The grant of public land to the Central Pacific Railroad Company
by the Acts of July 1, 1862, 12 Stat. 489, c. 120, and July 2,
1864, 13 Stat. 356, c. 216, was a grant
in praesenti, and
the legal title to the granted land, as distinguished from merely
equitable or inchoate interests, passed when the identification of
a granted section became so far complete as to authorize the
grantee to take possession.
Rutherford v.
Greene, 2 Wheat. 196, cited and followed.
Patents were issued not for the purpose of transferring title,
but as evidence that the grantee had complied with the conditions
of the grant, and that the grant was to that extent relieved from
the possibility of forfeiture for breach of its conditions.
Wisconsin Central Railroad Co. v. Price County,
133 U. S. 496,
133 U. S. 510,
approved.
The provision in the statute requiring the cost of surveying,
selecting, and conveying the land to be paid into the Treasury
before a patent could issue, does not impair the force of the
operative words of transfer in it.
The railroad company could maintain an action for the possession
of land so granted before the issue of a patent, and could transfer
its title thereto by lease, so as to enable its lessee to maintain
such an action.
The Court stated the case as follows:
This is an action of ejectment by D. P. Tarpey, the plaintiff
below, against the Deseret Salt Company, a corporation created
under the laws of Utah, for certain parcels of land in that
territory, described in the complaint as the
"northwest quarter of fractional section nine, (9), in township
eleven (11)
Page 142 U. S. 242
north, range nine (9) west, Salt Lake base and meridian, and the
northeast quarter and the southwest quarter of said section, in
part covered with water; in all, three hundred and eighty acres,
more or less."
The greater part of these lands lie on the border of Great Salt
Lake, a body of water in that territory of nearly ninety miles in
extent, and in breadth varying from twenty to thirty miles, which
holds in solution a large quantity of common salt. The remaining
lands in the section are covered by the lake. In 1875, one Barnes
took possession of a portion of these lands and began the
construction of improvements and the erection of machinery to raise
the water of the lake and conduct it into ponds or excavations,
partly natural and partly made by him, for the purpose of
evaporating the water by exposing it to the sun, and thus producing
salt. He commenced manufacturing salt in this way in 1876 or 1877,
and continued in the business until September, 1883, when he sold
and transferred the lands and improvements to the defendant, the
Deseret Salt Company, which at once went into possession and
continued in the manufacture. The plaintiff derives his title from
the Central Pacific Railroad Company, a corporation of California,
to which a grant of land was made by the Act of Congress of July 1,
1862, embracing the premises in controversy. A greater part of its
lands, lying in Utah, was leased by the company to the plaintiff on
the 7th of August, 1885, for five years, for the annual rent of
$5,000 and in consideration of certain covenants in relation to the
property which he undertook to perform. By one of these covenants,
he stipulated to begin to reduce the premises to possession, and to
continue in that effort until he should be in the actual possession
of the whole, and for that purpose to commence and prosecute any
necessary or proper actions at law or other legal proceedings. This
lease covered the premises in controversy. On the 20th of October,
1868, the map of the definite location of the line of the railroad
of the company to be constructed under the above grant was filed in
the Interior Department, and accepted as required by the act of
Congress.
Page 142 U. S. 243
The premises in controversy constitute an alternate section of
the land within ten miles of the road, and its east, west, and
north lines were surveyed by the United States in 1871. Its
southern line, lying in the lake, had not been run. The selection
list of lands for patent by the company, filed in the land office
at Salt Lake City, which was produced in evidence, included the
surveyed lands of the section and showed that the costs of
selecting, surveying, and conveying them had been paid. There was
no evidence of any application for any other lands in the section,
and no costs were paid or tendered for their selection, survey, and
conveyance. The plaintiff also proved the incorporation in June,
1861, of the Central Pacific Railroad Company of California; its
amalgamation and consolidation in June, 1870, with the Western
Pacific Railroad Company, and, in August, 1870, with the California
and Oregon Railroad Company, the San Francisco, Oakland and Alameda
Railroad Company, and the San Joaquin Valley Railroad Company. In
the different articles of amalgamation, a conveyance was made by
the parties of their several interests to the new amalgamated
company, as follows:
"And the said several parties, each for itself, hereby sells,
assigns, transfers, grants, bargains, releases, and conveys to the
said new and consolidated company and corporation, its successors
and assigns, forever, all its property, real, personal, and mixed,
of every kind and description."
