By the Act of July 2, 1864, 13 Stat. 365, c. 217, Congress
granted lands to the Northern Pacific Railroad Company to aid in
the construction of a railroad and telegraph line from a point on
Lake Superior in Wisconsin or Minnesota to some point on Puget
Sound, with a branch via the valley of the Columbia River to a
point at or near Portland in the State of Oregon. The grant was
of
"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, 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 definitely fixed,
and a plat thereof filed in the office of the
Page 176 U. S. 29
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."
In March, 1865, the president of that company filed in the Land
Department a map which if of value for any purpose was only a map
of "general route," not one of definite location between Wallula
and Portland. That map was not accepted. By Act of July 25, 1866,
14 Stat. 239, c. 242, Congress made a grant of land in aid of the
construction of a railroad and telegraph line between Portland,
Oregon, and the Central Pacific Railroad in California. That grant
was in the usual terms employed in such acts. Subsequently the
benefit of that grant as to the part of the road to be constructed
in Oregon was conferred upon the Oregon Central Railroad Company.
The lands here in dispute, whether place or indemnity, were within
the limits of the grant of 1866. The entire line of road of the
Oregon and California Railroad Company, which was the successor of
the Oregon Central Railroad Company, was fully constructed and duly
accepted by the President, and at the time this suit was begun was
being operated and had been continuously operated by that company.
The Oregon Company filed its map of definite location in 1870, and
it was accepted by the Land Department. By the Act of September 29,
1890, 26 Stat. 496, c. 1040, all lands theretofore granted to any
state or corporation to aid in the construction of a railroad
opposite to or coterminous with the portion of any such railroad
not then completed and in operation, for the construction of which
such lands were granted, were forfeited to the United States. There
never was any withdrawal of indemnity lands on the proposed line of
the Northern Pacific Railroad Company between Wallula and Portland,
nor was there any definite location or construction of its road
opposite to the lands in suit.
Held,
(1) That nothing in the act of 1864 stood in the way of
Congress' subsequently granting to other railroad corporations the
privilege of earning any lands that might be embraced within the
general route of the Northern Pacific Railroad.
(2) That as the grant contained in that act did not include any
lands that had been reserved, sold, granted or otherwise
appropriated at the time the line of the Northern Pacific Railroad
was "definitely fixed," as the route of the Northern Pacific
Railroad had not been definitely fixed at the time the Act of July
25, 1866, was passed, or when the line of the Oregon Company was
definitely located, as the lands in dispute are within the limits
of the grant contained in the act of 1866, as the route of the
Oregon Railroad was definitely fixed at least when the map showing
that route was accepted by the Secretary of the Interior on the
29th day of January, 1870, the Northern Pacific Railroad Company
having done
Page 176 U. S. 30
nothing prior to the latter date except to file the Perham map
of 1865, and as prior to the forfeiture Act of September 29, 1890,
there had not been any definite location of the Northern Pacific
Railroad opposite the lands in dispute, there is no escape from the
conclusion that these lands were lawfully earned by the Oregon
Company and were rightfully patented to it. Of course, if the route
of the Northern Pacific road had been definitely located before the
act of 1890 was passed, and had embraced the lands in dispute,
different questions would have been presented.
The case is stated in the opinion.
MR. JUSTICE HARLAN delivered the opinion of the Court.
This suit involves the title to a large body of lands in the
State of Oregon, covered by patents issued by the United States to
the Oregon and California Railroad Company, a corporation organized
under the laws of Oregon. Its object is to obtain a decree
cancelling those patents as well as certain conveyances made by the
company.
The suit was brought by the Attorney General in 1893, under the
authority of the Act of March 3, 1887, entitled
"An Act to Provide for the Adjustment of Land Grants Made by
Congress To Aid in the Construction of Railroads, and for the
Forfeiture of Unearned Lands, and for Other Purposes."
By that act, the Secretary of the Interior was directed to
adjust, in accordance with the decisions of this Court, each of the
railroad land grants made by Congress to aid in the construction of
railroads and theretofore unadjusted. Its second section provided
that
"if it shall appear, upon the completion of such adjustments
respectfully [respectively], or sooner, that lands have been, from
any cause, heretofore erroneously certified or patented, by the
United States, to or for the use or benefit of any company claiming
by, through, or under grant from the United States to aid in the
construction of a railroad, it shall be the duty of the Secretary
of the Interior to thereupon
Page 176 U. S. 31
demand from such company a relinquishment or reconveyance to the
United States of all such lands, whether within granted or
indemnity limits, and if such company shall neglect or fail to so
reconvey such lands to the United States within ninety days after
the aforesaid demand shall have been made, it shall thereupon be
the duty of the Attorney General to commence and prosecute in the
proper courts the necessary proceedings to cancel all patents,
certification, or other evidence of title heretofore issued for
such lands and to restore the title thereof to the United
States."
