As to the alleged deviation of the road constructed from the
route laid down in the map, admitting such to be the fact, the
defendant is in no position to complain of it; the lands in
controversy are within the required limit, whether that be measured
from one line or the other. A deviation of the route without the
consent of Congress, so as to take the road beyond the lands
granted, might, perhaps, raise the question whether the grant was
not abandoned, but no such question is here presented. The
deviation within the limits of the granted lands in no way
infringed upon any rights of the defendant.
As to the want of compliance with the conditions imposed by the
laws of Nebraska, allowing railroad companies organized in other
states to extend and build their roads within its limits, it is
sufficient to say that when the grant was made to the company
Nebraska was a territory, and it was entirely competent for
Congress to confer upon a corporation of any state the right to
construct a road within any of the territories of the United
States. The grant of land and a right of way for the construction
of a road to a designated point within the territory was sufficient
authority for the company to construct the road to that point. It
may be well doubted whether the state subsequently created out of
the territory could put any impediment upon the enjoyment of the
right thus conferred. As we said in
Railroad Company v.
Baldwin,
"it could do so only on the same terms that it could refuse a
recognition of its own previously granted right, for in such
matters the state would succeed only to the authority of Congress
over the territory."
103 U. S. 103 U.S.
426,
103 U. S. 428.
It does not appear from anything before us that the state has ever
attempted to interfere with the road or the company for its delay
in filing its articles of incorporation with the Secretary of
State, or in complying with other provisions of law. And it hardly
need be added that
Page 106 U. S. 370
any such interference would not operate to divest the company of
its title to lands granted by the United States.
It follows from what we have said that when the defendant made
his entry of the lands in controversy, and obtained a patent
therefor, the title had passed from the United States, and
consequently no right could be conferred upon him. Still the patent
gave color of title, and because of its issue the officers of the
Land Department have refused to give a patent to the company
embracing the land, holding, as may be inferred, the view for which
the defendant contends that his right to acquire a preemptive right
by settlement continued until notice of the order of the Secretary
directing the withdrawal of the lands from market was received by
the local land officers. The existence of the patent therefore
embarrasses the assertion of the complainant's rights, that is, it
prevents him from obtaining a strictly legal title which would
enable him to recover possession of the premises by an action at
law. The existence of the patent also creates a cloud upon the
title of the land. Every instrument purporting by its terms to
convey land from the original source of title however invalid,
creates a cloud upon the title if it require extrinsic evidence to
show its invalidity.
Pixley v. Huggins, 15 Cal. 128.
The existence of the patent therefore under these circumstances
furnishes ground for equitable relief. That relief, however, should
properly be limited to a decree declaring the equity of the
complainant, the invalidity of the title of the defendant, and
enjoining him from the assertion of any claim to the property under
the patent; but inasmuch as no objection is taken to the form of
the decree as entered, which requires the defendant to execute a
conveyance of the premises to the complainant, and as the execution
of such a conveyance, amounting, in fact to a release of his claim
to the property, will accomplish all that could be legally
effected, it is not considered necessary to order a modification of
it. The decree is accordingly
Affirmed.