These instruments were all properly recorded. The court informed
the jury of the general nature of the grant to the company by the
Act of Congress of July 1, 1862, and the amendatory Act of July 2,
1864, and instructed them substantially that the line of the road
which the company was to construct under the grant became
definitely fixed upon its filing with the Department of the
Interior its map of definite location designating the general route
of the road, and that thereupon the beneficial interest in the land
vested in the company by relation back to the date of the act of
Congress, and that, as it was agreed that the lands in controversy
were a portion of an odd alternate section within the twenty-mile
limit of the grant, they passed to and vested in the company
Page 142 U. S. 244
at the time of the filing of that map, unless they had been
previously sold, reserved, or otherwise disposed of by the United
States, or a preemption, homestead, swamp land, or other lawful
claim had attached to them or they were known to be mineral lands
or were returned as such, and further, that the lease bearing date
the 7th day of August, 1885, from that company to the plaintiff,
for five years from the 1st day of January, 1886, gave to him the
right of immediate possession of the lands unless they were within
some of the exceptions of the grant. The defendant company denied
that the title to the lands in controversy had passed to the
Central Pacific Railroad Company, the lessor of the plaintiff, and
requested the court to instruct the jury that the plaintiff had not
shown any grant or conveyance by deed or other written instrument
sufficient to invest him with title to the lands. This instruction
was refused, and the defendant excepted. The jury returned a
verdict in favor of the plaintiff for the possession of the lands
described in the complaint and for $500 for their use and
occupation. Judgment being entered thereon, the case was carried to
the supreme court of the territory and there affirmed. From the
judgment of the latter court, the case is brought here on a writ of
error.
Page 142 U. S. 245
MR. JUSTICE FIELD, after stating the facts as above, delivered
the opinion of the Court.
The only questions which appear in this case to have elicited
much discussion in the court below relate to the title of the
Central Pacific Railroad Company to the lands granted by the Acts
of Congress of July 1, 1862, and July 2, 1864, upon the filing of a
map of the definite location of its contemplated road with the
Secretary of the Interior and its acceptance by him. Was it
sufficient to enable the lessee of the company to maintain an
action for the possession of the demanded premises? The lessee can,
of course, as against a stranger, have no greater right of
possession than his lessor. On the one hand, it is contended with
much earnestness that upon the filing of the map of definite
location of the proposed road and its acceptance by the Secretary
of the Interior, a legal title vested in the grantee to the
alternate odd sections, subject to various conditions, upon a
breach of which the title may be forfeited, but that until then,
their possession may be enforced by the grantee. On the other hand,
it is insisted with equal energy
Page 142 U. S. 246
that the grant gives only a promise of a title when the work
contemplated is completed, and that until then, possession of the
lands cannot be claimed. An examination of the granting act and the
ascertainment thereby of the intention of Congress, so far as
practicable, will alone enable us to give a satisfactory solution
to these positions.
The Act of Congress of July 1, 1862, 12 Stat. 489, c. 120,
provides for the incorporation of the union Pacific Railroad
Company, and makes a grant of land to aid in the construction of a
railroad and telegraph line from the Missouri River to the Pacific
Ocean. Its provisions, grants, and obligations specially relate in
terms to that company, but other railroad companies are embraced
within the objects of the act, and the clauses mentioning and
referring to the union Pacific Railroad Company are made applicable
to them. Thus, by the ninth section, the Central Pacific Railroad
Company of California was authorized to construct a railroad and
telegraph line from the Pacific Coast at or near San Francisco, or
the navigable waters of the Sacramento River, to the eastern
boundary of California, "upon the same terms and conditions in all
respects" as were provided for the construction of the railroad and
telegraph line of the Union Pacific. And by the tenth section of
the act, that company, after completing its road across California,
was authorized to continue the construction of its road and
telegraph line through the territories of the United States to the
Missouri River on the terms and conditions provided in the act in
relation to the union Pacific Railroad Company, or until its road
should meet and connect with the road of that company. An equal
grant of land and of like extent and upon like conditions was made
to the Central Pacific Railroad Company of California as was in
terms made to the Union Pacific Railroad Company. By the same law,
the rights and obligations of both must be determined. By the third
section, the grant was made. Its language is
"that there be and is hereby granted, to the said company, for
the purpose of aiding in the construction of said railroad and
telegraph line, and to secure the safe and speedy
Page 142 U. S. 247
transportation of the mails, troops, munitions of war, and
public stores thereon, every alternate section of public land
designated by odd numbers to the amount of five alternate sections
per mile on each side of said railroad, on the line thereof, and
within the limits of ten miles on each side of said road, not sold,
reserved, or otherwise disposed of by the United States, and to
which a preemption or homestead claim may not have attached at the
time the line of said road is definitely fixed,
provided
that all mineral lands shall be excepted from the operation of this
act; but where the same shall contain timber, the timber thereon is
hereby granted to said company."