24 Stat. 556, c. 376.
The defendants demurred to the bill for want of equity, but the
demurrer was overruled. 57 F. 890. They then filed a joint and
several answer, and proofs were taken by the parties. By the decree
of the circuit court, patents of May 9, 1871, July 12, 1871, June
22, 1871, and June 18, 1877, purporting to convey to the Oregon and
California Railroad Company the lands in dispute (which are fully
described by metes and bounds in the decree) were cancelled as
being null and void. By the same decree, a warranty deed of
February 26, 1880, to the defendant John A. Hurlburt, a deed of
November 5, 1879, to Jacob Goldstrap -- each of which deeds were
executed by the railroad company -- a deed by Goldstrap to
Sylvester Evans, and a deed from the latter to Thomas L. Evans of
July 13, 1883, were also cancelled as null and void. 69 F. 899. The
case was then carried to the circuit court of appeals, where the
decree of the circuit court was reversed, with directions to
dismiss the bill. 77 F. 67.
The facts necessary to a clear understanding of the questions
raised by the pleadings are as follows:
By an Act approved July 25, 1866, Congress authorized the
California & Oregon Railroad Company, a California corporation,
and such company as the Legislature of Oregon should thereafter
designate, to lay out, locate, construct, finish, and maintain a
railroad and telegraph line between Portland, Oregon, and the
Central Pacific Railroad in California, the Oregon company to
construct that part of the line in Oregon, beginning at Portland
and running thence southerly through the Willamette, Umpqua, and
Rogue River Valleys to the
Page 176 U. S. 32
southern boundary of Oregon, where it was to connect with the
part constructed in California by the California corporation. 14
Stat. 239, 240, 241, c. 242.
For the purpose of aiding in the construction of such railroad
and telegraph line, and to secure the safe and speedy
transportation of the mails, troops, munitions of war, and public
stores over the line of the railroad, every alternate section of
public land, not mineral, designated by odd numbers, to the amount
of twenty alternate sections per mile (ten on each side) of the
railroad line, were granted to those companies, their successors
and assigns. If the alternate sections or parts of sections so
granted were found to have been "granted, sold, reserved, occupied
by homestead settlers, preempted, or otherwise disposed of," other
lands, designated as aforesaid, were to be selected by the
companies in lieu thereof, under the direction of the Secretary of
the Interior, in alternate sections designated by odd numbers,
nearest to and not more than ten miles beyond the limits of the
first-named alternate sections. It was made the duty of the
Secretary of the Interior, as soon as the companies, or either of
them, filed in his office a map of the survey of the railroad or
any portion thereof, not less than sixty continuous miles from
either terminus, to withdraw from sale the lands granted on either
side of the railroad as far as located and within the limits
specified. § 2.
Whenever the companies, or either of them, had twenty or more
consecutive miles of any portion of the railroad and telegraph line
ready for service, it became the duty of the President to appoint
three commissioners to examine the same, and when it appeared that
twenty consecutive miles of railroad and telegraph had been
completed and equipped in all respects as required, the
commissioners were to report the fact under oath to the President,
whereupon patents were to issue for the lands granted, to the
extent of and conterminous with the completed section of the
railroad and telegraph line, and from time to time whenever twenty
or more consecutive miles of road and telegraph were completed and
equipped, patents were to be issued upon the report of the
commissioners, and so on until the entire railroad and telegraph
authorized were constructed. § 4.
Page 176 U. S. 33
The companies were required to file their assent to the act in
the Department of the Interior within one year after its passage,
and complete the first section of twenty miles of the railroad and
telegraph within two years, and at least twenty miles in each year
thereafter, and the whole on or before the first day of July, 1875;
the railroad to be of the same gauge as the Central Pacific
Railroad of California, and connect therewith. § 6.
In case the companies failed to comply with the terms and
conditions required by not filing their assent thereto as provided
in section 6 of the act, or by not completing the same as provided
in that section, the act was to be null and void, and all the lands
not conveyed by patent to the company or companies, as the case
might be at the date of such failure, should revert to the United
States, and if the road and telegraph line were not kept in repair
and fit for use after the same were completed, Congress could pass
an act to put them in repair and use and direct the income
therefrom to be devoted to the United States to repay all
expenditures caused by the default or neglect of the companies or
either of them, or fix pecuniary responsibility not exceeding the
value of the lands granted by the act. § 8.
It appears from the bill filed by the United States that, by
joint resolution of October 20, 1868, the Legislature of Oregon
designated the Oregon Central Railroad Company to receive the
privileges and franchises and to perform the duties mentioned in
the Act of July 25, 1866; that, on the 29th day of October, 1869,
that company, having previously accepted the grant contained in
that act, filed with the Secretary of the Interior its map of
"definite location" opposite to the lands in suit; that this map
was accepted by the Secretary on January 29, 1870; that in
February, 1870, the lands in dispute were all withdrawn in
pursuance of orders issued by that officer; that on or about April
4, 1870, the Oregon and California Railroad Company, a corporation
of Oregon, became the successor and assignee of the Oregon Central
Railroad Company; that the road of that company was duly
constructed opposite the lands in dispute within the time
limited
Page 176 U. S. 34
by law for the completion of that portion, and that two sections
of twenty miles each were examined by commissioners appointed by
the President, and, their report having been accepted by him,
patents for the lands conterminous with those sections were ordered
to be and were issued.
