Southern Pacific Railroad v. United States, No. 1,
ante, p.
200 U. S. 341,
followed as to the power of the court to maintain this suit in
equity and as to the validity of the acts of Congress of 1887 and
1896 for the adjustment of railroad land grants.
Held also
that:
Lands which at the time a railroad grant attached by the filing
and approval of the map of definite location were within the
claimed but undetermined limits of a Mexican grant did not pass to
the railroad company although within the place limits of its grant,
and this notwithstanding the fact that, by the final survey and
patent they were excluded from the Mexican grant.
A survey of the Mexican grant made by the proper officers at the
instance of the applicant and before the railroad grant attached
included the disputed lands. The applicant did not repudiate the
survey, but sought a patent based upon it. It was in legal effect
his claim to the lands. The government, not questioning the right
to have such a survey at the time it was applied for and made,
ordered a resurvey on the ground that the boundaries shown in the
first survey were incorrect. The second survey was made after the
railroad grant attached and excluded the lands.
Held that
the lands were
sub judice at the time the railroad grant
attached, and were not included within it.
This case, in which, on February 28, 1901, the United States
filed its bill in the Circuit Court for the Southern District of
California, resembles the one immediately preceding in that it was
a suit to cancel certain patents erroneously issued to the Southern
Pacific Railroad Company and to quiet the title of the government
to the lands mentioned therein; to confirm the title of certain
other lands erroneously patented to the company and by it conveyed
to
bona fide purchasers, and to obtain an accounting and
recovery from the company of the value of the lands so conveyed to
bona fide purchasers. By the decree, the full relief asked
-- cancellation, confirmation, and recovery -- was granted. The
question presented is different in that the railroad company denies
that the patents were erroneously issued. The lands were within the
place limits of the railroad company's grant, but the plaintiff
contends that they
Page 200 U. S. 355
were excluded from the grant because within the claimed and
undetermined limits of a Mexican land grant.
In 1838, one Juan Bandini received from the Mexican government a
grant of what is termed the Jurupa ranch. After California was
acquired under the treaty of Guadalupe Hidalgo, and on September
25, 1852, Bandini presented his petition to the commissioners
appointed under the Act of Congress of March 3, 1851, 9 Stat. 631,
asking confirmation of his title, and on October 17, 1854, it was
confirmed, the order of confirmation describing the boundaries of
the rancho in substantially the language of the act of juridical
possession.
An appeal was taken to the District Court of the United States
for the Southern District of California, as authorized by the
statute, which court, on April 5, 1861, sustained the action of the
commissioners. The boundaries of the grant were thus described:
"The said boundaries being as follows: commencing at the foot of
a small hill, standing alone at the canada which the Messrs. Yorba
recognize as their boundary on the further side of the river of
Jurupa, which hill the Indians in their tongue call 'Pachappa,'
which was taken for a landmark, placing on it certain stones on top
of others; thence course westerly along the bank of the said river
thirty thousand varas to the point of the same table land on which
Mr. Bandini had established his house, and where the said river
makes a bend, where a stake was driven for a landmark; thence
northerly, fronting towards the mountains of Cucamonga, seven
thousand varas, passing between the two springs of Guspar, ending
at the first white sand bank which there is on said course towards
Cucamonga; thence easterly the same thirty thousand varas to a
small lone mountain on the left hand of the high road going from
San Gabriel to San Bernardino, called by the Indians 'Catalmacay,'
and which was designated as a landmark; thence southerly seven
thousand varas to the point of beginning at the foot of the small
hill called 'Pachappa,' which makes a corner east, west. "
Page 200 U. S. 356
The confirmation was made in the name of Abel Stearns, a
purchaser pending the proceedings, and substituted of record for
the original petitioner. On January 14, 1869, the Surveyor General
of California, on application of the claimant and deposit by him of
the estimated cost thereof, directed a survey of the rancho. This
was made, and on February 26, 1872, the survey and field notes were
filed in the office of the Surveyor General of California, and by
him approved. On May 13, 1876, the Commissioner of the General Land
Office at Washington directed a correction of some alleged errors
in this survey. On appeal from this order, the Secretary of the
Interior, on February 21, 1877, ordered a resurvey. This was made,
and on May 23, 1879, a patent was issued conforming to such
resurvey. The lands in dispute are within the limits of the first
but outside those of the second survey, and are not included in the
patent.
On May 1, 1862, an appeal to this Court was prayed and allowed
in the District Court of California. On January 8, 1875, an order
was here entered which, after stating that an appeal had been
allowed by the district court, as shown by an inspection of the
certificate of the clerk of that court, recites:
"And whereas, in the present term of October, in the year of our
Lord one thousand eight hundred and seventy-four, the said cause
came on to be heard before the said Supreme Court, and it appearing
that the said appellant has failed to have its cause filed and
docketed in conformity to the rules of this Court, it is now here
ordered, adjudged, and decreed by this Court that this appeal from
the District Court of the United States for the District of
California be, and the same is hereby, docketed and dismissed."
Upon these facts, a decree in favor of the plaintiff was entered
by the circuit court, June 15, 1903 (123 F. 1007), which was
affirmed by the circuit court of appeals on October 17, 1904 (133
F. 662), and thereupon this appeal was taken.
Page 200 U. S. 357
MR. JUSTICE BREWER delivered the opinion of the Court.
The single question is whether these lands were, between the
dates of the two surveys,
sub judice, and therefore not
passing under the grant to the railroad company. The map of
definite location was filed and approved in 1874, and at that time,
which was between the dates of the two surveys, the grant took
effect. The description of the lands in the Mexican grant and in
the decree of confirmation was not in the language of the United
States land legislation, by section, township, and range, nor was
it such that, without a survey, the exact boundaries could be
determined. No one could say from reading this description whether
the true north boundary was shown by the first or the second
survey. The regular land surveys made by the government,
establishing section, township, and range lines, would not locate
the boundaries of the grant, nor would they identify either of
those lines with any particular boundary. There was that generality
of description which required a special survey to locate the grant.