The Act of July 2, 1864, 13 Stat. 356, 357, c. 216, enlarged the
amount of the grant to ten alternate sections on each side of the
road. By the fourth section, as amended by section 6 of the act of
1864, it was enacted
"that whenever said company shall have completed not less than
twenty consecutive miles of any portion of said railroad and
telegraph line, ready for the service contemplated by this act and
supplied with all necessary drains, culverts, viaducts, crossings,
sidings, bridges, turn-outs, watering places, depots, equipments,
furniture, and all other appurtenances of a first-class railroad,
the rails and all the other iron used in the construction and
equipment of said road to be American manufacture of the best
quality, the President of the United States shall appoint three
commissioners to examine the same and report to him in relation
thereto, and if it shall appear to him that not less than twenty
consecutive miles of said railroad and telegraph line have been
completed and equipped in all respects as required by this act,
then, upon certificate of said commissioners to that effect,
patents shall issue, conveying the right and title to said lands to
said company, on each side of the road as far as the same is
completed, to the amount aforesaid, and patents shall in like
manner issue as each twenty miles of said railroad and telegraph
line are completed, upon certificate of said commissioners."
By the terms of the act making the grant, the contention of the
defendant is not supported. Those terms import the transfer of a
present title, not one to be made in the future. They are that
"there be and is hereby granted" to the
Page 142 U. S. 248
company every alternate section of the lands. No partial or
limited interest is designated, but the lands themselves are
granted, as they are described by the sections mentioned. Whatever
interest the United States possessed in the lands was covered by
those terms unless they were qualified by subsequent provisions --
a position to be presently considered. In a great number of cases,
grants containing similar terms have been before this Court for
consideration. They have always received the same construction --
that unless the terms are restricted by other clauses, they import
a grant
in praesenti, carrying at once the interest of the
grant or in the lands described.
Schulenberg
v. Harriman, 21 Wall. 44;
Leavenworth, Lawrence
& Galveston Railroad v. United States, 92 U. S.
733. In
Wisconsin Central Railroad Co. v. Price
County, 133 U. S. 496,
133 U. S. 507,
referring to the different acts of Congress making grants to aid in
the construction of railroads, we stated that they were similar in
their general provisions, and had been before this Court for
consideration at different times, and of the title they passe, we
said:
"The title conferred was a present one, so as to insure the
donation for the construction of the road proposed against any
revocation by Congress except for nonperformance of the work within
the period designated, accompanied, however, with such restrictions
upon the use and disposal of the lands as to prevent their
diversion from the purposes of the grant."
As the sections granted were to be within a certain distance on
each side of the line of the contemplated railroad, they could not
be located until the line of the road was fixed. The grant was
therefore in the nature of a "float;" but when the route of the
road was definitely fixed, the sections granted became susceptible
of identification and the title then attached as of the date of the
grant, except as to such parcels as had been in the meantime under
its provisions appropriated to other purposes. That doctrine is
very clearly stated in the
Leavenworth case cited above,
where the language of the grant was identical with that of the one
under consideration, and the Court said:
Page 142 U. S. 249
"'There be and is hereby granted' are words of absolute
donation, and import a grant
in praesenti. This Court has
held that they can have no other meaning, and the Land Department,
on this interpretation of them, has uniformly administered every
previous similar grant. They vest a present title in the State of
Kansas [the grantee named], though a survey of the lands and a
location of the road are necessary to give precision to it and
attach it to any particular tract. The grant then becomes certain,
and, by relation, has the same effect upon the selected parcels as
if it had specifically described them."