The bill contained these averments:
"Your orator shows that all the lands hereinbefore described are
within the limits of the grant as prescribed in said Act of
July 25, 1866, whether place or indemnity. And your orator
shows that
the entire line of railroad of the said Oregon and
California Railroad Company has been fully constructed and been
duly accepted by the President of the United States after due
reports by commissioners on the several sections thereof, and has
been continuously, and still is, operated by said company, but
a portion of said road, to-wit, one hundred and sixty-three miles,
was constructed after July 1, 1880."
Referring to the conveyances made by the railroad company to the
individual defendants, the bill admits that the purchasers went
into actual possession, made valuable and permanent improvements,
and remained thereafter in possession. It then alleges that
"John A. Hurlburt and Thomas L. Evans each claim the title to
said lands respectively in fee simple, and your orator concedes
that they were severally purchased and granted from the said Oregon
and California Railroad Company in good faith for value, relying on
the apparent title to said lands under said patent from orator to
said railroad company, and without actual notice of any defect in
the title of said company to said lands, as set forth in this bill.
But orator insists that they were chargeable with constructive
notice of the several acts of Congress, and that, under the said
acts of Congress and the acts and doings of the said railroad
company, no title could pass to said Hurlburt and Evans, and that
said patent should be cancelled as to them, as well as to the
grantee therein, the said Oregon and California Railroad
Company."
In view of these facts, if the case depended alone on the Act of
July 25, 1866, the title of the defendants to these lands, as
against the United States, could not be questioned.
The government, however, has insisted in its bill that the
Page 176 U. S. 35
issuing of the patents to the Oregon and California Railroad
Company was without authority of law. This contention rests upon
the assumption that the lands so patented -- although within the
limits of the grant contained in the Act of July 25, 1866, and
within the line of the Oregon Company as definitely located -- were
excluded from that grant because included in the grant previously
made to the Northern Pacific Railroad Company by the Act of July 2,
1864, 13 Stat. 365, c. 217, in which case it is insisted that they
were forfeited to the United States by the Act of September 29,
1890, and should be so adjudged.
By the last-named act, it was, among other things, provided:
"§ 1. That there is hereby forfeited to the United States, and
the United States hereby resumes the title thereto, all lands
heretofore granted to any state or to any corporation to aid in the
construction of a railroad opposite to and conterminous with the
portion of any such railroad not now completed and in operation,
for the construction or benefit of which such lands were granted,
and all such lands are declared to be a part of the public domain;
Provided, That this act shall not be construed as
forfeiting the right of way or station grounds of any railroad
company heretofore granted."
"§ 6. That no lands declared forfeited to the United States by
this act shall by reason of such forfeiture inure to the benefit of
any state or corporation to which lands may have been granted by
Congress, except as herein otherwise provided, nor shall this act
be construed to enlarge the area of land originally covered by any
such grant or to confer any right upon any state, corporation, or
person to lands which were excepted from such grant. Nor shall the
moiety of the lands granted to any railroad company on account of a
main and a branch line appertaining to uncompleted road, and hereby
forfeited, within the conflicting limits of the grants for such
main and branch lines, when but one of such lines has been
completed, inure by virtue of the forfeiture hereby declared to the
benefit of the completed line."
26 Stat. 496, c. 1040.
The contention of the government renders it necessary to
Page 176 U. S. 36
ascertain what interest, if any, was acquired by the Northern
Pacific Railroad Company in these lands by virtue of the Act of
July 2, 1864.
By that act, the Northern Pacific Railroad Company was created a
corporation, with authority to build a railroad and telegraph line
from a point on Lake Superior in Wisconsin or Minnesota, westerly
by the most eligible route, as should be determined by the company,
on a line north of the 45th degree of latitude, to some point on
Puget Sound,
"with a branch via the valley of the Columbia River to a point
at or near Portland, in the State of Oregon, leaving the main trunk
line at the most suitable place, not more than three hundred miles
from its western terminus."
The grant to that company was of
"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, 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
definitely fixed and 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."
By other sections of the act it was provided:
"§ 6. 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, or preemption before or after they are
surveyed,
Page 176 U. S. 37
except by said company, as provided in this act; but the
provisions of the Act of September, eighteen hundred and forty-one,
granting preemption rights, and the acts amendatory thereof, and of
the act entitled 'An Act To Secure Homesteads to Actual Settlers on
the Public Domain,' approved May twenty, eighteen hundred and
sixty-two, shall be, and the same are hereby, extended to all other
lands on the line of said road when surveyed, excepting those
hereby granted to said company. And the reserved alternate sections
shall not be sold by the government at a price less than two
dollars and fifty cents per acre when offered for sale."
"§ 8. That each and every grant, right, and privilege herein are
so made and given to, and accepted by, said Northern Pacific
Railroad Company, upon and subject to the following conditions,
namely: that the said company shall commence the work on said road
within two years from the approval of this act by the President,
and shall complete not less than fifty miles per year after the
second year, and shall construct, equip, furnish, and complete the
whole road by the fourth day of July, anno Domini eighteen hundred
and seventy-six."
