The intent of Congress in each and all of its railroad land
grants was that the grant should operate at a fixed time, and
should cover only such lands as at that time were public lands,
grantable by Congress, and such a grant is not to be taken as a
floating authority to appropriate lands within the specified limits
which at a subsequent time might become public land.
The grant of land made to the Atlantic and Pacific Railroad
Company by the Act of July 27, 1866, 14 Stat. 292, c. 278, and the
grant to the Southern Pacific Railroad Company by the Act of March
3, 1871, 16 Stat. 573, c. 122, were grants
in praesenti
which, when maps of definite location were filed and approved, took
effect, by relation, as of the dates of the respective
statutes.
The filing by the Atlantic and Pacific Company of a map of
definite location from the Colorado River through San Buenaventura
to San Francisco, under a claim of right to construct a road for
the entire distance, was good as a map of definite location from
the Colorado River to San Buenaventura.
The Atlantic and Pacific Railroad Company having duly filed a
valid and sufficient map of definite location of its route from the
Colorado River to the Pacific Ocean which was approved by the
Secretary of the Interior, the title to the lands in dispute passed
thereby to that company under the grant of July 27, 1866, and
remained held by it, subject to a condition subsequent, until their
forfeiture under the Act of July 6, 1886, 24 Stat. 123, c. 637, and
by that act of forfeiture the title thereto was
Page 146 U. S. 571
retaken by the United States for its own benefit, and not for
that of the Southern Pacific Railroad Company, whose grant never
attached to the lands so as to give that company any title of any
kind to them.
On July 27, 1866, Congress passed an act granting lands to aid
in the construction of a railroad from the States of Missouri and
Arkansas to the Pacific Coast. 14 Stat. 292. c. 278. By the first
section, a corporation to be known as the Atlantic & Pacific
Railroad Company was created, and authorized to construct and
operate a road from a point near the Town of Springfield, in the
State of Missouri, westward through Albuquerque,
"and thence along the thirty-fifth parallel of latitude, as near
as may be found most suitable for a railway route, to the Colorado
River at such point as may be selected by said company for
crossing; thence by the most practicable and eligible route to the
Pacific."
The third section making the land grant is, so far as touching
any question in this case is concerned, as follows:
"SEC. 3. That there be, and hereby is, granted to the Atlantic
& Pacific Railroad Company, its successors and assigns, for the
purpose of aiding in the construction of said railroad and
telegraph line to the Pacific Coast, and to secure the safe and
speedy transportation of the mails, troops, munitions of war, and
public stores over the route of said line of railway and its
branches, every alternate section of public land, not mineral,
designated by odd numbers, to the amount of twenty alternate
sections per mile, on each side of said railroad line, as said
company may adopt, through the territories of the United States,
and ten alternate sections of land per mile on each side of said
railroad whenever it passes through any state, and whenever, on the
line thereof, the United States have full title,
Page 146 U. S. 572
not reserved, sold, granted, or otherwise appropriated, and free
from preemption or other claims or rights at the time the line of
said road is designated by a plat thereof filed in the office of
the Commissioner of the General Land Office, and whenever, prior to
said time, any of said sections or parts of sections shall have
been granted, sold, reserved, occupied by homestead settlers, or
preempted, or otherwise disposed of, other lands shall be selected
by said company in lieu thereof, under the direction of the
Secretary of the Interior, in alternate sections, and designated by
odd numbers, not more than ten miles beyond the limits of said
alternate sections, and not including the reserved numbers,
provided that if said route shall be found upon the line
of any other railroad route to aid in the construction of which
lands have been heretofore granted by the United States, so far as
the routes are upon the same general line, the amount of land
heretofore granted shall be deducted from the amount granted by
this act."
The eighteenth section was in these words:
"SEC. 18. That the Southern Pacific Railroad, a company
incorporated under the laws of the State of California, is hereby
authorized to connect with the said Atlantic and Pacific Railroad,
formed under this act at such point near the boundary line of the
State of California as they shall deem most suitable for a railroad
line to San Francisco, and shall have a uniform gauge and rate of
freight or fare with said road, and in consideration thereof, to
aid in its construction, shall have similar grants of land, subject
to all the conditions and limitations herein provided, and shall be
required to construct its road on the like regulations, as to time
and manner, with the Atlantic and Pacific Railroad, herein provided
for."
On March 3, 1871, Congress passed an act, 16 Stat. 573, to
incorporate the Texas Pacific Railroad Company, and to aid in the
construction of its road, the twenty-third section of which act
reads:
"That, for the purpose of connecting the Texas Pacific Railroad
with the City of San Francisco, the Southern Pacific Railroad
Company of California is hereby authorized (subject to the laws of
California) to construct a line of railroad from
Page 146 U. S. 573
a point at or near Tehachapa Pass, by way of Los Angeles, to the
Texas Pacific railroad at or near Colorado River, with the same
rights, grants, and privileges, and subject to the same
limitations, restrictions, and conditions, as were granted to said
Southern Pacific Railroad Company of California by the Act of July
27, 1866,
provided, however, that this section shall in no
way affect or impair the rights, present or prospective, of the
Atlantic and Pacific Railroad Company or any other railroad
company."
Under the Act of July, 1866, the Atlantic and Pacific Company
proceeded to construct a part of its road, but did not work west of
the Colorado River, the east line of the State of California. It
did, however, file maps of that which it claimed to be its line of
definite location from the Colorado River to the Pacific Ocean,
which, on April 11, 1872, and August 15, 1872, were accepted and
approved by the Secretary of the Interior. On July 6, 1886,
Congress passed this act of forfeiture:
"
At act to forfeit the lands granted to the
Atlantic"
"
and Pacific Railroad Company, etc."
