In a suit brought under the Act of Congress of March 3, 1887, c.
376, to compel the reconveyance of lands covered by patent issued
February 20, 1893, on the ground that it included land to which
there were adverse claims of settlers to the land on which they
respectively resided and which the United States now claimed for
them,
Held:
(1) That, under the land grant acts, the railroad company did
not acquire and could not have acquired an interest in specific
sections of land within the indemnity limits specified in the grant
before their actual and approved selection under the direction of
the Secretary of the Interior, prior to the date of occupancy by
the respective settlers.
(2) No right of the railroad company attaches or can attach to
specific lands within indemnity limits until there is a selection
under the direction or with the approval of the Secretary of the
Interior.
(3) The rights which
bona fide occupancy gave to the
settler under the act of 1866 are not defeated by a mere selection
afterwards of the land by the railroad company -- the settler
having, after the lands were surveyed, promptly taken the necessary
steps to protect his rights under the homestead law. In such case,
the entry made under these laws relates back to the date of the
settlement of the lands.
(4) It cannot be claimed that all the lands within the indemnity
limits were required to supply deficits when there had been no
adjustment and determination of the amount of lieu lands required
prior to his
bona fide occupancy of the land.
The case is stated in the opinion of the Court.
MR. JUSTICE HARLAN delivered the opinion of the Court.
By the Act of Congress of March 3, 1887, c. 376, it was
provided
Page 189 U. S. 104
that, if at the completion of the adjustments of land grants
thereby directed to be made, or sooner, it appeared that lands had
been from any cause erroneously certified or patented to or for any
company claiming by, through, or under grant from the United States
to aid in the construction of a railroad, it should be the duty of
the Secretary of the Interior to thereupon demand from such company
a relinquishment or reconveyance to the United States of all such
lands, whether within granted or indemnity limits; and, if the
company did not reconvey within ninety days after demand made, it
should thereupon be the duty of the Attorney General to commence
and prosecute in the proper courts the necessary proceedings to
cancel the patents, certification, or other evidence of title
theretofore issued for the lands and to restore the title thereof
to the United States. 24 Stat. 556, c. 376.
In
United States v. Missouri &c. Railway,
141 U. S. 360,
141 U. S.
380-382, which was an action brought by the United
States after the passage of the above statute to have certain
patents for land cancelled, this Court, after observing that, as to
some of the lands, the United States appeared to have a direct
interest in them, said:
"As to others, it is under an obligation to claimants under the
homestead and preemption laws to undo the wrong alleged to have
been done by its officers, in violation of law, by removing the
cloud cast upon its title by the patents in question, and thereby
enable it to properly administer these lands and to give clear
title to those whose rights, under those laws, may be superior to
those of the railway company. A suit, therefore, to obtain a decree
annulling the patents in question, so far as it is proper to do so,
was required by the duty the government owed as well to the public
as to the individuals who acquired rights which the patents, if
allowed to stand, may defeat or embarrass."
Reference was made in that case to
United States v. San
Jacinto Tin Co., 125 U. S. 273,
125 U. S. 286,
in which it was held that the United States could sue to set aside
a patent improperly issued where it appeared that there was an
obligation on the part of the United States to the public, or to
any individual, or where it had any interest of its own; also, to
United States v. Beebe, 127 U. S. 338,
127 U. S. 342,
in which it was
Page 189 U. S. 105
held that patents procured by fraud could be cancelled at the
suit of the United States where that was necessary to be done in
order that it might fulfill its obligations to others. The Court
then observed:
"These principles equally apply where patents have been issued
by mistake, and they are specially applicable where, as in the
present case, a multiplicity of suits, each one depending upon the
same facts and upon the same question of law, can be avoided, and
where a comprehensive decree, covering all contested rights, would
accomplish the substantial ends of justice."
See also United States v. Oregon &c. R. Co.,
176 U. S. 28.
In this state of the law, the present suit was brought by the
United States against the Oregon and California Railroad Company in
order to obtain a decree cancelling certain patents for lands
which, it was alleged, had been illegally, and by mistake, issued
in the name of the United States to that company, which succeeded
to the rights of the Oregon Central Railroad Company.
