March 3, 1863. 12 Stat. 772. The court held against
this claim, saying (p. 141 U. S.
"Now it is clear that the even-numbered sections, within the
place limits of the Leavenworth road, were reserved by the act of
1863 for purposes distinctly declared by Congress, and which might
be wholly defeated if the Missouri-Kansas company were permitted to
take them as indemnity lands under the act of 1866. The requirement
in the second section of the act of 1863 that the 'reserved
sections' which 'remained to the United States' within ten miles on
each side of the Leavenworth road 'shall not be sold for less than
double the minimum price of the public lands when sold,' nor be
subject to sale at private entry until they had been offered at
public sale to the highest bidder at or above the increased minimum
price, the privilege given to actual bona fide
under the preemption and homestead laws to purchase those
at the increased minimum price, after due proof of
settlement, improvement, cultivation, and occupancy, and the right
accorded to settlers on such sections under the homestead laws,
improving, occupying, and cultivating the same, to have patents for
not exceeding eighty acres each, are inconsistent with the theory
that the even
-numbered sections, so remaining to the
United States, within the place limits of the Leavenworth road
could be taken as indemnity
lands for a railroad
While the two statutes making the Union Pacific railroad grants
did not double the price of the even-numbered sections within the
place limits, yet that was done by the Act of March 6, 1868, 15
Stat. 39, c. 20, which in terms provided
"that such sections shall be rated at two dollars and fifty
cents per acre, and subject
Page 186 U. S. 209
only to entry under those (the preemption and homestead)
The even-numbered sections within the place limits of the Union
Pacific railroad grants were from that time therefore not open to
selection as indemnity lands. It is true that this statute was not
passed until after the grant to the Missouri, Kansas & Texas
Railroad Company, nor until after it had filed its map of definite
location with the Secretary of the Interior, which appears from an
agreed statement of facts to have been on January 7, 1868, but it
was passed before the completed construction of the railroad and
long before the selection made by the company, and it is familiar
law that no title to indemnity lands is vested until an approved
selection has been made, and that, up to such time, Congress has
full power to deal with lands in the indemnity limits as it sees
fit. As said in Kansas Pacific Railroad v. Atchison
Railroad, 112 U. S. 414
112 U. S. 421
"Until selection was made, the title remained in the government,
subject to its disposal at its pleasure." See also Ryan v.
Railroad Company, 99 U. S. 382
Grinnel v. Railroad Company, 103 U.
; Cedar Rapids &c. Railroad v.
Herring, 110 U. S. 27
St. Paul Railroad v. Winona Railroad, 112 U.
, 112 U. S. 731
Barney v. Winona &c. Railroad, 117 U.
, 117 U. S. 232
Sioux City Railroad v. Chicago Railway, 117 U.
, 117 U. S. 408
Wisconsin Railroad v. Price County, 133 U.
, 133 U. S. 511
United States v. Missouri &c. Railway, 141 U.
, 141 U. S. 375
Hewitt v. Shultz, 180 U. S. 139
Southern Pacific Railroad Company v. Bell, 183 U.
It is contended by plaintiff in error that the selection by the
railroad company, when approved by the Land Department, operated to
convey the title as effectively as would a patent to it therefor;
that the even-numbered sections within the place limits, although
double minimum lands, were public lands, and within the
jurisdiction of the Land Department, and that hence the approval of
the selection by the Land Department, even if erroneous, operated
to vest the title in the company. But this is a mistake. The act of
Congress provided in terms that such sections should be subject
only to entry under the homestead and preemption laws, and the Land
Department had no more power to turn one of those sections over to
a railroad company
Page 186 U. S. 210
than it had to grant lands in a military or Indian reservation.
While the lands were within the jurisdiction of the Land Department
for some purposes, they were not for all. The mode of their
disposal was limited, and the Land Department had no authority to
ignore that limited mode and dispose of them in any other way. This
general doctrine as to the limitation of the powers of the Land
Department has been affirmed by this Court in many cases and under
different circumstances. Wilcox v.
