Under the Atlantic & Pacific Railroad Company land grant Act
of July 27, 1866, title to land within the place limits passed to
the company on the completion of the road without any selection or
approval thereof by the Secretary of the Interior unless the tract
was within the classes excepted by the act.
The two-year limitation in § 2941, Rev.Stat. Arizona, relates
only to a plaintiff showing no better right than the defendant in
possession, and does not give to a mere occupant of public land a
title by prescription against one subsequently acquiring title from
the United States.
Rev.Stat., § 891 determines the question of competency of the
public records therein referred to, but not that of their
materiality, and in this case, certain certified copies of records
and papers in the General Land Office were held competent evidence,
and, although some may not have been material, the judgment will
not be disturbed in the absence of any prejudice to appellant.
Section 1 of § 3199 Arizona Rev.Stat. 1887, declaring all
rivers, creeks and streams of running water in the territory to be
public, does not apply to percolating water oozing through the
soil. Whether the section applies to an actual subterranean stream
undecided.
This action was commenced on July 13, 1898, in the District
Court of Coconino County, Arizona, to recover possession of a
quarter section of land, together with damages for its detention.
The defendant, in addition to the denials in his answer of
plaintiff's title, filed a cross-complaint praying a decree in his
favor on account of certain alleged water rights. A trial resulted
in a judgment for plaintiff, which was affirmed by the supreme
court of the territory, to review which judgment this appeal was
taken. A statement of facts was prepared by the supreme court,
which statement was in substance that the land was within the place
limits and a part of the land granted to the Atlantic & Pacific
Railroad Company by act of Congress, approved July 27, 1866, 14
Stat. 292; that the grant was accepted by the company, a map of
definite location duly filed
Page 200 U. S. 72
and approved, and the railroad completed and accepted in the
year 1884; that, in April, 1894, the lands along this part of the
road were surveyed and this tract found to be the northwest 1/4 of
§ 15, township 25 north, range 3 west, of Gila and Salt river
meridian; that the survey was accepted and approved by the Surveyor
General, and also by the Commissioner of the General Land Office;
that, on June 27, 1896, this tract, together with others, was duly
and regularly selected by the railroad company as a portion of the
lands to which it was entitled under the act of Congress; that, on
July 27, 1896, the filing of the list of such selections was
allowed by the register and receiver of the United States land
office at Prescott, Arizona, by them approved, the land certified
to be public lands of the United States within the place limits of
the grant, and free from all other claims; that thereupon such list
so certified was forwarded to the Land Department at Washington,
and has since remained on file in that office; that the cost of the
survey and all fees allowed by law had been paid; that the land is
nonmineral in character, neither swamp land nor claimed as such,
nor within any reservation, and that there is no valid claim
against it on file or of record in the land office of the district
in which it is situated, and that, on January 13, 1897, the
railroad company conveyed the land to the plaintiff. The statement
of fact further shows that the only water upon the land is
percolating water, oozing through the soil beneath the surface, in
an undefined and unknown channel; that in 1889, the defendant's
grantor entered upon the land, then unoccupied and unsurveyed, sank
a well, and by running tunnels therefrom collected water in an
arroyo, and conveyed the same by pipes to troughs and a reservoir
for watering stock; that in 1892, the defendant's grantor conveyed
the land to him by quitclaim deed, and that, on July 16, 1895, he
posted on the dwelling house on the premises a notice in accordance
with the territorial act of 1886 (Laws Arizona, 1893, p. 135), that
he had appropriated all the water in a certain defined underground
channel, and recorded a copy of such notice in the public records;
that the
Page 200 U. S. 73
defendant and his grantor had been in the exclusive, open, and
notorious possession, with the knowledge of plaintiff, of the land,
improvements, and water ever since the year 1889, claiming by right
of possession only; that they had never diverted any water from the
land, or used, or caused the same to be used, elsewhere by any
person.
MR. JUSTICE BREWER delivered the opinion of the Court.
The statement of facts discloses a title in the plaintiff (now
appellee) sufficient to sustain the judgment for the recovery of
possession, although no patent had been issued.
Deseret Salt
Company v. Tarpey, 142 U. S. 241.