The case was heard upon a stipulation as to evidence, from which
the following facts appear:
By the Act of Congress of July 25, 1866, c. 242, 14 Stat. 239,
the California & Oregon Railroad Company, and such company
organized under the laws of Oregon as the legislature of the latter
state designated, were authorized to locate, construct, and
maintain a railroad and telegraph line between Portland, Oregon,
and the Central Pacific Railroad Company in California.
For the purpose of aiding in the construction of that line,
Congress granted to those companies, their successors and assigns,
every alternate odd-numbered section of public lands, not mineral,
to the amount of twenty sections per mile (ten on each side) of the
railroad line. But the act provided that, when any of the alternate
sections or parts of sections should be found
"to have been granted, sold, reserved, occupied by homestead
settlers, preempted, or otherwise disposed of, other lands,
designated as aforesaid, shall be selected by said companies in
lieu thereof, under the direction of the Secretary of the Interior,
in alternate sections designated by odd numbers, as aforesaid,
nearest
Page 189 U. S. 106
to, and not more than ten miles beyond the limits of, said
first-named alternate sections, and as soon as the said
companies, or either of them, shall file in the office of the
Secretary of the Interior a map of the survey of said railroad, or
any portion thereof, not less than sixty continuous miles from
either terminus, the Secretary of the Interior shall withdraw from
sale public lands herein
granted on each side of said
railroad, so far as located and within the limits before specified.
. . . Settlers under the provisions of the homestead act who comply
with the terms and requirements of said act shall be entitled,
within the limits of said grant, to patents for an amount not
exceeding eighty acres of the land so reserved by the United
States, anything in this act to the contrary notwithstanding."
The Oregon Central Railroad Company was designated by the Oregon
Legislature as the company organized under the laws of Oregon
entitled to receive the granted lands in Oregon and the benefits
and privileges of the above act of 1866.
Prior to October, 1869, that company definitely fixed on the
ground and surveyed the first section of the railroad in Oregon.
That section extended from Portland to Jefferson, and comprised not
less than sixty continuous miles from the northern terminus of the
road, and on October 25, 1869, the company filed in the office of
the Secretary of the Interior, and on January 29, 1870, the
Secretary duly accepted and approved, a map of the survey and
definite location of that section.
During the year 1869 and the months of January and February,
1870, the company definitely fixed on the ground and surveyed the
second section of its road, which section comprised not less than
124 continuous miles from Jefferson, and on March 26, 1870, filed
in the office of the Secretary, and on March 29, 1870, that officer
accepted and approved, a map of the survey and definite location of
that section.
On the 7th of April, 1870, the Commissioner of the General Land
Office, under the direction of the Secretary of the Interior,
withdrew all the odd-numbered sections of land lying within thirty
miles on each side of the railroad (as shown on the map of survey
and definite location, filed with the Secretary on March 26, 1870)
from sale or location, preemption or homestead
Page 189 U. S. 107
entry, and that withdrawal remained continuously thereafter in
force except so far as, if at all, it was affected by an order of
the Secretary made August 15, 1887, revoking the order of April 7,
1870, as to the odd-numbered sections lying within the
indemnity limits of the grant made in 1866, and declaring
the odd-numbered sections lying within such
indemnity
limits to be restored to the public domain, subject to preemption
and homestead entry, as well as to the provisions of the above
grant. The lands so withdrawn April 7, 1870, were within the
jurisdiction of the district local land office at Roseburg, and
notice of such withdrawal was received at that office on April 25,
1870.
During the years 1868 and 1869, and prior to December the 25th,
1869, the Oregon Central Railroad Company constructed and fully
equipped the first twenty miles of the railroad contemplated by the
act of 1866, commencing at Portland and extending along the line
shown upon the map filed in the office of the Secretary of the
Interior on October the 29, 1869. And in the years 1869 and 1870,
and prior to September the 1st, 1870, the above two companies fully
equipped the second twenty miles of the railroad, commencing at the
end of the first constructed twenty miles and extending along the
line shown on the map to a point distant forty miles from the
commencement of the railroad at Portland,-a portion of the second
twenty miles having been constructed by the Oregon Central Railroad
Company, the remainder by the defendant.
