The Supreme Court of the State of Montana having decided
adversely to the plaintiff in error a claim of title to land under
an act of Congress, a federal question was thereby raised.
No preemption or homestead claim attaches to a tract of public
land until an entry in the local land office, and the ruling by the
state court that occupation and cultivation by the claimant created
a claim exempting the occupied land from passing to the railroad
company under its land grant is a decision on a matter of law open
to review in this Court.
The facts found below were not of themselves sufficient to
disturb the title of the railroad company under the grant from
Congress.
On April 23, 1892, defendant in error, as plaintiff, filed in
the district court of the County of Gallatin, Montana, his
complaint
Page 164 U. S. 384
against the railroad company to recover a sum of money paid as
the contract price of a tract of land conveyed by it to him. The
contract was alleged to have been made on January 16, 1886, by the
company, with Nathan Frost, who, in the same year transferred his
interest to John R. Foster, who, in 1888, in like manner conveyed
to the plaintiff. Payments by the terms of the contract were to be
made, and were made, on January 16 of the years 1886, 1887, 1888,
1889, 1890, and 1891. The complaint further alleged that the
railroad company did not have, and could not convey, any title to
the land; that in January, 1891, in certain proceedings in contest,
the Secretary of the Interior decided that the land did not pass
under the land grant to the railroad company, but was subject to
entry and patent under the general land laws of the United States,
and that during that year a patent was issued to the plaintiff.
The railroad company answered, setting up the Act of Congress of
July 2, 1864, c. 217, 13 Stat. 365, making to it a land grant of
twenty alternate sections per mile on each side of its road in the
territories of the United States; the filing on February 21, 1872,
in the office of the Commissioner of the General Land Office, of
its map of general route, as provided in section 6 of the act, the
like filing on July 6, 1882, of its line of definite location, the
construction of its road, that this land was not mineral, was free
from preemption and other claims, was in an odd-numbered section,
within forty miles of its line of general route and twenty miles of
its road as definitely located and constructed, and situated within
the Territory of Montana, and alleged that thereby it acquired full
title. It set forth in terms the contract of January 16, 1886, with
Nathan Frost, the various transfers by which, on January 15, 1888,
the plaintiff obtained title thereto, admitted the payments, and
alleged an execution and delivery to the plaintiff of a deed, in
conformity to the terms of the contract, and, further, that his
possession had never been disturbed or his title assailed or
impaired. It admitted that, at the time of the filing of the map of
definite location, one Horace F. Kelly claimed to be occupying and
cultivating the land, but denied that he had made any entry or
filing in the local land office.
Page 164 U. S. 385
It alleged that in 1888, Foster, plaintiff's immediate grantor,
contested the right of the railroad company to this land; that a
contest thereon was had in the land office, and finally on appeal
before the Secretary of the Interior, who held that Kelly's
cultivation and occupation created a claim which he could have
perfected under the public land laws, and therefore excepted the
land from the scope of the company's grant. It denied that a patent
had been issued to the plaintiff or to any one else, and alleged
that prior to plaintiff's purchase of the contract from Foster, he
knew of the claim that the land was not within the scope of the
company's land grant, and was not its property.
To this answer a demurrer was filed by the plaintiff, which was
sustained by the circuit court and a judgment rendered for the
plaintiff. Thereupon the case was taken to the supreme court of the
state, which affirmed the judgment, 13 Mont. 476, and then the
railroad company sued out this writ of error.
MR. JUSTICE BREWER, after stating the facts in the foregoing
language, delivered the opinion of the Court.
A motion is made to dismiss for lack of a federal question. The
contention is that the defendant disclosed in its answer a decision
of the Land Department, that it is bound by its own pleadings, and
that, having pleaded this decision of the Land Department, that
decision is final and conclusive until set aside in a direct
proceeding instituted for that purpose. This motion must be
overruled. The answer of the company alleged the congressional land
grant and the facts and circumstances which under that grant
created, as claimed, a title in it to the land. It is true it also
set up certain proceedings in the Land Department, but that was by
way of answer to the allegations in the complaint of a decision by
that department claimed by the plaintiff to be controlling, and
disclosed
Page 164 U. S. 386
in detail the facts upon which that decision was based and the
terms of the decision itself, in order to show that such decision
was ineffective to disturb the title which it took by virtue of the
land grant and the proceedings had thereunder. If the company had
relied upon this decision as its defense against the action and the
court had decided in favor of its validity, a different conclusion
might be reached. The judgment of the supreme court of the state
was adverse to the claim of title made by the company. It denied to
it the right which it asserted under the act of Congress, and a
federal question is therefore presented.