It is said that the patentee never claimed the land north of the
boundary line established by the second survey, and therefore that
it was in no just sense
sub judice. But, the boundaries
being uncertain, he applied to the department authorized by
Congress to determine them. It acted upon his application, and, by
its survey, located the boundaries. He made no challenge of its
action, but, so far as the record shows, was content therewith.
While a new survey was subsequently ordered, it was not at his
instance. So, at least until the first survey was set aside, it was
the measure of his claim, and the lands within the boundaries
established by it were
sub judice. No affirmative
declaration that he insisted
Page 200 U. S. 358
upon his right to them was essential to make them a part of his
claims.
But the special contention of the appellants is that the first
survey was without any authority of law because the statute
provides that, upon final confirmation of the claim, a survey may
be ordered, and it is insisted that there was no final confirmation
until the order made by this Court in 1875; that, although the
confirmation by the district court was in 1861, yet an appeal was
allowed which transferred the case to this Court, and held the
question of confirmation in abeyance until the order here made in
1875. The state (sec. 13) provides:
". . . And for all claims finally confirmed by the said
commissioners, or by the said district or supreme court, a patent
shall issue to the claimant upon his presenting to the General Land
Office an authentic certificate of such confirmation, and a plat or
survey of the said land, duly certified and approved by the
Surveyor General of California, whose duty it shall be to cause all
private claims which shall be finally confirmed to be accurately
surveyed, and to furnish plats of the same."
Hence, it is contended that the entire proceedings under the
first survey were void, and may be put out of consideration in
determining whether the lands were
sub judice. But this
ignores the fact that, anterior to the first survey, the United
States had practically abandoned its appeal from the order of the
district court. It had for ten years failed to file any transcript
in this Court, and the petitioner had been entitled to the formal
entry of docket and dismissal which he obtained in 1875 -- an entry
implying an abandoned appeal, and made to place that fact upon
record. The government, which was the party interested against the
petitioner, and the party taking the appeal, did not, when the
application was made in 1869 to the Surveyor General of California,
question the right to a survey. It did not suggest that there had
been no final order of confirmation, nor has it at any time raised
any question of the right to that survey, and the Land Department
ordered
Page 200 U. S. 359
the second only upon a doubt of the accuracy of the first. It
does not lie within the mouth of a third party to say that the
government had a right to appeal, could have insisted on that
right, and could have objected to the first survey on the ground of
a failure to obtain a final order of confirmation. It is enough
that the government recognized that it had abandoned its appeal,
and was willing that proceedings should be taken looking to a
survey and patent. Nor were the proceedings so absolutely void that
it can be said that no claim was pending. The surveyor general was
the official of the government, placed in charge of surveys, who,
on application, was to determine whether the conditions had arisen
which justified him in acting. If he decided erroneously his action
could be set aside on review, but it was not a nullity. Even
between individuals, if one brings a suit in a federal court to
quiet his title to a tract of land, and obtains a decree in
accordance with his bill, and on appeal this Court sets aside the
decree and orders the suit to be dismissed for lack of proper
allegations in respect to divers citizenship -- while it may be
that the proceedings are ineffectual to determine the title, yet,
can it be said that no suit was pending, no claim was made? Put the
question in another aspect: suppose no challenge of the first
survey had been made, and the Land Department, acting on that
survey, had caused a patent to be issued -- could the government
obtain a decree setting it aside upon that showing alone, and
without a disclosure of equities? In
Williams v. United
States, 138 U. S. 514, and
Germania Iron Co. v. United States, 165 U.
S. 379, something more than premature action in
certificate and patent was shown -- something which presented an
equity entitling the United States to maintain its suit for
cancellation.
Another matter -- at the time the map of definite location was
filed and approved, this first survey had been made and approved by
the Surveyor General of California, and by that survey the lands in
dispute were included within the Mexican grant. The railroad
company therefore took title to its land grant with this fact
apparent on the records of the Land Department.
Page 200 U. S. 360
In an early case in this Court,
Kansas Pacific Railway
Company v. Dunmeyer, 113 U. S. 629, in
which the question of the relative rights of railroads to granted
lands and individuals claiming rights to separate tracts within the
place limits was presented, we said (p.
113 U. S.
641):
"It is not conceivable that Congress intended to place these
parties as contestants for the land, with the right in each to
require proof from the other of complete performance of its
obligation. Least of all is to be supposed that it was intended to
raises up, in antagonism to all the actual settlers on the soil
whom it had invited to its occupation, this great corporation, with
an interest to defeat their claims, and to come between them and
the government as to the performance of their obligations."
"The reasonable purpose of the government undoubtedly is that
which is expressed; namely, while we are giving liberally to the
railroad company, we do not give any lands we have already sold, or
to which, according to our laws, we have permitted a preemption or
homestead right to attach. No right to such land passed by this
grant."
And this proposition has been repeatedly reaffirmed in later
cases.
Hastings & Dakota Railroad Company v. Whitney,
132 U. S. 357;
Sioux City &c. Land Company v. Griffey, 143 U. S.
32;
Whitney v. Taylor, 158 U. S.
85.
One thing more; it appears from a stipulation of counsel that
within the indemnity limits of the grant to the Southern Pacific
Railroad there remain more than 50,000 acres of surveyed public
lands for which there has been no selection or application to
select by the company. So that there is no such equity in favor of
the company as was suggested in the case of
United States v.
Winona &c. Railroad Company, 165 U.
S. 463,
165 U. S. 482.
The decree of the court of appeals is
Affirmed.