The whole line of railroad contemplated by the act of 1866,
commencing at the end of the second constructed twenty miles, was
constructed by the defendant company during the years 1870, 1871,
and 1872, and prior to December the 4th, 1872, the entire line from
Portland to Roseburg was continuously operated for all the purposes
contemplated by Congress.
Commissioners were appointed by the President to examine the
railroad as constructed from Portland to Roseburg. That duty was
performed, and they reported to the President, under oath, that the
railroad between those points had been completed and equipped in
all respects as required, and was ready for the service
contemplated by the act of 1866. Those reports were
Page 189 U. S. 108
duly accepted and approved by the President. The report as to
the seventh, eighth, and ninth sections, including the last
seventy-eight miles of the road from Portland to Roseburg, was made
on July 10, 1878, and the next day was accepted and approved.
The remaining part of the road in Oregon, extending from
Roseburg to the southern boundary of that state, was constructed,
fully equipped, and made ready by the defendant company during the
years 1878 to 1889, inclusive, and all prior to the year 1900. It
was duly examined by commissioners, who reported thereon, and their
reports were accepted and approved.
All the lands described in the bill of complaint are distant
more than twenty miles from, but lie within thirtieth miles on one
side of, the road extending from Jefferson to Roseburg, shown on
the map filed March 26, 1870, and they were all included and
embraced by the withdrawal made by the Secretary on the 7th of
April, 1870.
No part or portion of the lands described in the bill of
complaint are mineral lands, nor are they included by any exception
or reservation from the indemnity land grant in Oregon, made by the
act of 1866, except so far as, if at all, they were excepted or
reserved therefrom by reason of the settlements and facts
hereinafter to be referred to.
On August 16, 1892, all the lands described in the bill were
free and clear for selection by the defendant company as part and
parcel of the indemnity lands granted by the act of Congress,
except so far as, if at all, they were excepted or reserved by
those settlements and facts.
On the 16th of August, 1892, and the 19th of October, 1892, the
defendant company filed with the register and receiver of the
United States land office at Roseburg its several lists selecting
the lands in question as indemnity lands in lieu of lands of equal
area, parts of odd-numbered sections within the primary limits of
the grant made in 1866 and otherwise disposed of by the United
States prior to the passage of that act. Those lists were
accompanied by the fees, costs, and charges required by law, and in
all respects conformed to the directions, rules, regulations, and
requirements of the Secretary of the Interior and of the
Commissioner
Page 189 U. S. 109
of the General Land Office. They were severally approved and
certified by the register and receiver, and the defendant company
had not then, nor has it subsequently, selected or received lands
in lieu of those therein described as the basis of selections by it
made, other than the lands so selected by said lists.
In the following years, the following persons, each being a duly
qualified entryman under the homestead laws of the United States,
settled upon the lands respectively claimed for them in this suit,
to-wit: 1869, Louis [Charles] Heller; 1878, J. R. Peters; 1878,
John Sapp; 1882, George C. Peck; 1883, Uriah W. Wren; 1885, Baxter
W. Jenkins; 1885, Charles E. Barton; 1888, Joseph A. Cox; 1889,
Charles W. Seeley; 1889, John W. Carey; 1890, F. W. Huddleston;
1890, Alfred R. Young; 1890, Abraham M. Peck. Each person made his
settlement with the intention of making a homestead entry of the
lands whenever that could be done under the acts of Congress. After
the date of settlement, each settler continuously resided and made
improvements upon his land in the way of a dwelling house, barn,
outhouses, fencing, clearing, and planting of trees. And on October
27, 1892, within ninety days after the official plat of the survey
of the lands was filed in the United States land office at
Roseburg, each settler, in good faith, filed a formal application
in the land office for a homestead entry of and for the lands upon
which he settled and improved and upon which he continuously
resided after the date of his first occupancy.