By section twenty, it was declared that "Congress may at any
time, having due regard for the rights of said Northern Pacific
Railroad Company, add to, alter, amend, or repeal this act." 13
Stat. 365, c. 217.
On the 6th day of March, 1865, Josiah Perham, president of the
Northern Pacific Railroad Company, addressed to Mr. Usher, then
Secretary of the Interior, the following communication:
"Under authority from the board of directors of the Northern
Pacific Railroad Company, I have designated on the accompanying map
in red ink the general line of their railroad from a point on Lake
Superior, in the State of Wisconsin, to a point on Puget Sound, in
Washington Territory, via the Columbia River, adopted by said
company as the line of said railroad, subject only to such
variations as may be found necessary after more specific surveys,
and I respectfully ask that the same may be filed in the office of
the Commissioner of the General Land Office, together with a copy
of the charter and organization of said company, and that, under
your directions, the lands granted to said company
Page 176 U. S. 38
may be marked and withdrawn from sale in conformity to law."
Under date of March 9, 1865, Secretary Usher wrote to the
Commissioner of the General Land Office as follows:
"Herewith I transmit a map upon which the 'general line' of the
Northern Pacific Railroad, as adopted by the board of directors of
that railroad company, is delineated; also a copy of the letter of
the president of said company, dated the sixth instant, requesting
that the granted lands along said line be withdrawn from market. In
view of the provisions of the third and sixth sections of the Act
of Congress approved July 2, 1864, should you perceive no
objection, I think that the odd-numbered sections along the line
for ten miles in width on each side in Minnesota and Wisconsin, and
for twenty miles in width on each side along that part of the line
extending through the territories westward to Puget Sound, may be
withdrawn as requested, as preliminary to the final survey and
location of said railroad. The even-numbered sections along the
line will, however, be subject to disposal by the United States, as
provided in the sixth section of said act of Congress."
No immediate reply seems to have been made to the letter of
Secretary Usher. But on June 22, 1865, Mr. Wilson, Commissioner of
the General Land Office, addressed to Mr. Harlan, than Secretary of
the Interior, a communication in which he referred to the above
letter of Secretary Usher, and in which he assigned many reasons
why the Perham map was wholly inadequate for the purposes intended
to be accomplished by it -- namely, the withdrawal for the benefit
of the Northern Pacific Railroad Company of all the public lands
within the exterior lines indicated by that map. Among other things
Mr. Wilson said in his communication:
"Of course, no withdrawal can now be made on account of the road
in the region of country extending across that part of the
continent between the west boundary of Minnesota to the eastern
surveys of Washington Territory, because over that territory the
lines of the public surveys have not yet been established. In this
extended locality, the withdrawal should only be ordered as the
public surveys are advanced and survey
Page 176 U. S. 39
of railroad established, in like manner as indicated under first
head. A general withdrawal upon conjectural or uncertain basis
might result in shutting out from settlement large bodies of land
which an actual survey would show not within the grant, while lands
would be omitted from the withdrawals which the survey might
require to be included. Then, it is not sound policy nor is there
any warrant in our land legislation for doing any act the tendency
of which would give preference to satisfy a grant on such a
stupendous scale as this, while individual claims under our general
system of land laws, homestead, preemption, and sales would be
unaided by any such preliminary discriminating proceeding. The
result of a premature withdrawal on uncertain basis would be unjust
to the pioneer settler, detrimental to the public interests in
arresting the progress of settlement and disposal in that direction
of the public domain, and to that extent checking the growth and
prosperity of our frontier, and that too in the vicinity of a
colonial dependence of a powerful nation; would be a prejudice to
the interest of the railroad grant itself in excluding settlers and
immigrants, whose labor and means would enhance the value of such
lands as in the ordinary progressive operations of the land system
would in due time fall to the grant. The land system should be so
administered that all the different acts of land legislation may be
at the same time in full operation, giving precedence to no one law
over another, unless where the term of the law indicate the public
will to be otherwise, leaving corporate or other grantees and
individuals respectively to have the benefit of their superior
diligence in establishing and completing their several claims
according to law. For these considerations, this office declines
ordering a withdrawal until authenticated maps of the actual survey
of the several portions of the route shall be successively filed
from time to time to completion, showing the connection of said
portions with the lines of the public surveys, yet respectfully
submits the foregoing considerations for such directions as the
Secretary may be pleased to give in the premises for the government
of this office. "
Page 176 U. S. 40
On the 10th day of April, 1869, Congress passed a joint
resolution granting a right of way for the construction of a
railroad from a point at or near Portland, Oregon, to a point west
of the Cascade mountains in Washington Territory. That resolution
provided:
"That the Northern Pacific Railroad Company be, and hereby is,
authorized to extend its branch line from a point at or near
Portland, Oregon, to some suitable point on Puget Sound to be
determined by said company, and also to connect the same with its
main line west of the Cascade Mountains, in the Territory of
Washington; said extension being subject to all the conditions and
provisions, and said company in respect thereto being entitled to
all the rights and privileges conferred by the act incorporating
said company, and all acts additional to and amendatory thereof;
Provided, That said company shall not be entitled to any
subsidy in money, bonds, or additional lands of the United States
in respect to said extension of its branch line as aforesaid except
such lands as may be included in the right of way on the line of
such extension as it may be located:
And provided,
further, That at least twenty-five miles of said extension
shall be constructed before the second day of July, eighteen
hundred and seventy-one, and forty miles per year thereafter until
the whole of said extension shall be completed."