The terms used in the granting clause of the act of Congress,
and the interpretation thus given to them, exclude the idea that
they are to be treated as words of contract or promise, rather
than, as they naturally import, as words indicating an immediate
transfer of interest. The title transferred is a legal title, as
distinguished from an equitable or inchoate interest.
The case of
Rutherford v. Greene's
Heirs, 2 Wheat. 196, well illustrates the nature of
the title. In 1782, the State of North Carolina passed an act
providing "that twenty-five thousand acres of land shall be
allotted for and given to Major General Nathaniel Greene" within
the bounds of a tract reserved for the use of the army, to be laid
off by commissioners designated in the act, as a mark of the high
sense the state entertained of the extraordinary services of that
brave and gallant officer. The commissioners allotted the 25,000
acres, and in 1783 caused a survey of them to be made and returned
to the proper office. One Rutherford claimed under a subsequent
entry five thousand acres of the tract, and instituted a suit to
establish his claim. The case turned upon the validity of Greene's
title and the date at which it commenced. It was contended by
Rutherford's counsel that the words of the act gave nothing; that
they were in the future, and not in the present, tense, and
indicated an intention to give in future, but created no present
obligation on the state, nor present interest in General Greene.
But the Court, speaking by Chief Justice Marshall, answered
Page 142 U. S. 250
that it thought differently; that the words were words of
absolute donation, not indeed of any specific land, but of 25,000
acres in the territory reserved for the officers and soldiers;
that, as the act of setting apart that quantity to General Greene
was to be performed in the future, the words directing it were
necessarily in the future tense, but that nothing could be more
apparent than the intention of the legislature to order the
commissioners to make the allotment, and to give the land, when
allotted, to General Greene. And the Court held that the general
gift of 25,000 acres, lying in the reserved territory, became by
the survey a particular gift of that quantity contained in the
survey, and concluded an elaborate examination of the title by
stating that it was clearly and unanimously of the opinion that the
act of 1782 vested a title in General Greene to 25,000 acres of
land, to be laid off within the bounds allotted to the officers and
soldiers, and that the survey made and returned in pursuance of
that act gave precision to that title, and attached it to the land
surveyed. It would therefore seem clear that the title which passed
under the act of Congress by the grant of the odd sections became
by their identification so far complete as to authorize the grantee
to take possession and make use of the lands, and in the exercise
of that authority the grantee took possession, from time to time,
as the lands became identified by the location of the line of the
road, and made sales of parcels of the lands, and executed
mortgages on other parcels with sections of the road constructed,
for the purpose of raising money to meet expenses already incurred,
and which might thereafter be required for the completion of the
road, and such mortgages were authorized by Congress.
But it is contended that the natural import of the granting
terms of the act is qualified and restricted by its fourth section,
which, as amended by the act of 1864, provides that upon the
completion of not less than twenty consecutive miles of the road
and telegraph line in the manner required, and their acceptance by
the President upon the report of commissioners appointed to examine
the work, patents shall issue to the
Page 142 U. S. 251
company conveying the right and title to said lands on each side
of the road as far as the same is completed. The question naturally
arises as to the necessity for patents if the title passed by the
act itself upon the definite location of the road, when the
alternate sections granted had become identified. We answer that
objection by saying that there are many reasons why the issue of
the patents would be of great service to the patentees, and by
repeating substantially what we said on that subject in
Wisconsin Railroad Co. v. Price County, 133 U.
S. 496,
133 U. S. 510.
While not essential to transfer the legal right, the patents would
be evidence that the grantee had complied with the conditions of
the grant, and to that extent that the grant was relieved from the
possibility of forfeiture for breach of its conditions. They would
serve to identify the lands as coterminous with the road completed.
They would obviate the necessity of any other evidence of the
grantee's right to the lands, and they would be evidence that the
lands were subject to the disposal of the railroad company, with
the consent of the government. They would thus be, in the grantee's
hands, deeds of further assurance of his title, and therefore a
source of quiet and peace to him in its possession. There are many
instances in the Reports, as there stated, where patents have been
required and issued, although the title of the patentee had been
previously recognized and confirmed.