"
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled, that all
the lands, excepting the right of way, and the right, power, and
authority given to said corporation to take from the public lands
adjacent to the line of said road material of earth, stone, timber,
and so forth, for the construction thereof, including all necessary
grounds for station buildings, workshops, depots, machine shops,
switches, side tracks, turn tables, and water stations, heretofore
granted to the Atlantic and Pacific Railroad Company by an act
entitled 'An act granting lands to aid in the construction of a
railroad and telegraph line from the states of Missouri and
Arkansas to the Pacific Coast,' approved July twenty-seventh,
eighteen hundred and sixty-six, and subsequent acts and joint
resolutions of Congress, which are adjacent to and conterminous
with the uncompleted portions of the main line of said road,
embraced within
Page 146 U. S. 574
both the granted and indemnity limits, as contemplated to be
constructed under and by the provisions of said Act of July
twenty-seventh, eighteen hundred and sixty-six, and acts and joint
resolutions subsequent thereto and relating to the construction of
said road and telegraph, be, and the same are hereby, declared
forfeited and restored to the public domain."
24 Stat. 123.
On April 3, 1871, just a month after the passage of the Act of
March 3, the defendant the Southern Pacific Company filed a map of
its route from Tehachapa Pass, by way of Los Angeles, to the Texas
Pacific railroad, and proceeded to construct its road, and finished
the entire construction some time during the year 1878. Its road
crossed the line, as located, of the Atlantic and Pacific Company.
The lands in controversy in these cases are within the granted or
place limits of both the Atlantic and Pacific and the Southern
Pacific Companies at the place where these lines cross. As the
Atlantic and Pacific Company did not construct its line, and as its
rights were subsequently forfeited by Congress, and as the Southern
Pacific Company did construct its line, the latter claimed that, by
virtue of its grant and the construction of its road, these lands
became its property. It was to test this claim of title and to
restrain trespasses by the railroad company and those claiming
under it on the lands that these actions were brought in the
Circuit Court of the United States for the Southern District of
California. In that court, the decisions were in favor of the
defendants, and decrees entered dismissing the bills, from which
decrees the government brought its appeal to this Court.
See 39 F. 132; 40 F. 611; 45 F. 596; 46 F. 683.
Page 146 U. S. 592
MR. JUSTICE BREWER, after stating the facts in the foregoing
language, delivered the opinion of the Court.
The question to be considered is not as to the validity of the
grant to the Southern Pacific Company, but only as to its extent.
It may be conceded that the company took title to lands generally
along its line, from Tehachapa Pass to its junction with the Texas
Pacific, and the contention of the government is here limited to
those lands only which lie within the granted limits of both the
Atlantic and Pacific and the Southern Pacific Companies at the
crossing of their lines, as definitely located. As it appears from
the record that, at the time of the location of the former
company's line, so many entries that the indemnity limits were had
been taken up by preemption and homestead entries that the
indemnity limits were not large enough to supply its deficiency, it
is obvious that the land to be affected by this decision is of
limited area in comparison with the large body of lands covered by
the grant to the Southern Pacific.
The contention of the government is that these lands were not
included within the grant to the Southern Pacific. Such contention
implies no want of good faith on its part. It is not attempting to
take back or forfeit that which it has once
Page 146 U. S. 593
granted. It is only seeking, a difference of opinion having
arisen, an adjustment, a determination of the extent of its grant.
Less than that could not be expected; more than that could not be
asked of it.
The grants to both the Atlantic and Pacific and the Southern
Pacific Companies were grants
in praesenti. The language
is, "there be, and hereby is, granted." The construction and effect
of such words of grant have often been considered by this Court In
the recent case of
St. Paul & Pacific Railroad Company v.
Northern Pacific Railroad Company, 139 U. S.
1,
139 U. S. 5, MR.
JUSTICE FIELD, speaking for the Court, said:
"As seen by the terms of the third section of the act, the grant
is one
in praesenti -- that is, it purports to pass a
present title to the lands designated by alternate sections,
subject to such exceptions and reservations as may arise from sale,
grant, preemption, or other disposition previous to the time the
definite route of the road is fixed. The language of the statute is
'that there be, and hereby is, granted' to the company every
alternate section of the lands designated, which implies that the
property itself is passed, not any special or limited interest in
it. The words also import a transfer of a present title, not a
promise to transfer one in the future. The route not being at the
time determined, the grant was in the nature of a float, and the
title did not attach to any specific sections until they were
capable of identification; but when once identified, the title
attached to them as of the date of the grant, except as to such
sections as were specifically reserved. It is in this sense that
the grant is termed one
in praesenti -- that is to say, it
is of that character as to all lands within the terms of the grant,
and not reserved from it at the time of the definite location of
the route. This is the construction given to similar grants by this
Court, where the question has been often considered; indeed, it is
so well settled as to be no longer open to discussion.
Schulenberg v. Harriman, 21
Wall. 44,
88 U. S. 60;
Leavenworth,
Lawrence &c. Railroad Co. v. United States, 92 U. S.
733;
Missouri, Kansas &c. Railway Co. v. Kansas
Pacific Railway Co., 97 U. S. 491;
Railroad Co. v.
Baldwin, 103 U. S. 426. The terms of
present grant are in some cases qualified by
Page 146 U. S. 594
other portions of the granting act, as in the case of
Rice v.
Railroad Co., 1 Black 358; but unless qualified,
they are to receive the interpretation mentioned."
In view of this late and clear declaration, it would be a waste
of time to attempt a reexamination of the questions, or a
restatement of the reasons which have established these as the
settled rules of law in respect to land grants, and made it so that
the old common law rule as to the necessity of identification to a
conveyance has not been controlling in determining the scope and
effect of a congressional land grant. Yet reference may be had to
the still later case of
Bardon v. Northern Pacific
Railroad, 145 U. S. 535, in
which the doctrine that title passes by relation as of the date of
the grant was held to exclude from a grant land which at the date
of the act was held under a homestead claim, although the claim had
been abandoned and the land restored to the public domain before
the filing of the map of definite location. It may also not be
amiss to notice the case of
Schulenberg v.