On the 20th of February, 1893, the Commissioner of the Land
Office and the Secretary of the Interior having approved the
selections made by the railroad company, a patent was issued
conveying to it all the lands in dispute. But when the company's
lists were approved, neither the Commissioner nor the Secretary had
any knowledge of the adverse claims of the above settlers to the
lands upon which they respectively resided and which the United
States now claims for them.
On the 27th day of October, 1893, the land grant made by the act
of 1866 being still unadjusted, the Commissioner of the Land Office
demanded of the railroad company a reconveyance of the lands
covered by the patent of 1893 upon the ground
Page 189 U. S. 110
that the patent to it had been erroneously issued. The company
refused to reconvey, and claims to be the owner of such lands.
Hence, the present suit to have that patent cancelled.
The circuit court, upon final hearing, found the equities of the
case to be with the United States, and a decree was entered
cancelling the patent issued to the Oregon & California
Railroad Company. That decree was affirmed by the circuit court of
appeals.
1. Some of the questions referred to in argument as bearing upon
the issues presented by the record have been determined by
decisions of this Court rendered since this litigation
commenced.
In
Hewitt v. Schultz, 180 U. S. 139,
which related to the grant of lands made to the Northern Pacific
Railroad Company by the Act of July 2, 1864, c. 217, 13 Stat. 365,
this Court accepted the construction of that act as adopted and
adhered to by the Land Department, and held that the Secretary of
the Interior had no power, simply upon the definite location of the
Northern Pacific Railroad, to withdraw from the operation of the
preemption and homestead laws lands within the indemnity limits of
the road as defined by Congress. Northern Pacific Railroad Co. v.
Miller, 7 L.D. 100, 125; Northern Pacific Railroad Co. v. Davis, 19
L.D. 87, 90. In the present case, the line of the railroad opposite
to which are the lands here in dispute was definitely located in
1870, while (with the exception of one tract, about which the
railroad company makes no question) the lands in dispute were not
settled upon until after that year. We have seen that, upon
acceptance of the map of definite location, the Secretary of the
Interior, according to the stipulated facts, made an order (which
was duly received at the local land office) withdrawing all the
odd-numbered sections within thirty miles on each side of the road
shown on the map of survey and definite location, from sale or
location, preemption or homestead entry. That withdrawal included
the odd-numbered sections in the indemnity limits, within which the
lands in dispute were situated. We hold on the authority of
Hewitt v. Schultz that it was beyond the power of the
Secretary to make such an order in respect of lands within the
indemnity
Page 189 U. S. 111
limits of the grant made by the act of 1866. The reasoning in
that case, touching this proposition, applies to the case now
before us. In 1887, the Secretary, as if to remove the apparent
obstacle placed in the way of preemption and homestead settlers
created by the order of 1870, made an order revoking the previous
one of withdrawal so far as it related to indemnity limits, and
declaring the odd-numbered sections lying within the entire
indemnity limits of the grant restored to the public domain and
subject to preemption and homestead entry, as well as to the
provisions of the act of 1866. We need not discuss here the
question of the power of the Secretary of the Interior to revoke an
order of withdrawal once legally made and notice thereof given at
the local land office. It is sufficient to say that the railroad
company did not, by the order of 1870 relating to lands within the
indemnity limits, acquire an interest in any particular
odd-numbered sections within those limits; nor did that order
prevent the
bona fide occupancy by settlers of
odd-numbered sections
within such limits up to the time of
the approval of selections made by the railroad company of lieu
lands to supply any deficit in the place limits.
In
Nelson v. Northern Pacific Railway, 188 U.
S. 108, it was held that the act of 1864, making a land
grant to the Northern Pacific Railroad Company, and the Act of May
14, 1880, c. 89, for the relief of settlers on the public lands,
recognized the right at any time prior to definite location to
settle upon the unsurveyed public lands embraced by the grant of
1864, notwithstanding there was at the time in existence an order
of withdrawal based only upon a map of general route not issued
pursuant to any express direction of Congress; provided such
settlement was accompanied by residence on the land, in good faith,
with the intention on the part of the settler to avail himself of
the benefits of the homestead law as soon as the lands were
surveyed. This decision rested mainly on the ground that Congress
intended by the act of 1864 to protect the rights of
bona
fide settlers acquired before the railroad company had, by an
accepted map of definite location, obtained a vested interest in
particular odd-numbered sections granted.