16 Stat. 57. No action was taken under that resolution, because
it contained no grant of lands, and it is not contended that it has
any material bearing on this case. It is referred to merely as part
of the history of the grant to the Northern Pacific Railroad.
After the map of the definite location of the Oregon Company had
been filed and accepted -- namely, on the 31st of May, 1870 --
Congress passed a joint resolution authorizing the Northern Pacific
Railroad Company to issue bonds to aid in the construction and
equipment of its road,
"and to secure the same by mortgage on its property and rights
of property of all kinds and descriptions, real, personal, and
mixed, including its franchise as a corporation . . . and also to
locate and construct, under the provisions and with the privileges,
grants, and duties provided for in its act of incorporation, its
main
Page 176 U. S. 41
road to some point on Puget Sound via the valley of the Columbia
River, with the right to locate and construct its branch from some
convenient point on its main trunk line across the Cascade
Mountains to Puget Sound, and in the event of there not being in
any state or territory in which said main line or branch may be
located at the time of the final location thereof, the amount of
lands per mile granted by Congress to said company, within the
limits prescribed by its charter, then said company shall be
entitled, under the directions of the Secretary of the Interior, to
receive so many sections of land belonging to the United States,
and designated by odd numbers, in such state or territory, within
ten miles on each side of said road, beyond the limits prescribed
in said charter, as will make up such deficiency, on said main line
or branch, except mineral and other lands as excepted in the
charter of said company of 1864, to the amount of the lands that
have been granted, sold, reserved, occupied by homestead settlers,
preempted, or otherwise disposed of subsequent to the passage of
the Act of July 2, 1864. And that twenty-five miles of said main
line between its western terminus and the City of Portland, in the
State of Oregon, shall be completed by the first day of January,
anno Domini eighteen hundred and seventy-two, and forty miles of
the remaining portion thereof each year thereafter, until the whole
shall be completed between said points."
16 Stat. 378. As said by Mr. Justice Lamar when Secretary of the
Interior:
"By this resolution, the designation of the lines of the road
was changed; that which by the granting act [July 2, 1864] was
known as the branch line (via the valley of the Columbia River to a
point at or near Portland, in the State of Oregon) was changed to
main road or main line, and that which had been designated as main
line (crossing the Cascade Mountains to Puget Sound) was changed to
branch line."
6 L.D. 400;
United States v. Northern Pacific Railroad
Co., 152 U. S. 284,
152 U. S.
299.
On the 4th day of August, 1870, two maps constituting a map of
general route of the Northern Pacific Railroad Company were
presented to the Secretary of the Interior. The bill alleged that
those maps designated a route following the
Page 176 U. S. 42
Columbia River from Wallula, Washington Territory, to a point on
the north side of that river opposite Portland, Oregon, and that
the Secretary of the Interior, on the 13th day of August, 1870, in
due form accepted them and directed the withdrawal of lands
opposite that line. Withdrawals were accordingly made August 13,
1870, and October 27, 1870, and they embraced the lands here in
controversy. The bill referred to these maps as maps of "general
route," but in an amended bill the government reserved the right to
insist, if it should be thereafter advised to do so, that the map
filed August 4, 1870, and the one filed March 6, 1865, "were maps
of definite location of said Northern Pacific Railroad of its line
from Wallula Junction to Portland, Oregon."
There never was any withdrawal of indemnity lands on the
proposed line between Wallula and Portland, nor any
definite
location or construction of the road of the Northern Pacific
Railroad Company
opposite to the lands in suit.
Proceeding to the consideration of the case upon its merits, we
observe that many questions of difficulty and importance have been
discussed by learned counsel both at the bar and in their printed
arguments, which we do not deem it necessary to determine. In our
judgment, the case is within a very narrow compass.
What was the extent of the grant of public lands made to the
Northern Pacific Railroad Company by the Act of July 2, 1864? That
grant did not embrace all the odd-numbered sections within the
exterior lines of any general route that might have been adopted by
the company, nor all within the forty miles in width that might
have been surveyed under the order of the President (§ 6) on each
side of the entire line of the road after such general route had
been designated. It was in the nature of a "float," no right or
title to any particular sections becoming certain until a definite
location of route.
Missouri, Kansas & Texas Railway v.
Kansas Pac. Railway, 97 U. S. 491;
Grinnell v. Railroad Co., 103 U.
S. 739,
103 U. S. 742;
Van Wyck v. Knevals, 106 U. S. 360,
106 U. S. 366;
Kansas Pacific Railway v. Dunmeyer, 113 U.