Harriman, 21 Wall. 44. In that case, land had been
granted to the State of Wisconsin to aid in the construction of a
railroad. The language of the grant was like that in this: "There
be, and is hereby, granted." A further provision was that if the
road be not completed within ten years "no further sales shall be
made, and the lands unsold shall revert to the United States." The
railroad was not completed within the time specified. Thereafter,
timber was cut and removed from these lands, and the question for
consideration was as to the ownership of that timber. It was held
that the timber was the property of the state; that by the grant,
title to the land passed to the state upon the location of the
route, and that, though the road was not completed within the time
specified, and though there was the provision that the unsold lands
should revert, yet the title still remained in the state, held
under a condition subsequent, and held until the government should
take some steps to assert a forfeiture.
Applying these well settled rules to the cases at bar, there can
be little difficulty in arriving at a conclusion. The grant to the
Atlantic and Pacific was made in 1866; to the Southern
Page 146 U. S. 595
Pacific in 1871. They were grants
in praesenti. When
maps of definite location were filed and approved, the grants
severally took effect by relation as of the dates of the acts. The
map of definite location of the Atlantic and Pacific Company's road
along the lands in controversy was filed and approved on April 11,
1872. Then the specific tracts were designated, and to them the
title of the Atlantic and Pacific attached as of July 27, 1866. If
anything in the land laws of the United States can be considered as
thoroughly settled by repeated decisions, it is this. It matters
not when the map of definite location of the Southern Pacific was
filed and approved -- whether before or after April 11, 1872 -- for
when filed, the grant could taken effect by relation only as of
March 3, 1871, and at that time, and for nearly five years
theretofore, the title to these lands had been in the Atlantic and
Pacific. It matters not that the act of 1871 in terms purports to
bestow the same rights, grants, and privileges as were granted to
the Southern Pacific Railroad Company by the act of 1866. That
merely defines the extent of the grant and the character of the
rights and privileges. It does not operate to make the latter grant
take effect by relation as of the date of the prior grant, and thus
subject the grants to the two companies to the rule controlling
contemporaneous grants, as established by
St. Paul & Sioux
City Railroad v. Winona & St. Peter Railroad, 112 U.
S. 720, and
Sioux City & St. Paul Railroad v.
Chicago, Milwaukee &c. Railway, 117 U.
S. 406. Even if Congress had in terms expressed an
intent to that effect in a subsequent act, it was not competent, by
such legislation, to divest the rights already vested in the
Atlantic and Pacific Company. So the case, in the best way of
putting it for the defendant, is the case of two companies with
conflicting grants, each of whose line of definite location has
been approved by the Land Department. Unquestionably the grant
older in date takes the land.
Some stress seems to have been laid in the court below on the
proviso to the act of 1871, which reads:
"Provided, however, that this section shall in no way affect or
impair the rights, present or prospective, of the Atlantic and
Pacific
Page 146 U. S. 596
Railroad Company, or any other railroad company."
But the language of this proviso is negative and restrictive,
and not affirmative and enlarging. It says substantially that
nothing in the grant to the Southern Pacific shall affect or impair
other grants. Surely the declaration that this grant does not
affect some other grant does not make this grant any larger than it
would have been without that declaration. It simply prevents it
from having any effect which, but for the declaration, it might be
supposed to have on something else. If without those words it could
take nothing granted to the Atlantic and Pacific,
a
fortiori with them it takes nothing.
But it is urged by counsel for defendant that no map of definite
location of line between the Colorado River and the Pacific Ocean
was ever filed by the Atlantic and Pacific or approved by the
Secretary of the Interior. This contention is based upon these
facts: the Atlantic and Pacific Company claimed that under its
charter, it was authorized to build a road from the Colorado River
to the Pacific Ocean, and thence along the coast up to San
Francisco, and it filed maps thereof in four section. San
Buenaventura was the point where the westward line first touched
the Pacific Ocean. One of these maps was of that portion of the
line extending from the western boundary of Los Angeles County, a
point east of San Buenaventura, and through that place to San
Miguel Mission, in the direction of San Francisco. In other words,
San Buenaventura was not the terminus of any line of definite
location from the Colorado River westward, whether shown by one or
more maps, but only an intermediate point on one sectional map.
When the four maps were filed, and in 1872, the Land Department,
holding that the Atlantic and Pacific Company was authorized to
build not only from the Colorado River directly to the Pacific
Ocean, but also thence north to San Francisco, approved them as
establishing the line of definite location. Subsequently, and when
Mr. Justice Lamar was Secretary of the Interior, the matter was
reexamined, and it was properly held that under the act of 1866,
the grant to the Atlantic and Pacific was exhausted when its line
reached the Pacific Ocean. San Buenaventura was therefore held to
be
Page 146 U. S. 597
the western terminus, and the location of the line approved to
that point. The fact that its line was located, and maps filed
thereof in sections is immaterial.
St. Paul & Pacific
Railroad v. Northern Pacific Railroad, 139 U. S.
1. Indeed, all the transcontinental roads, it is
believed, filed their maps of route in sections. So the question is
whether the filling a map of definite location from the Colorado
River through San Buenaventura to San Francisco, under a claim of
right to construct a road the entire distance, is good as a map of
definite location from the Colorado River to San Buenaventura, the
latter point being the limit of the grant. We think unquestionably
it is. Though a party claims more than he is legally entitled to,
his claim ought not to be rejected for that to which he has a
right. The purpose of filing a map of definite location is to
enable the Land Department to designate the lands passing under the
grant, and when a map of such a line is filed, full information is
given, and so far as that line may legally extend, the law perfects
the title. It surely cannot be that a company must determine at its
peril the extent to which its grant may go, or that a mistake in
such determination works a forfeiture of all its rights to
lands.