Page 189 U. S. 112
These principles are applicable to the present case if, as
contended by the United States, the railroad company did not
acquire, and could not have acquired, an interest in specific
sections of lands within the
indemnity limits before their
actual and approved selection, under the direction of the
Secretary, prior to the date of occupancy by the respective
settlers.
2. We have seen from the stipulated facts that it was not until
1892 that the railroad company made its selection of lands within
the indemnity limits to supply deficiencies in its place or granted
limits. But this occurred after each one of the entrymen whose
rights the government is now seeking to protect had made his
settlement with the intention to follow it up by a
bona
fide entry under the homestead laws. In other words, the lands
were "occupied by homestead settlers" (to use the words of the
granting act of 1866) at the time they were selected by the
railroad company. Now it has long been settled that, while a
railroad company, after its definite location, acquires an interest
in the odd-numbered sections within its place or granted limits --
which interest relates back to the date of the granting act -- the
rule is otherwise as to lands within indemnity limits. As to lands
of the latter class, the company acquires no interest in any
specific sections until a selection is made with the approval of
the Land Department, and then its right relates to the date of the
selection. And nothing stands in the way of a disposition of
indemnity lands, prior to selection, as Congress may choose to
make. In
Ryan v. Railroad Company, 99 U. S.
382, which was a contest as to lands within the
indemnity limits, this Court said:
"It was within the secondary or indemnity territory where that
deficiency was to be supplied. The railroad company had not and
could not have any claim to it until specially selected, as it was,
for that purpose."
And the reason given was that
"when the road was located and the maps were made, the right of
the company to the odd sections first named became
ipso
facto fixed and absolute. With respect to the 'lieu lands,' as
they are called, the right was only a float, and attached to no
specific tracts until the selection was actually made in the manner
prescribed."
In
St. Paul Railroad v. Winona
Railroad, 112
Page 189 U. S. 113
U.S. 720,
112 U. S. 731,
the Court, referring to this principle, said:
"The reason of this is that, as no vested right can attach to
the lands in place -- the odd-numbered sections within six miles on
each side of the road -- until these sections are ascertained and
identified by a legal location of the line of the road, so, in
regard to the lands to be selected within a still larger limit,
their identification cannot be known until the selection is made.
It may be a long time after the line of the road is located before
it is ascertained how many sections or parts of sections within the
primary limits have been lost by sale or preemption. It may be
still longer before a selection is made to supply this loss."
After observing that twenty years expired in that case after the
location of the road before any selection of lieu lands was made,
the Court added:
"Was there a vested right in this company, during all this time,
to have not only these lands, but all the other odd sections within
the twenty-mile limits on each side of the line of the road, await
its pleasure? Had the settlers in that populous region no right to
buy of the government because the company might choose to take
them, or might, after all this delay, find out that they were
necessary to make up deficiencies in other quarters? How long were
such lands to be withheld from market, and withdrawn from taxation,
or forbidden to cultivation?"
To the same effect are the following cases:
Grinnell v.
Railroad, 103 U. S. 739;
Cedar Rapids Railroad v. Herring, 110 U. S.
27;
Kansas Pacific v. Atchison Railroad,
112 U. S. 414,
112 U. S. 421;
Sioux City &c. Railroad v. Chicago &c. Railroad,
117 U. S. 406,
117 U. S. 408;
Barney v. Winona &c. Railroad, 117 U.
S. 228,
117 U. S. 232;
Wisconsin Railroad v. Price County, 133 U.
S. 496,
133 U. S. 508;
Nelson v. Northern Pacific Railway, 188 U.
S. 108. Having regard to the adjudged cases, it is to be
taken as established that, unless otherwise expressly declared by
Congress, no right of the railroad company attaches or can attach
to specific lands within indemnity limits until there is a
selection under the direction, or with the approval, of the
Secretary.