Langdeau
v. Hanes, 21 Wall. 521,
88 U. S. 529,
is an instance of that kind. In that case, there had been a
previous confirmation to the heirs of one Tongas of a claim to a
tract of land in the French and Canadian settlement of St. Vincents
in the Northwestern Territory, conveyed by Virginia to the United
States in 1793. This claim was confirmed by commissioners appointed
by Congress under the act of 1804, and their decision was confirmed
by the Act of Congress of March 3, 1807, but no patent, for which
this last act provided upon a location and survey of the claim, was
issued for the tract at that time. One was, however, issued for it
in 1872 upon a survey made in 1820, and the question was whether a
new title was acquired by that patent, or whether the old title was
good from the confirmation. It was held that the old title was good
from the
Page 142 U. S. 252
confirmation if the claim was to a tract of defined boundaries,
or capable of identification; but if the claim was to quantity, and
not to a specific tract, the title became perfect when the quantity
was segregated by the survey of 1820, and to explain the subsequent
issue of a patent in 1872, this Court said:
"In the legislation of Congress, a patent has a double
operation. It is a conveyance by the government when the government
has any interest to convey, but where it is issued upon the
confirmation of a claim of a previously existing title, it is
documentary evidence, having the dignity of a record, of the
existence of that title or of such equities respecting the claim as
justify its recognition and confirmation. The instrument is not the
less efficacious as evidence of previously existing rights because
it also embodies words of release or transfer from the
government."
While a legal title to the sections designated, as distinguished
from a merely equitable or inchoate interest, passed to the
railroad company by the act of Congress, upon the definite line of
the road being once established, by which the sections could be
ascertained and identified, the lands could not be disposed of by
the company without the consent of Congress, except as each
twenty-mile section of the road was completed and accepted by the
President, so as to cut off the right of the United States to
compel the application of the lands to the purposes for which they
were granted or to prevent their forfeiture in case of the
company's failure to perform the conditions of the grant. The lands
were granted to aid in the construction of the railroad and
telegraph line, and it is manifest from different provisions of the
act that Congress intended to secure this application of them.
Whatever disposition might be made by the company of the lands
after they became, by the definite location of the road, capable of
identification, they were subject to the control of Congress either
to compel their application for the construction of the road
contemplated or to enforce their forfeiture if the road was not
completed as required by the act. The application of the lands to
the construction would not of itself operate to transfer the title;
it would only remove the restriction upon the use and disposition
of the title already possessed.
Page 142 U. S. 253
But it is unnecessary to consider what power of disposition the
company would possess in advance of the construction of the road,
for that road was entirely completed years before the execution of
the lease to the plaintiff in this case in August, 1885.
It is also urged that the title of the government to the lands
in controversy was retained until the cost of selecting, surveying,
and conveying the whole of them was paid. In support of this
position, the twenty-first section of the Act of July 2, 1864, is
referred to, which provides that before any land granted by the act
shall be conveyed to any company or party entitled thereto, there
shall first be paid into the Treasury of the United States the cost
of surveying, selecting, and conveying the same. The object of this
provision was to preserve to the government such control over the
property granted as to enable it to enforce the payment of these
costs, and for that purpose to withhold its patents from the
parties entitled to them until such payment. The act of 1862, in
its fourth section, as amended in 1864, speaks of patents issuing
"conveying the right and title" to the lands upon the completion of
every section of not less than twenty miles, to the satisfaction of
the President, and the twenty-first section of the act of 1864 only
directs the withholding of these evidences of the transfer of title
until payment is made for the selection, survey, and conveyance of
the land. Neither the issue of the patents nor any sale for taxes
by state authority is permitted until such payment, thereby
preserving unimpaired the lien contemplated. We do not think the
provision was designed to impair the force of the operative words
of transfer in the grants of the United States or invalidate the
numerous conveyances by sale and mortgage of the lands made by the
railroad company with the express or implied assent of the
government. Besides, in this case, the exterior limits of the
section containing the lands in controversy, which are above the
waters of the lake, were surveyed in 1871, and the costs of
selecting, surveying, and conveying the legal subdivisions as
described by that survey were paid at the time of selection by
the
Page 142 U. S. 254
company. The lines of the lands under the water have not been
run, but are easily traceable by reference to the lines actually
surveyed. The possession of the lands under the lake appears to
have always accompanied the possession of the lands on its border.
No contest was made against their recovery if a right of possession
was shown to the border lands. From the view of the interest
conveyed by the grant which we have expressed, we are satisfied
that the company could maintain an action for the possession of the
premises in controversy, and that its lessee, the plaintiff herein,
was possessed of the same right. The judgment must therefore be
Affirmed.