In this connection, reference may be had to the contention of
the Southern Pacific Company that it filed its map of definite
location on April 3, 1871, more than a year before the filing of
its map by the Atlantic and Pacific Company; that therefore its
title then attached to these lands the same as to any other lands
along its line, and that, if such title was displaced by any
subsequent filing of the Atlantic and Pacific Company's map, it was
only conditionally displaced -- that is, displaced on condition
that the Atlantic and Pacific Company should, by the final
completion of its road, perfect its right thereto. But whatever
title or right the Southern Pacific Company might acquire by a
prior filing of its map was absolutely displaced when the Atlantic
and Pacific Company's map was filed. Illy as it may accord with the
common law notions of identification of tracts as essential to a
valid transfer of title, it is fully settled that we are to
construe these acts of Congress as laws as well as grants; that
Page 146 U. S. 598
congress intends no scramble between companies for the grasping
of titles by priority of location, but that it is to be regarded as
though title passes as of the date of the act, and to the company
having priority of grant, and therefore that in the eye of the law,
it is now as though there never was a period of time during which
any title to these lands was in the Southern Pacific. As said in
the case of
Missouri, Kansas & Texas Railway v. Kansas
Pacific Railway, 97 U. S. 491,
97 U. S.
497:
"It is always to be borne in mind in construing a congressional
grant that the act by which it is made is a law as well as a
conveyance, and that such effect must be given to it as will carry
out the intent of Congress. That intent should not be defeated by
applying to the grant the rules of the common law, which are
properly applicable only to transfers between private parties. To
the validity of such transfers it may be admitted that there must
exist a present power of identification of the land, and that where
no such power exists, instruments with words of present grant are
operative, if at all, only as contracts to convey. But the rules of
the common law must yield in this, as in all other cases, to the
legislative will."
So now, whatever may have been the dates of filing by the
respective companies, the case stands as though the lands granted
to the Atlantic and Pacific had been identified in 1866, and title
had then passed, and there never was a title of any kind vested in
the Southern Pacific Company.
And whatever of plausibility there might be in this suggestion
of counsel, based upon the old common law rules in respect to the
effect of a lack of identification upon attempted conveyances
between private parties, it fails entirely because its map of
definite location was not filed by the Southern Pacific Company
until long after the filing by the Atlantic and Pacific Company. It
is true that the bills of complaint in these cases alleged that
"said Southern Pacific Railroad Company accepted said grant, and
on April 3, 1871, did designate the line of its said road by a plat
thereof, which it on that day filed in the office of the
Commissioner of the General
Page 146 U. S. 599
Land Office, and did construct and complete said road in the
manner and within the time prescribed, except that it did not
connect with the Texas and Pacific Railroad, and on April 3, 1871,
the odd sections of public land for thirty miles in width on each
side of said route, to which the United States had full title, not
reserved, sold, granted, appropriated, and free from all claims and
rights, were by the Department of the Interior ordered withdrawn
from sale and entry, and reserved."
This allegation apparently refers by its terms to the line of
definite location, as provided for in section 3 of the Act of July
27, 1866, inasmuch as it uses the words of that section, to-wit,
"at the time the line of said road is designated by a plat
thereof," and if this were a matter vital to the case, it might be
necessary to require that the bill be amended to conform to the
proof, though it may be remarked that the allegations in the last
part of the clause quoted, in respect to the withdrawal of lands,
seem to indicate that the map of general route, rather than that of
definite location, was referred to.
The distinction between the line of definite location and the
general route is well known. It was clearly pointed our in the case
of
Buttz v. Northern Pacific Railroad Co., 119 U. S.
55. The act under consideration in that case was that of
July 2, 1864, 13 Stat. 365, making a grant to the Northern Pacific
Railroad Company. The third section of that act, as the third of
this, made the grant, and provided for the line of definite
location. Section 6 authorized the fixing of the general route, and
its language in respect to that matter is the same as that of
section 6 of the act before us. It reads:
"That the President of the United States shall cause the lands
to be surveyed for forty miles in width on both sides of the entire
line of said road, after the general route shall be fixed, and as
fast as may be required by the construction of said railroad, and
the odd sections of land hereby granted shall not be liable to sale
or entry,"
etc. Referring to this matter, it was said in the opinion in
that case, on pages
119 U. S.
71-72:
"The act of Congress not only contemplates the filing by the
company, in the office of the Commissioner of
Page 146 U. S. 600
the General Land Office, of a map showing the definite location
of the line of its road, and limits the grant to such alternate odd
sections as have not at that time been reserved, sold, granted, or
otherwise appropriated, and are free from preemption, grant, or
other claims or rights, but it also contemplates a preliminary
designation of the general route of the road and the exclusion from
sale, entry, or preemption of the adjoining odd sections within
forty miles on each side, until the definite location is made. . .
. The general route may be considered as fixed when its general
course and direction are determined after an actual examination of
the country, or from a knowledge of it, and is designated by a line
on a map showing the general features of the adjacent country, and
the places through or by which it will pass. The officers of the
Land Department are expected to exercise supervision over the
matter so as to require good faith on the part of the company in
designating the general route, and not to accept an arbitrary and
capricious selection of the line, irrespective of the character of
the country through which the road is to be constructed. When the
general route of the road is thus fixed in good faith, and
information thereof given to the Land Department by filing the map
thereof with the Commissioner of the General Land Office or the
Secretary of the Interior, the law withdraws from sale or
preemption the odd sections to the extent of forty miles on each
side. The object of the law in this particular is plain. It is to
preserve the land for the company to which, in aid of the
construction of the road, it is granted. Although the act does not
require the officers of the Land Department to give notice to the
local Land Officers of the withdrawal of the odd sections from sale
or preemption, it has been the practice of the department in such
cases to formally withdraw them."
As the Act of July 27, 1866, the one before us, is in these
respects exactly like that of the one before the Court in that
case, it must be held that here, as there, Congress provided for
two separate matters -- one the fixing of the general route and the
other the designation of the line of definite location -- and an
examination of the evidence shows that the map which
Page 146 U. S. 601
was filed on April 3, 1871, was simply one of general route, and
therefore did not work a designation of the tracts of land to which
the Southern Pacific's grant attached. As the map was filed within
one month after the grant, it might be inferred that there had not
been sufficient time to fix the line of definite location, though,
of course, it would be possible, as counsel suggests, that the
company had surveyed the line in anticipation of the grant, and the
matter of time would not be decisive. But turning to the map
itself, a copy of which is in evidence, we find that this is the
certificate made thereon by the Southern Pacific Company:
"To Hon. C. Delano, Secretary of the Interior, and Hon. Willis
Drummond, commissioner of General Land Office:"
"Please to take notice that this map is filed by the Southern
Pacific Railroad Company, of California, in the office of the
Commissioner of the General Land Office, in the Department of the
Interior, for the purpose of designating, by the heavy red line
traced thereon, the general route of the line of railroad, as near
as may be, from a point at or near Tehachapa Pass, by way of Los
Angeles, to the Texas Pacific Railroad at or near the Colorado
River, adopted by the said Southern Pacific Railroad Company in
pursuance of the power and authority granted to said company by the
23d section of the act of Congress of the United States, entitled
'An act to incorporate the Texas Pacific Railroad Company, and to
aid in the construction of its road, and for other purposes,'
approved March 3, 1871, and in pursuance of the provisions of the
Act of July 27, 1866, referred to in said 23d section, and for the
purpose of obtaining the benefit of the provisions of said acts of
Congress."
