On the authority of the preceding case,
held that,
where a duly qualified entryman made a
bona fide
settlement upon lands within the indemnity limit of the grant made
by Act of Congress of May 4, 1870, with the intention, whenever the
way was opened by a survey, to enter the lands under the homestead
laws, his rights were superior to those acquired, or that could
have been acquired, by the railroad company under any selection by
it of indemnity lands made after the date of such settlement.
The case is stated in the opinion of the Court.
MR. JUSTICE HARLAN delivered the opinion of the Court.
The controlling question in this case is whether the United
States, in 1893, erroneously issued to the Oregon and California
Railroad Company, which succeeded to the rights of the Oregon
Central Railroad Company, a patent for certain lands in Oregon.
These lands are without the place and within the indemnity
Page 189 U. S. 117
limits of the grant made by the Act of Congress of May 4, 1870,
c. 69, granting lands to aid in the construction of a railroad and
telegraph line from Portland to Astoria and McMinnville, in the
State of Oregon. 16 Stat. 94. The provisions of this act were
substantially the same as those of the Act of July 25, 1866, ,
referred to in
Oregon and California Railroad Company v. United
States, case No. 186, just decided, except that the act of
1870 contains a provision not found in the act of 1866, to-wit:
"That the Commissioner of the General Land Office shall cause the
lands along the line of the said railroad to be surveyed with all
convenient speed."
The line of the proposed road was definitely fixed, and a plat
thereof filed in the office of the Secretary of the Interior.
On the 16th day of February, 1872, the first twenty miles of the
contemplated railroad were completed from Portland to a point near
Forest Grove, in Oregon, and on the 23d of June, 1876, the road to
the Yamhill River, near McMinnville, was completed, but it has
never been constructed to Astoria, Oregon.
The final plat and survey of the township, in which the lands in
dispute are situated, was not filed and approved until July 27,
1893, and on that day the company's list of selections of lands,
which included the lands in question, was duly approved.
Prior to the year 1893, to-wit, on the 12th day of January,
1891, Joseph H. Elison, a duly qualified entryman under the laws of
the United States, settled upon the lands in dispute with the
intention in good faith of "homesteading the same," and since that
date he has continuously resided upon, cultivated, and improved
them, and within ninety days from the date of the filing of the
township plat of survey, he made application for "filing a
homestead" covering these lands.
The selections by the company having been approved by the Land
Department, a patent was issued to the Oregon and California
Railroad Company on October 15, 1895. But it was issued without any
knowledge at the time on the part of the Secretary or the General
Land Office of the adverse claim of Elison arising from his
occupancy of the land.
For the reasons stated in the opinion just delivered in case
Page 189 U. S. 118
No. 186, we hold that, in virtue of Elison's
bona fide
settlement upon the lands in dispute in 1891, with the intention,
whenever the way was open by a survey, to enter the lands under the
homestead laws, his rights were superior to those acquired or that
could have been acquired by the railroad company under any
selection by it of indemnity lands, made after the date of such
settlement. The company's selection did not displace or defeat the
right which the settler acquired by his settlement, made previously
in good faith, with the intention to avail himself of the benefits
of the homestead laws within due time after the lands were
surveyed.
The railroad company rests its claim to have a superior right to
these lands on the ground, in part, of long delay by the
Commissioner of the Land Office in having them surveyed, although
it frequently requested the survey to be made. There is nothing of
substance in this contention. The statute, it is true, required the
lands to be surveyed with all "convenient speed." But the question
as to the precise time the lands should be surveyed was exclusively
for the Land Office to determine, and it was to be determined with
reference to all the facts and circumstances connected with the
surveying of the public lands under the direction of the Land
Department. We cannot say from the record that the Land Office, in
the matter of the surveying of the particular lands here in
dispute, did not act with convenient speed. Besides, the railroad
company accepted the grant of Congress subject to the possibility
of delay in the surveying, as well as to the power of the Land
Office to determine when the lands should be surveyed. The action
or nonaction of the Land Department in such a matter cannot be
controlled by the judiciary, unless perhaps in a case in which it
appeared beyond question that its refusal to order the survey was
merely arbitrary and without any real excuse. It may be that in
such a case the Commissioner could be compelled by judicial process
to discharge the duty imposed upon him by statute. But upon that
point we need not express a decided opinion, for no such case is
presented by the record before us. The allegation in the
defendant's plea is simply that the Commissioner neglected to
perform his duty in the matter of the surveying. But the
Page 189 U. S. 119
facts constituting such alleged neglect are not stated. Besides,
we may observe that, since the right of the settler attached in
virtue of his
bona fide occupancy of these lands before
the railroad company made its selection, that right could not be
displaced by reason of any delay or negligence upon the part of the
Commissioner to cause a survey of the lands. The act contains no
provision that requires a contrary view. The court must determine
the rights of the settler according to the facts as they existed at
the time his occupancy in good faith began. The statute does not
otherwise declare. In that view, as already suggested, the
settler's right was superior to any right acquired by the company
after the date of his occupancy in virtue of its selection of these
lands to supply a deficiency in the place limits.
Upon the authority of the case just decided, the decree of the
circuit court of appeals must be
Affirmed.
MR. JUSTICE BREWER and MR. JUSTICE McKENNA took no part in the
decision of this case.