S. 629,
113 U. S. 634;
Wisconsin Central Railroad v. Price County, 133 U.
S. 496;
Deseret
Page 176 U. S. 43
Salt Co. v. Tarpey, 142 U. S. 241;
Sioux City Land Co. v. Griffey, 143 U. S.
32,
143 U. S. 38;
United States v. Southern Pacific Railroad, 146 U.
S. 570,
146 U. S. 594;
Menotti v. Dillon, 167 U. S. 703,
167 U. S. 719;
Southern Pacific Railroad v. United States, 168 U. S.
1.
In
Buttz v. Northern Pacific Railroad, 119 U. S.
55,
119 U. S. 71-72,
this Court, speaking by Mr. Justice Field, referred to the act of
1864 and said that it contemplated
"the filing by the company, in the office of the Commissioner of
the General 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. . . . Nor is
there anything inconsistent with this view of the sixth section as
to the general route, in the clause in the third section making the
grant
operative only upon such odd sections as have
not been reserved, sold, granted, or otherwise
appropriated, and to which preemption and other rights and claims
have not attached, when a map of the definite location has been
filed."
In
United States v. Northern Pacific Railroad Company,
152 U. S. 284,
152 U. S. 296,
it was held that
"the act of 1864 granted to the Northern Pacific Railroad
Company
only public land to which the United States had
full title, not reserved, sold, granted, or otherwise appropriated,
and free from preemption or other claims or rights
at the
time its line of road was
definitely fixed and a plat
thereof filed in the office of the Commissioner of the General Land
Office."
Subsequently in
Northern Pacific Railroad v. Sanders,
166 U. S. 620,
166 U. S. 629,
it was said that
"the Act of July 2, 1864, under which the railroad company
claims title,
excluded from the grant made by it all lands
that were
not, at the time the line of the road was definitely
fixed, free from preemption or other claims or rights."
If, therefore, the Perham map of 1865 were conceded for the
purposes of the present discussion to have been sufficient as a map
of "general route" -- and nothing more can possibly be claimed for
it -- these lands could not be regarded as having
Page 176 U. S. 44
been brought by that map (even if it had been accepted) within
the grant to the Northern Pacific Railroad Company, and thereby
have become so segregated from the public domain as to preclude the
possibility of their being earned by other railroad companies under
statutes enacted by Congress after the filing of that map and
before any definite location by the company of its line.
There are some general expressions in
Buttz v. Northern
Pacific Railroad, above cited, which, counsel insists,
indicate a different view. In that case, Mr. Justice Field said
that when the general route of the Northern Pacific Railroad was
fixed and information thereof given to the Land Department by
filing the map of such route,
"
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."
This language was too broad if it is construed to express the
thought that public lands, when within the exterior lines of a
"general route," are "appropriated" from the time the map of such
route is filed, so as to prevent them from being granted by
Congress to, and from being earned by, another railroad corporation
prior to the filing of a map of definite location by the company
designating such general route. In
Northern Pacific Railroad v.
Sanders, 166 U. S. 620,
166 U. S.
634-636, this Court, referring to the Act of July 2,
1864, said:
"The company acquired, by fixing its general route, only an
inchoate right to the odd-numbered sections granted by Congress,
and no right attached to any specific section until the road was
definitely located and the map thereof filed and accepted. Until
such definite location, it was competent for Congress to dispose of
the public lands on the general route of the road as it saw proper.
Provision for the indemnification of the company in such an
emergency was made by a clause in the act of 1864 providing that
wherever, prior to the date of definite location,"
"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
Page 176 U. S. 45
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 such alternate sections."
"13 Stat. 368. Hence it was said in
Barden v. Northern
Pacific Railroad Company, 154 U. S. 288,
154 U. S.
320, in which case the act of 1864 was construed, that
the privilege of exploring for mineral lands was in full force at
the time of the location of the definite line of the road, and was
a right reserved and excepted out of the grant at that time."
In the same case it was also observed:
"Much was said at the bar as to the decision of this Court in
Buttz v. Northern Pacific Railroad, 119 U. S.
55. On one side it is said that that case construes the
sixth section of the act of 1864 as excluding the possibility of
any right's being acquired adversely to the railroad company to an
odd-numbered section embraced by the exterior lines of the general
route after that route had been established. On the other side it
is contended that the only point necessary to be determined, and
the only one judicially determined in that case, was that the
defendant could not initiate a preemption right to the land there
in dispute so long as the Indian title referred to in the opinion
was unextinguished. Without stopping to examine these contentions,
it is sufficient to say that the
Buttz case involved no
inquiry as to the respective rights of the railroad company under
the act of 1864 and of parties making applications in due form
prior to the definite location of its road to purchase lands as
mineral lands that were within the exterior lines of its general
route. Mr. Justice Field delivered the opinion in the
Buttz case, and, speaking for the Court in
Barden v.