"Chas. Crocker"
"President Southern Pacific Railroad Company"
Not only that, but upon the filing of the map, and on April 21,
1871, the Commissioner of the General Land Office sent to the
receiver at Los Angeles a letter making a direction of withdrawal,
in which he says, referring to this matter:
"The company
Page 146 U. S. 602
having filed a diagram designating the general route of said
road, I here with transmit a map showing thereon the line of route,
as also the 20 and 30-mile limits of the grant, to the line of
withdrawal for the Southern Pacific Railroad under the act of 1866,
and you are hereby directed to withhold from sale or location,
preemption, or homestead entry, all the odd-numbered sections
falling within those limits."
Further, there is in evidence an exemplification of a diagram in
the Land Office showing the limits of the grant to the Atlantic and
Pacific Company, with the intersecting limits of the grant to the
Southern Pacific Company, on which diagram appear two lines -- one
traced in blue, and marked "Branch of the Southern Pacific
Railroad," and the other in red, somewhat divergent therefrom,
marked "Southern Pacific Railroad, Definite Location." Still
further, on the minutes of the proceedings of meetings of the
directors of the Southern Pacific road, held on April 10, September
8, and October 1, 1874, appear resolutions similar in their
character, but having reference to different parts of the line
between Tehachapa Pass and the Texas Pacific Railroad.
The one passed at the meeting on April 10, 1874, is in these
words:
"
Resolved that the line of railroad as it has been
surveyed and laid out on map marked 'AA,' and described as follows:
commencing at a point in the northwest quarter (N.W. 1/4) of
section [three] (3), township two (2) north, range fifteen(15)
west, San Bernardino base and meridian, and running thence in a
southeasterly direction to the City of Los Angeles, and thence in
an easterly direction to a point in the northeasterly quarter (N.E.
1/4) of section twenty-seven (27), township one (1) south, range
nine (9) west, San Bernardino base and meridian, being map and
profile of section No. one, Southern Pacific Railroad and telegraph
line authorized by the twenty-third section of the Texas Pacific
Railroad Act, approved March 3, 1871, be, and the same is hereby,
adopted as the route of said railroad between the points
named."
"[Signed] J. L. Willcutt,
Secty"
Page 146 U. S. 603
So only at these late days was the line of definite location
determined upon by the company. Of course, therefore the map filed
April 3, 1871, could not have been a map of that line, but it was,
as it states, only of the general route, and there was then no
designation of lands to which the Southern Pacific Company's title
could attach.
On the other hand, the Atlantic and Pacific Company did file its
maps of definite location. This appears from the certificates
thereon. In the one covering the line along the lands in
controversy, the chief engineer of the company certifies that E. N.
Robinson was a deputy engineer, and that the latter,
"as shown by his field notes, did actually survey and mark upon
the ground, or cause to be surveyed and marked upon the ground, the
line or route of the Atlantic and Pacific Railroad,"
etc., as delineated upon the map, and that his acts in the
premises were duly approved and accepted on behalf of the company
by himself as chief engineer. And in the further official
certificate of the company it is stated that the
"map shows the line or route of the said Atlantic and Pacific
Railroad in the county, . . . being a part of the line or route of
said railroad, as definitely fixed in compliance with said acts of
Congress,"
etc. These maps were received and approved by the Land
Department as maps of definite location. It follows that in fact
the line of definite location of the Atlantic and Pacific was
established, and maps thereof filed and approved, before any action
in that respect was taken by the Southern Pacific Company. There
never was a time, therefore, at which the grant of the Southern
Pacific could be said to have attached to these lands, and the
plausible argument based thereon, made by counsel in behalf of the
Southern Pacific Company, falls to the ground.
Again it is urged that, the grant to the Atlantic and Pacific
having been forfeited, there is noting now in the way of the
Southern Pacific's grant attaching to these lands; that in the
interpretation of rights under land grants, regard has always been
had by this Court to the intention of Congress; that it was the
intention of Congress that these lands should pass to some company
to aid in the construction of a railroad, either
Page 146 U. S. 604
the Atlantic and Pacific or the Southern Pacific; that they
cannot now be applied to aid in the construction of the former
company's road, and that therefore, to carry into effect the intent
of Congress, they should be applied to aid in the construction of
the latter company's line. We think this contention is erroneous
both as to the law and the intent of Congress. It was held in the
case of
Kansas Pacific Railway v. Dunmeyer, 113 U.
S. 629, that where a homestead right had attached to a
tract at the time of the definite location of the railway company's
line, which homestead was afterwards abandoned, the tract was
simply restored to the public domain, and did not pass to the
railway company under its grant; that the grant only attached to
lands which were the subject of grant at the time, and that the
company had no interest in the question as to what afterwards
became of a tract which was not public land at the time its grant
became fixed. On page
113 U. S. 644,
the Court observed:
"The right of the homestead having attached to the land, it was
excepted out of the grant as much as if in a deed it had been
excluded from the conveyance by metes and bounds."
The same doctrine was affirmed in
Hastings & Dakota
Railroad v. Whitney, 132 U. S. 357;
Sioux City &c. Land Co. v. Griffey, 143 U. S.