13 Pet. 498; United
States v. Stone,
2 Wall. 525.
It is further contended that it was not within the power of the
Land Department to cancel the selection by the company, after the
conveyance of the land by the company, without notice to all the
transferees, and in support thereof, Cornelius v. Kessel,
128 U. S. 456
Michigan Land & Lumber Co. v. Rust, 168 U.
, and Hawley v. Diller, 178 U.
, are cited. It is undoubtedly true, as held in
those cases and others, that, while the Land Department has full
jurisdiction over the disposition of public lands -- a jurisdiction
which may be exercised until the passing of the legal title by the
issue of a patent or otherwise -- yet such jurisdiction cannot be
exercised so as to destroy any equitable rights without notice to
the claimants thereof. While that is true, the courts are not
thereby debarred from an inquiry into and a determination of the
validity of any equitable title. They do not assume any direct
appellate jurisdiction over the rulings of the Land Department, and
they accept the findings of that department as conclusive upon
questions of fact. Shepley v. Cowan, 91 U. S.
; Quinby v. Conlan, 104 U.
. But, notwithstanding this, prior to the issue of
any patent, a party may have rights in the land of one kind or
another which courts will enforce. Thus, where the full equitable
title to land has passed from the government to an individual, the
land is subject to state taxation, although no patent has issued.
3 How. 441; Witherspoon v.
4 Wall. 210. Where, prior to the issue of a
patent, land in possession of an individual is sought to be charged
with state taxes, he may contest in the courts the liability of the
land therefor on the ground that full equitable title has not
passed to him, or that something yet remains to be done before
Page 186 U. S. 211
the rights of the government are ended. Railway
Company v. Prescott,
16 Wall. 603; Railroad
Company v. McShane,
22 Wall. 44.
Again, even before the acquiring of even an equitable title to
the land as against the government, contracts made by actual
settlers concerning their possessory rights and the title hoped to
be acquired from the United States may be valid as between the
parties thereto, and enforced in the courts. Lamb v.
18 Wall. 307; Stark v. Starr,
94 U. S. 477
Again, it is a well known fact that many agricultural lands and
many mining claims are held by their owners with only final
receipts from the government and without the issue of any patent.
Yet the rights which accompany title are exercised by the parties
and enforced by the courts. It will be noticed that this is not an
action to recover the possession of any land, or one to quiet the
title thereto. It is simply an action to recover damages for the
breach of a contract in respect to the land, and the decision, in
no respect controlling the action of the officers of the Land
Department, is simply a determination of the rights which the
parties have acquired by proceeding in the Land Department. This is
clearly a matter of ordinary judicial cognizance, and one which by
no statute of Congress or rule of the common law is excluded from
such cognizance. Garland v. Wynn,
20 How. 6; Monroe Cattle Company v. Becker, 147 U. S.
, 147 U. S. 57
Turner v. Sawyer, 150 U. S. 578
A final contention in this matter is that the plaintiff in error
is an innocent purchaser for value, and that therefore he and his
grantees are entitled to be protected in their title by virtue of
the Act of March 3, 1887, 24 Stat. 556, c. 376, and March 2, 1896,
29 Stat. 42, c. 39. It is a sufficient answer to this contention
that this defense was not set up in the state courts, and that it
does not appear anywhere in the record that Clark, to whom the
railroad company conveyed, or any subsequent grantee in the chain
of title, was a citizen of the United States or had declared his
intention to become a citizen, and hence the act of 1887, which
purports to confirm alone the titles of citizens or those who have
declared their intention to become citizens, has no
Page 186 U. S. 212
application; that the act of 1896 also has no application,
because that refers only to cases of lands patented or certified,
and the confirmations of lands acquired by deed or contract from
the party holding the patent or certificate, and here the railroad
company never received any patent or certificate. In addition,
prior to the passage of the act, a patent had been issued to Cox,
and his title thus fully confirmed.
These considerations dispose of the only federal question
presented in the record, and, there appearing no error, the
judgment of the Supreme Court of Kansas is affirmed.
MR. JUSTICE GRAY took no part in the decision of this case.