Northern Pacific Railroad Company, above cited, stated that
the grant in that act excepted the privilege of exploring for
mineral lands. For the reasons stated, we adjudge that the lands in
question were excluded from the grant of 1864 by reason of the
pendency of record at the time of the definite location of the
plaintiff's road, of application to purchase them as mineral lands,
such applications being in the form prescribed by the acts of
Congress that related to such lands and undetermined when the
company filed its map of definite location. "
Page 176 U. S. 46
We take it, then, to be indisputable that even if the Perham map
of 1865 were regarded as a sufficient map of the "general route" of
the Northern Pacific Railroad, and not, to use the language of
Judge Ross in this case, a mere sketch or diagram unauthenticated
by any engineer or officer charged with the duty of designating
such a route, nothing stood in the way of Congress' granting to
another railroad company any lands within the exterior lines of
that route by a statute passed after such map was filed in the Land
Department and before a definite location of the Northern Pacific
Railroad. Such a statute was that of July 25, 1866, granting lands
to aid in the construction of a railroad from the Central Pacific
Railroad in California to Portland, Oregon. That the lands here in
dispute -- even if within the general route of the Northern Pacific
Railroad as defined by the Perham map of 1865 -- are within the
exterior limits of the grant to the Oregon Company, contained in
the subsequent act of 1866, is expressly averred in the bill filed
by the United States.
Upon the question whether it was within the power of Congress to
have granted to the Oregon Company in 1866 lands embraced within
the exterior lines of the general route as defined by the Perham
map of 1865, reference need only be made to
United States v.
Union Pacific Railway, 160 U. S. 1,
160 U. S. 33, and
Menotti v. Dillon, 167 U. S. 703,
167 U. S.
719-720.
In
Menotti v. Dillon, the principal question was as to
the rights acquired by a railroad company in virtue of its having
filed its map of general route and the withdrawal by executive
order of certain lands within the exterior lines of that route from
preemption, private entry, and sale -- all before the passage of a
subsequent act under which one of the parties claimed title to the
land in dispute, the other claiming under the railroad company.
This Court said:
"It is said that the railroad company filed its map of general
route on the 8th day of December, 1864, and that, these lands
having been withdrawn from preemption, private entry, and sale by
the executive order of January 30, 1865, they were not embraced by
the act of 1866. In our opinion, this is not a proper
interpretation of that act. The proviso of the first section
distinctly indicates
Page 176 U. S. 47
certain cases to which the act should not apply; and, distinctly
excluding those cases, but no others, from its operation, the act
in express words confirmed to the state 'in all cases' lands which
the state had theretofore selected in satisfaction of any grant by
Congress and sold to purchasers in good faith under its laws. No
exception is made of lands which, at the date of the passage of the
act, were withdrawn from preemption, private entry, and sale
pursuant to the filing by the railroad company of its map of
general route. And the court should not construe the act as
excluding lands in that condition unless it is prepared to hold
that Congress had no power to confirm to the state lands which at
the time, were simply withdrawn from preemption, private entry, or
sale for railroad purposes. We cannot so adjudge. The withdrawal
order of January 30, 1865, did not, in our judgment, stand in the
way of the passage of such an act as that of 1866; first, because
the acts of 1862 and 1864, by necessary implication, recognized the
right of Congress to dispose of the odd-numbered sections, or any
of them, within certain limits on each side of the road at any time
prior to the definite location of the line of the railroad; second,
Congress reserved the power to alter, amend, or repeal each act;
third, the filing of the map of general route gave the railroad
company no claim to any specific lands within the exterior limits
of such route on either side of the road, the rule being that a
grant of public lands in aid of the construction of a railroad is,
until its route is established, in the nature of 'a float,' and
title does not attach to specific sections until they are
identified by an accepted map of definite location of the line of
road to be constructed. The railroad company accepted the grant
subject to the possibility that Congress might, in its discretion
and prior to the definite location of its line, sell, reserve, or
dispose of enumerated sections for other purposes than those
originally contemplated.
Kansas Pacific Railway v.
Dunmeyer, 113 U. S. 629,
113 U. S.
639,
113 U. S. 644;
United
States v. Southern Pacific Railroad, 146 U. S.
570,
146 U. S. 593. In
Northern Pacific Railroad v. Sanders, 166 U. S.
620,
166 U. S. 634, we said:"
"The company acquired, by fixing its general route, only an
inchoate right to the odd-numbered
Page 176 U. S. 48
sections granted by Congress, and no right attached to any
specific section until the road was definitely located and the map
thereof filed and accepted. Until such definite location, it was
competent for Congress to dispose of the public lands on the
general route of the road as it saw proper."
Again, in the same case:
"It is true, as said in many cases, that the object of an
executive order withdrawing from preemption, private entry, and
sale lands within the general route of a railroad is to preserve
the lands unencumbered until the completion and acceptance of the
road. But where the grant was, as here, of odd-numbered sections
within certain exterior lines"
"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,"
the filing of a map of general route and the issuing of a
withdrawal order did not prevent the United States, by legislation
at any time prior to the definite location of the road, from
selling, reserving, or otherwise disposing of any of the lands
which, but for such legislation, would have become, in virtue of
such definite location, the property of the railroad company.