32;
Bardon v. Northern Pacific Railroad,
145 U. S. 535.
Neither can it fairly be said that it was the intent of Congress
that these lands should pass conditionally to the Southern Pacific
Company. Good faith must be imputed to Congress. It cannot be
supposed that Congress intended to give to the Southern Pacific
Company that which it had already given to the Atlantic and Pacific
Company. It knew that it had granted lands to the Atlantic and
Pacific for a road to the Pacific Ocean, and that that company was
then engaged in constructing its road, and proceeding with as much
rapidity as other Pacific companies had done. Within little over a
month from the date of this grant to the Southern Pacific Company,
and on April 20, 1871, it gave to the Atlantic and Pacific Company
authority to issue bonds secured by a mortgage on its road,
equipment, lands, franchises, privileges, etc. 17 Stat. 19, c. 33.
Congress therefore was expecting that the Atlantic
Page 146 U. S. 605
and Pacific Company would construct its road, and, with this
expectation, had no thought of giving to the Southern Pacific
Company that which it had already given to the Atlantic and Pacific
Company.
Further, as indicating the intent of Congress, reference may be
had to the first proviso to section 3 of the act of 1866, which, by
the terms of section 18 of that act and the act of 1871, becomes
one of the conditions of the grant to the Southern Pacific Company.
That proviso is:
"
Provided that if said route shall be found upon the
line of any other railroad route to aid in the construction of
which lands have been heretofore granted by the United States, as
far as the routes are upon the same general line, the amount of
land heretofore granted shall be deducted from the amount granted
by this act."
That proviso may not be technically and strictly applicable to
this case, in that a road crossing another may perhaps not be said
to be found upon the line of such other road or to be upon the same
general line, yet the import of this proviso is clear, to the
effect that Congress was not only not intending to give to one
company that which it had already given to another, but intended
that lands previously granted should be definitely excepted from
the later grant.
Not only that, but by section 9 of the original act, it was
provided
"that if the Atlantic and Pacific make any breach of the
conditions hereof, and allow the same to continue for upwards of
one year, then, in such case at any time hereafter, the United
States may do any and all acts and things which may be needful and
necessary to insure a speedy completion of the said road."
In other words, the intent of Congress was that this road to the
Pacific should be built; that if there was any delay on the part of
the Atlantic and Pacific Company, it might itself take all needful
and necessary measures to accomplish the building, and to that end,
of course, use all the lands it proposed to grant therefor. Can it
be supposed that this purpose of Congress was forgotten, or that
its intent was changed, when it made the grant to the Southern
Pacific, or that it had anything in contemplation other than that,
after the completion of the Atlantic and Pacific road and the
Page 146 U. S. 606
appropriation of the lands along its line to aid in that
construction, the Southern Pacific Company might, if it saw fit to
build a road from Tehachapa Pass to the Texas and Pacific Railroad,
obtain the remainder of the lands along that line?
Indeed, the intent of Congress in all railroad land grants, as
has been understood and declared by this Court again and again, is
that such grant shall operate at a fixed time, and shall take only
such lands as at that time are public lands, and therefore
grantable by Congress, and is never to be taken as a floating
authority to appropriate all tracts within the specified limits
which at any subsequent time may become public lands. The question
is asked, supposing the Atlantic and Pacific Company had never
located its line west of the Colorado River, would not these lands
have passed to the Southern Pacific Company under its grant? Very
likely that may be so. The language of the Southern Pacific
Company's grant is broad enough to include all lands along its
line, and, if the grant to the Atlantic and Pacific Company had
never taken effect, it may be that there is nothing which would
interfere with the passage of the title to the Southern Pacific
Company.
But that is a matter of result from the happening of something
neither intended nor expected. While it may have been within the
knowledge of Congress, as among the possibilities, that result was
not the purpose sought to be accomplished by this legislation. If
any other than the general rule as to land grants had been
intended, it is to be expected that such intention would have been
clearly expressed. So when intent is to be considered, the question
is whether Congress intended, the title having once vested in the
Atlantic and Pacific, that the Southern Pacific Company should
stand waiting to take the lands at some future time, however
distant, when the Atlantic and Pacific Company's title should
fail.
Again, there can be no question, under the authorities
heretofore cited, that if the act of forfeiture had not been passed
by Congress, the Atlantic and Pacific could yet construct its road,
and that, constructing it, its title to these lands would become
perfect. No power but that of Congress could interfere with this
right of the Atlantic and Pacific. No one but
Page 146 U. S. 607
the grantor can raise the question of a breach of a condition
subsequent. Congress, by the act of forfeiture of July 6, 1886,
determined what should become of the lands forfeited. It enacted
that they be restored to the public domain. The forfeiture was not
for the benefit of the Southern Pacific. It was not to enlarge its
grant as it stood prior to the act of forfeiture. It had given to
the Southern Pacific all that it had agreed to in its original
grant, and now, finding that the Atlantic and Pacific was guilty of
a breach of a condition subsequent, it elected to enforce a
forfeiture for that breach, and a forfeiture for its own
benefit.
Our conclusions, therefore, are that a valid and sufficient map
of definite location of its route from the Colorado River to the
Pacific Ocean was filed by the Atlantic and Pacific Company and
approved by the Secretary of the Interior; that by such act the
title to these lands passed, under the grant of 1866, to the
Atlantic and Pacific Company, and remained held by it subject to a
condition subsequent until the act of forfeiture of 1886; that by
that act of forfeiture, the title of the Atlantic and Pacific was
retaken by the general government, and retaken for its own benefit,
and not that of the Southern Pacific Company, and that the latter
company has no title of any kind to these lands.
The decrees of the circuit court must be reversed, and the
cases remanded, with instructions to enter decrees for the
plaintiff for the relief sought.
MR. JUSTICE FIELD, with whom concurred MR. JUSTICE GRAY,
dissenting.
I am not able to agree with the Court in its judgment in these
cases or in the reasons offered in its support.
The cases were fully and elaborately considered by the circuit
and district judges in the court below. 46 F. 683, 692. Their
opinions are not only able and convincing, but lead to conclusions
which seem to me consonant with justice and fair dealing. To my
sense of right there is something repugnant in any other conclusion
in view of the
Page 146 U. S. 608
inducements held out by the government and the work done and the
expenses incurred by the railroad company.