On the merits of the case, it may be observed that the burden of
the decision of the supreme court of the state is that, because the
Land Department had decided adversely to the claim of the railroad
company, and because no direct proceedings had been had to set
aside that decision, it was conclusive against the company. In this
we think the learned court erred. The facts set up in the answer in
reference to the land grant, the filing of the map of the line of
general route, and also that of definite location, the situation of
the land, and its freedom from record claims, were such as to
prima facie vest a title in the company. It is true it is
also disclosed by the answer that one Kelley was in occupation, or
at least cultivating the land at the time of the filing of the map
of definite location, and the decision of the Land Department as to
that fact undoubtedly concludes both parties. And if it be true as
matter of law that mere occupation of cultivation of the premises
at the time of the filing of the map of definite location,
unaccompanied by any filing of a claim in the land office then or
thereafter, excludes the tract from the operation of the land
grant, the decision of the Supreme Court of Montana was right. But
frequent decisions of this Court have been to the effect that no
preemption or homestead claim attaches to a tract until an entry in
the local land office. Thus, in the case of
Kansas Pacific
Railroad v. Dunmeyer, 113 U. S. 629,
113 U. S. 644,
Mr. Justice Miller, speaking for the Court, said:
"Of all the words in the English language, this word
Page 164 U. S. 387
'attached' was probably the best that could have been used. It
did not mean mere settlement, residence, or cultivation of the
land, but it meant a proceeding in the proper land office, by which
the inchoate right to the land was initiated. It meant that by such
a proceeding, a right of homestead had fastened to that land which
could ripen into a perfect title by future residence and
cultivation."
This language was quoted, and the decision reaffirmed, in
Hastings & Dakota Railroad v. Whitney, 132 U.
S. 357;
Whitney v. Taylor, 158 U. S.
85. In
Lansdale v. Daniels, 100 U.
S. 113,
100 U. S. 116,
it was ruled that
"such a notice of claim or declaratory statement is
indispensably necessary to give the claimant any standing as a
preemptor, the rule being that his settlement alone is not
sufficient for that purpose."
See also Maddox v. Burnham, 156 U.
S. 544. Now in this case, the allegations are that Kelly
never made any entry in the local land office, and the decision of
the Secretary of the Interior is based simply on the fact of
occupation and cultivation. And while the decision of that fact may
be conclusive between the parties, his ruling that such occupation
and cultivation created a claim exempting the land from the
operation of the land grant is a decision on a matter of law which
does not conclude the parties and which is open to review in the
courts.
In this connection, it may be borne in mind that the act of
Congress operated to pass the fee of the land to the company, and
this independently of the issue of a patent.
St. Paul &
Pacific Railroad v. Northern Pacific Railroad, 139 U. S.
1,
139 U. S. 6;
Deseret Salt Company v. Tarpey, 142 U.
S. 241. While it is alleged in the complaint that a
patent had been issued to the plaintiff, this fact is denied in the
answer, so that the case is presented of a mere decision of the
Secretary of the Interior that the plaintiff was entitled to a
patent, and not that of a patent already issued.
Though a patent had been issued, it would not follow that that
is conclusive in even an action at law, and that in all cases, some
direct proceeding to set aside the patent is necessary.
Burfenning v. Chicago, St. Paul &c. Railway,
163 U. S. 321, and
cases cited in the opinion.
Page 164 U. S. 388
There are other questions in this case, such as the significance
of an "expired filing," the omission in the Northern Pacific land
grant of the word "attached" in respect to preemption claims which
seems to have been deemed by this Court significant in the
construction of the Union Pacific and other land grants, the
question whether, after the filing of the map of general route on
February 21, 1872, any rights of preemption or homestead could be
acquired in this land, and also whether, as plaintiff had not been
disturbed in his possession and made his payments with notice of
all the facts, he must not be held to have made such payments
voluntarily, or only under a mistake of law, and so be precluded
from recovering. But as none of these matters were considered by
the supreme court of the state, and are not noticed by counsel for
defendant in error, we deem it unwise to make any observations
thereon, leaving them for consideration in the future progress of
the case.
For the reasons above indicated, because the decision of the
Land Department was only on matters of fact, and did not conclude
the law of the case, and because such facts so found were not of
themselves sufficient to disturb the title of the railroad company,
the judgment is
Reversed, and the case remanded to the supreme court of the
state for further proceedings not inconsistent with this
opinion.