3. But it is contended that, as the selection by the company
(except as to the tract which was occupied in 1869, before any
Page 189 U. S. 114
selection by the company of lieu lands) was prior to the
application by the respective settlers for entry under the
homestead laws, its right to the lands in question was superior to
that asserted by the settlers. This view is completely met by the
fact that the settler, by prior occupancy in good faith, could
avail himself of the homestead acts whenever, by an official
survey, the way is opened by the government for him to do so, and
by the fact that, within ninety days after these lands were
surveyed, he filed in the proper office his application to enter
them under the homestead laws of the United States. He moved with
due diligence to protect and perfect the right acquired by his
occupancy of the land with the intention to avail himself of the
benefit of those laws. That right was not to be affected or
impaired by the fact that the lands were not surveyed at the date
of occupancy.
Nelson v. Northern Pacific Railway, above
cited;
Ard v. Brandon, 156 U. S. 537,
156 U. S. 543;
Tarpey v. Madsen, 178 U. S. 215,
178 U. S. 219.
In the
Ard case the Court said:
"The law deals tenderly with one who, in good faith, goes upon
the public lands with a view of making a home thereon. If he does
all that the statute prescribes as the condition of acquiring
rights, the law protects him in those rights, and does not make
their continued existence depend alone upon the question whether or
no he takes an appeal from an adverse decision of the officers
charged with the duty of acting upon the application."
In the
Tarpey case it, was said that
"the right of one who has actually occupied [public lands] with
an intent to make a homestead or preemption entry cannot be
defeated by the mere lack of a place in which to make a record of
his intent;"
that, if a settler was in possession before definite
location
"with a view of entering it as a homestead or preemption claim,
and was simply deprived of his ability to make his entry or
declaratory statement by the lack of a local land office, he could
undoubtedly, when such office was established, have made his entry
or declaratory statement in such way as to protect his rights."
So if the condition of the lands, being unsurveyed, prevents the
making, by a
bona fide occupant, of a proper application
of record to enter them under the homestead laws, his rights will
not be lost if, after the lands are surveyed,
Page 189 U. S. 115
he applied in due time to enter the lands under those laws. And
such has been held to be the object and effect of the Act of May
14, 1880, c. 89, 21 Stat. 140. We could not otherwise adjudge in
this case without holding that the mere selection of the lands by
the railroad company displaced or destroyed the rights of a
bona fide settler arising from previous occupancy with the
intention of making the required homestead entry whenever he was
permitted to do so. We cannot so hold. We adjudge that the rights
which
bona fide occupancy gave to the settler under the
act of 1866 are not defeated by a mere selection afterwards of the
lands by the railroad company -- the settler having, after the
lands were surveyed, promptly taken the necessary steps to protect
his rights under the homestead laws. And in such case, the entry
made under those laws relates back to the date of settlement on the
lands. It was so substantially held in
Nelson v. Northern
Pacific Railway, above cited.
4. It is also said that all the lands within the indemnity
limits were required to supply the deficit in place limits arising
from the disposition, prior to definite location, by sale and
otherwise, of lands within the granted limits. But the extent to
which lieu lands could be required to supply such deficit in place
lands could not be properly or legally determined until there was
an adjustment of the grant of lands in respect of place limits. In
any event, no such adjustment having taken place prior to the date
of the settler's
bona fide occupancy, his rights, based
upon such occupancy, would not be affected by the fact,
subsequently appearing, in whatever way, that all the odd-numbered
sections within the indemnity limits were needed to supply
deficiencies in place limits. At the time the settler went upon the
land in good faith to make it his home and to perfect his title
under the homestead laws, there was nothing of record that stood in
the way of his right to occupy the lands and to remain thereon
until he could perfect his title by formal entry under the
homestead laws.
Other points were made in the argument of the case, but they
need not be specially noticed, as what we have said requires,
Page 189 U. S. 116
independently of those points, an affirmance of the decree of
the circuit court and the circuit court of appeals.
The decree is
Affirmed.
MR. JUSTICE BREWER and MR. JUSTICE McKENNA took no part in the
decision of this case.