Congress desired to connect by a railway the states on the
Mississippi with the Pacific Coast, and for that purpose, by the
Act of July 27, 1866, created a corporation known as the Atlantic
and Pacific Railroad Company, and gave it a grant of lands to aid
in the construction of a railway between Springfield, in the State
of Missouri, and the Pacific Coast. 14 Stat. 292. c. 278. The
eighteenth section authorized the Southern Pacific Railroad
Company, a corporation under the laws of California, to connect
with the Atlantic and Pacific Railroad at such point near the
boundary line of California which it should deem most suitable for
a railroad line to San Francisco, and in consideration thereof, and
to aid in its construction, gave it grants of lands similar to
those which the Atlantic and Pacific Railroad Company had received,
and subject to the same conditions and limitations.
On the 3d of March, 1871, Congress passed an act to incorporate
the Texas and Pacific Railroad Company and to aid in the
construction of its road, and, for the purpose of connecting that
road with the City of San Francisco, it authorized, by its
twenty-third section, the Southern Pacific Railroad Company to
construct a line of railroad from a point at or near Tehachapa
Pass, by way of Los Angeles, to the Texas Pacific Railroad at or
near the Colorado River, with the same rights, grants, and
privileges, and subject to the same limitations, as those contained
in the grant by the Act of July 27, 1866, with a proviso
"that this section shall in no way affect or impair the rights,
present or prospective, of the Atlantic and Pacific Railroad
Company or any other railroad company."
On the 3d of April following, one month only after the passage
of this act, the Southern Pacific Company designated the line of
its road from Tehachapa Pass, by way of Los Angeles, to Fort Yuma,
on the Colorado River, on a map which it filed on that day in the
office of the Commissioner of the General Land Office. Afterwards
the Southern Pacific was amalgamated or consolidated with other
companies, the consolidated company being called the Southern
Pacific Railroad Company. It then proceeded to
Page 146 U. S. 609
build the railroad along the line designated from Tehachapa
Pass, by way of Los Angeles, to the Colorado River, and completed
the same within the time required by the act of Congress. Its
several sections were examined from time to time, and reported to
the President of the United States, by commissioners appointed by
him for that purpose, and the whole line was accepted by the
President, and patents of the United States for the greater part of
the lands thus earned were issued to the company. Ever since the
completion and acceptance of the road, the company has performed to
the satisfaction of the government all the services, such as
carrying the mails, transporting troops and supplies, in all
respects as required by the act of Congress, and the services have
been accepted by the United States.
The Atlantic and Pacific Railroad Company, subsequently to this
definite location of the Southern Pacific Company, and nearly a
year after the construction of its road had been commence, and on
March 12, 1872, filed in the office of the Secretary of the
Interior -- not the office of the Commissioner of the General Land
Office -- two maps of portions of the line of road in the State of
California, and some time afterwards filed maps of other portions
of its line, but it never constructed any portion of the road
authorized to be constructed by it in the State of California, and
for its failure in that respect Congress, on July 6, 1886, passed
an act declaring a forfeiture of the land in that state. The
proposed line of the Atlantic and Pacific Railroad, which was never
built, crosses the line of the road of the Southern Pacific
Company, which was built as stated.
The present suit is brought to cancel the patents issued to the
Southern Pacific Company, and, wherever there is any portion for
which a patent has not been issued, to annual its alleged
title.
The opinion of the majority of the Court proceeds upon the
ground that the grant to the Atlantic and Pacific Railroad Company,
though the road in aid of which it was granted was never
constructed and the grant was subsequently forfeited by the United
States, operated to divest the government of
Page 146 U. S. 610
the fee of such lands so completely that the grant to the
Southern Pacific Company to build its road could in no way be
carried out; that its action, although taken with the approval of
the officers of the government, and strictly in conformity with its
grant, gave nothing whatever to that company, and that the United
States are for that reason authorized to ask for the cancellation
of the patents and the surrender of the lands granted, necessarily
carrying with them the railroad and other works constructed by the
company. And this is prayed in the face of the evident intention of
Congress that the Southern Pacific Company should have these
identical lands, so far as the government had the right to grant
them, as its reward in part for building the road.
It is not denied or doubted, as counsel well observed, that the
Southern Pacific Company
"promptly, completely, in good faith, and to the satisfaction of
every department of the government having any concern with the
matter, constructed and equipped its road, put it into operation,
and placed in possession of the government every facility and
advantage sought by it in making the grants, and has thus fully
earned its entire reward, and yet, in the face of all this, the
government, by these suits, seeks to wrest these lands from the
company not because it wishes to apply them to some purpose of its
own to which they had been devoted prior to the grant, nor because
it needs them in order to enable it to fulfill some prior
engagement with other parties, but simply in order to restore them
to the public domain, where they were at the time of the grant, in
order that it may deal with them as its own absolute property, and
as it pleases."
The cases would thus seem to be destitute of any substantial
equity.
The opinion assumes that the grant to the Atlantic and Pacific
Company when its map of definite location was filed, though that
was after the concession to the Southern Pacific Company, took
effect and vested an absolute title to the lands designated in the
Atlantic and Pacific Company from its date, which could not be
affected by any subsequent events which would make the concession
to the Southern Pacific available. In support of that view, it
cites several decisions of the Court
Page 146 U. S. 611
in which it has been held that similar railroad grants were
grants
in praesenti, and operated only upon lands at the
time free from exceptions stated, such as lands to which a
preemption or homestead right has attached, or have been reserved
for special purposes, and that lands thus excepted or reserved do
not fall under the operation of the grants if subsequently the
cause of the original exception or reservation has ceased, but
remain as public or ungranted lands.
Such grants have been treated as grants
in praesenti in
determining controversies between parties as to the date of their
respective titles under the grants, or against conflicting grants.