The certified copy of the records and papers in the General Land
Office was competent evidence. Rev.Stat. § 891. This section
determines the question of competency, but not of materiality. Some
of the letters, between the officials of the railroad company may
not have been material, but there was nothing in them prejudicial.
The certificate of the local land officers was competent to show
that, on the records of their office were no homestead, preemption,
or other valid claims, and that the land had not been returned or
denominated as swamp or mineral land. It is true there was no
positive evidence that there were no minerals in the land, and, of
course, nothing to show affirmatively that a mine might not be
discovered prior to the issue of the patent, but the same could
have been said of the showing in
Deseret Salt Co. v.
Tarpey, 142 U. S. 241.
While the question of mineral was not discussed at that time, and
was first fully considered in
Barden v. Northern Pacific
Railroad, 154 U. S. 288, it
appears from the opinion of the majority in the latter case that
there was no intention to disturb the former
Page 200 U. S. 74
ruling. Neither is there anything in
Corinne Company v.
Johnson, 156 U. S. 574, to
the contrary. In that case, a judgment of the Supreme Court of Utah
against a grantee of the railroad company was affirmed, but it was
affirmed on the ground that the record did not purport to contain
all the evidence, and, under those circumstances, we could not
assume that there was not evidence to fully sustain the judgment of
the territorial court, or that it was not in fact based upon an
adjudication by the Land Department of the presence of mineral.
It must also be noticed that this land was within the place
limits of the Atlantic & Pacific Company, and that therefore,
on the completion of the road, and without any selection or
approval thereof by the Secretary of the Interior, the title passed
unless the tract was within the excepted classes, and there was no
testimony tending to show that it was. On the contrary, the
testimony pointed in the other direction.
It is further claimed by appellant that he was protected by a
statute of limitations of the territory, paragraph 2301, Arizona
Rev.Stat. 1887, reenacted as par. 2941, Arizona Rev.Stat. 1901,
which reads:
"2941 (Sec. 7.) In all cases when the party in possession claims
real property by right of possession only, suits to recover the
possession from him shall be brought in two years after the right
of action accrues, and not afterwards, and in such case, the
defendant is not required to show title or color of title from and
under the sovereignty of the soil, as provided in the preceding
section, as against the plaintiff who shows no better right."
But this applies only in cases of mere possessory rights, and is
without force after the passing of the full legal or equitable
title from the government. Such was the construction placed on the
statute by the Supreme Court of Arizona, and is undoubtedly
correct. The language is clear. The claim of the defendant is a
"right of possession only," and the limitation applies solely
against a "plaintiff who shows no better right." To hold that the
section gives to a mere occupation of public
Page 200 U. S. 75
land a title by prescription against one subsequently acquired
from the United States would limit the full control of the
government over its landed property, and qualify or destroy the
effect of its patent or grant.
Toltec Ranch Company v.
Cook, 191 U. S. 532,
does not conflict with this, for there, a possession sufficient for
the running of the statute of limitations was held after the full
equitable title had passed from the government, and when such title
has passed, the land comes under the dominion of the state, and is
subject to its laws. But in this case, the possession had not been
long enough to create under the Arizona laws a defense to a title,
legal or equitable, and the sole reliance was upon this section,
which only applies to contests between possessory rights.
The remaining question arises under the cross-complaint of the
appellant, who claims a prior appropriation of all the water
flowing in a subterranean stream which had been reached by digging
a well, relying on these provisions of the Arizona Revised Statutes
of 1887:
"3199 (Sec. 1.) All rivers, creeks, and streams of running water
in the Territory of Arizona are hereby declared public, and
applicable to the purposes of irrigation and mining, as hereinafter
provided."
"3201 (Sec. 3.) All the inhabitants of this territory who own or
possess arable and irrigable lands shall have the right to
construct public or private acequias, and obtain the necessary
water for the same from any convenient river, creek, or stream of
running water."
We need not stop to inquire whether these sections apply to
subterranean streams, because the finding of fact, which is
sustained by the testimony, is "that the only water upon said land
is percolating water, oozing through the soil beneath the surface
in an undefined and unknown channel." Of course, this excludes the
idea of a "river, creek, or stream of running water."
We see no error in the record, and the judgment of the Supreme
Court of Arizona is
Affirmed.