They are grants
in praesenti, so as to cut off all
intervening claims except such as are expressly named, and if the
work in aid of which the grants are made is executed in accordance
with their provisions, the title of the grantees will take effect
as of their date, except as to specially reserved parcels. We do
not disagree with the majority of the Court on this point. It is
true also that lands excepted or reserved from such grants at their
date are not subsequently brought under their operation if the
cause or purpose of their exception ceases. They remain ungranted
lands. Such was the case of
Bardon v. Northern Pacific Railroad
Company, 145 U. S. 535. But
it is evident that such exceptions and reservations of one grant do
not apply and control a second grant unless such second grant is
specially stated to be within them. When the second grant in
question in this case was made, all the rights which the United
States had in the lands described therein passed to the Southern
Pacific Company, subject only to the rights specially reserved of
the first grantee, and released of all restrictions upon their use
except as thus designated. Until something was done under the first
grant toward its execution, it was competent for Congress to give
effect to other grants and to limit the extent of their
subordination.
Neither grants
in praesenti nor grants with special
exceptions or reservations have ever been held, that I am aware of,
to prohibit a second grant of the same lands, subject to the
condition that it shall not affect or impair any rights
Page 146 U. S. 612
under the elder grants. There can be no circumstances under
which such second conditional grant may not be made. Whether it
will ever become operative and pass the title to the lands
described will depend upon circumstances which cannot be stated
with certainty in advance. Many events may arise to defeat or limit
the operation of the first grant. It may be forfeited, or portions
of its lands may be surrendered, and new legislation, taken in
execution of the reserved power to alter, amend, or repeal the act
making the grant, may change the whole condition of the lands.
From these views it would seem that the questions arising in
this case should not be difficult of solution. Before anything was
done under the grant to the Atlantic and Pacific Railroad Company,
even to indicate the route of the road it would construct,
authority was issued by the government to the Southern Pacific
Company to build a road north from a point at or near Tehachapa
Pass, by way of Los Angeles, to the Texas and Pacific Railroad at
or near the Colorado River, with a proviso, however, that the
authority thus given should not in any respect impair the rights,
present or prospective, of the Atlantic and Pacific Railroad
Company or of any other railroad. Congress had power to confer such
authority and to make a grant for its execution. Surely Congress
can make a grant of lands which it owns or claims to own at any
time if it annex a condition that the grant shall not affect or
impair the rights of a previous grantee. It would, as it seems to
me, be an extravagant and utterly unwarranted assertion to say that
Congress, having made a grant for a railroad to run in one
direction, is thereby prohibited from making another grant for a
railroad to run in a different direction, if a condition is annexed
that the second grant shall not affect or impair the rights of the
first grantee. The questions, and the only questions, for
consideration in such a case would be first, what are the rights
thus reserved to which the second grant is subordinate?, and
second, have they been affected or impaired by the later grant? The
previous grant to the Atlantic and Pacific Railroad Company, made
six years before, did not stand in they way of Congress making the
conditional concession
Page 146 U. S. 613
to the Southern Pacific. If unlimited, it would have affected
the extent of the grant to the first company, but a limitation upon
its operation was placed by the proviso. No line of railroad had
been then defined or marked by the Atlantic and Pacific Railroad
Company. It might, so far as Congress saw, have selected a
different route from the one it did afterwards select. Congress
waited six years for that company to make a selection before it
made the concession to the Southern Pacific Company. The company
was not bound to wait indefinitely for the years to elapse before
moving in the enterprise it was to undertake, and to further which
Congress had afforded assistance. The condition attached to the
concession was not an exception from the grant of any lands that
the Atlantic and Pacific Railroad Company might claim under its
grant without performing its conditions. It merely rendered the
concession to the Southern Pacific Company subordinate and subject
to any rights that the Atlantic and Pacific Company may then have
acquired or might thereafter acquire under its grant upon the
performance of its conditions. What, then, were those rights,
present or prospective, which were reserved to the Atlantic and
Pacific Company? Plainly they were the right to construct a
railroad and telegraph to the Pacific Coast from the Colorado River
by the most practicable route, with a right of way two hundred feet
in width, and to use certain lands granted for that purpose to aid
in their construction, and, when constructed, the right to operate
the road and use the telegraph line. They were permissive rights,
and not compulsory. Have they been affected or impaired by the
concession to the Southern Pacific Company? In no respect whatever.
They were affected and impaired by the company's failure to perform
the conditions annexed to its grant, and in no other way, until its
forfeiture was declared. It never did anything toward a compliance
with its conditions except to file, in detached parts, what it
termed a map of the location of its road, six years after the date
of the grant and one year after the Southern Pacific Company had
located its road, under its concession, and commenced its
construction. Its rights, whether present or prospective, were
never invoked,
Page 146 U. S. 614
and in consequence nothing was ever obtained in virtue of them.
The building of another road in another direction by the Southern
Pacific Company under its concession did not therefore affect or
impair any rights of the Atlantic and Pacific, as none was ever
claimed or exercised by it. Had the company performed the
conditions of its grant and exercised its rights, it would have
taken the lands under the grant against any possible pretension of
the Southern Pacific Company; but having abandoned all such rights
by simply refusing to do anything, the Southern Pacific Company
rightly proceeded with its work and constructed its road. The grant
to it was a full conveyance of all the rights of the United States,
free from all restraints except as specially designated, and the
rights then reserved were never subsequently affected or impaired
by the Southern Pacific Company, and they were lost entirely by the
forfeiture of the grant.
The case, in a nutshell, is this: the grant to the Atlantic and
Pacific Railroad Company was indeed prior in point of time and of
right, and the grant to the Southern Pacific Railroad Company was
subordinate to the prior grant. But, when the prior grant was
forfeited by the failure of the Atlantic and Pacific Railroad
Company to perform its conditions, that grant fell off, and the
underlying grant to the Southern Pacific Railroad Company, all the
conditions of which had been performed, remained in full force and
effect.
I consider the principle involved in these cases as one of great
importance, more so than the value of the property, although that
runs into millions of dollars expended by the company upon the
encouragement of the government. But it is infinitely more
important that it should be established that the government and its
officers are bound by the same principles of justice in their
dealings which are held to govern the conduct of individuals.
In my opinion, the judgment of the court below should be
affirmed, and I am authorized to state that MR. JUSTICE GRAY
concurs with me in this dissent.