Especially must this be true where the grant is made subject to the
reserved power of Congress to add to, alter, amend, or repeal the
act containing such grant. The act of 1866 did not take from the
railroad company any lands to which it had then acquired an
absolute right. The right it acquired in virtue of the act making
the grant, and of the accepted map of its general route, was to
earn such of the lands within the exterior lines of that route as
were not sold, reserved, or disposed of, or to which no preemption
or homestead claim had attached at the time of the definite
location of its road. That act did not violate any contract between
the United States and the railroad company, for the reason that the
contract itself recognized the right of Congress, at any time
before the line of road was definitely located, to dispose of
odd-numbered sections granted. It was one that disposed of the
lands in question before the definite location of the road. It
dedicated these and like lands, part of the public domain, to the
specific purposes stated in its provisions, and to
Page 176 U. S. 49
that extent removed the restrictions created by the withdrawal
order of 1865, leaving that order in full force as to other lands
embraced by it.
Bullard v. Des Moines & Fort Dodge
Railroad, 122 U. S. 167,
122 U. S. 174.
That order took these lands out of the public domain as between the
railroad company and individuals, but they remained public lands
under the full control of Congress, to be disposed of by it in its
discretion at any time before they became the property of the
company under an accepted definite location of its road. We cannot
doubt that the act of 1866 was a legal exertion of the power of
Congress over the public domain.
As the grant contained in the Act of July 2, 1864, did not
include any lands that had been reserved, sold, granted, or
otherwise appropriated at the time the line of the Northern Pacific
Railroad was "definitely fixed;" as the route of the Northern
Pacific Railroad had not been definitely fixed at the time the Act
of July 25, 1866, was passed, or when the line of the Oregon
Company was definitely located; as the lands in dispute are within
the limits of the grant contained in the act of 1866; as the route
of the Oregon Railroad was definitely fixed at least when the map
showing that route was accepted by the Secretary of the Interior on
the 29th day of January, 1870, the Northern Pacific Railroad
Company having done nothing prior to the latter date except to file
the Perham map of 1865, and as, prior to the forfeiture Act of
September 29, 1890, there had not been any definite location of the
Northern Pacific Railroad opposite the lands in dispute, there is
no escape from the conclusion that these lands were lawfully earned
by the Oregon Company and were rightly patented to it. Of course,
if the route of the Northern Pacific road had been definitely
located before the act of 1890 was passed, and had embraced the
lands in dispute, different questions would have been
presented.
In opposition to the views we have expressed, it may be said
that the clause in the Act of July 25, 1866, providing for the
selection under the direction of the Secretary of the Interior of
lands for the Oregon Company in lieu of any that should "be found
to have been granted, sold, reserved, occupied by
Page 176 U. S. 50
homestead settlers, preempted, or otherwise disposed of," shows
that Congress did not intend to include in, but intended to exclude
from, the grant to that company any lands that could have been
earned by the Northern Pacific Railroad Company by definitely
fixing its route and filing its map of definite location.
Undoubtedly those lands would be regarded as having been
appropriated when the route of the Oregon road was definitely
located, if prior to that date the route of the Northern Pacific
Railroad had been definitely fixed, and if such lands were within
the exterior lines of that route. But, as we have said, these lands
were within the limits of the grant of July 25, 1866, and had not
at that time, or when the route of the Oregon road was
definitely located, been appropriated for the benefit of the
Northern Pacific Railroad Company, for the reason that the latter
company had not then filed any map of definite location. The
Northern Pacific Railroad Company could take no lands except such
as were unappropriated at the time its line was definitely fixed.
It accepted the grant of 1864 subject to the possibility that
Congress might, before its line was definitely fixed, authorize
other railroad corporations to appropriate lands within its general
route, allowing it to select other lands in lieu of any so
appropriated. The lands here in dispute were consequently subject
to be disposed of by Congress when the act of 1866 was passed, and
(the line of the Northern Pacific Railroad not having been
definitely located prior to the passage of the forfeiture act of
1890) the Oregon Company became entitled to take the lands and to
receive patents therefor in virtue of its accepted map of definite
location.
Touching the joint resolution of May 31, 1870, it is clear that
whatever may be its scope, no previously vested right of the Oregon
Company was affected or was intended to be affected by that
resolution. On the contrary, the resolution on its face indicates
that some of the lands which the Northern Pacific Railroad Company
may have been entitled to earn had been or might have been granted
or otherwise disposed of "subsequent to the passage of the Act of
July 2, 1864," and in lieu thereof that company was authorized
under the direction
Page 176 U. S. 51
of the Secretary of the Interior to receive other lands. The
only effect, therefore, of the joint resolution, as between the
Northern Pacific Railroad Company and the Oregon Company, was to
confer upon the former company the right to receive other lands in
lieu of those appropriated by the latter company under the
authority of the act of 1866.
Passing by, as unnecessary to be determined, other questions
discussed by counsel, we adjudge that the circuit court erred in
cancelling the patents referred to in the bill, and that the
reversal by the circuit court of appeals of the decree of the
circuit court, and the remanding of the cause with directions to
dismiss the bill, was right.
The decree of the circuit court of appeals is
Affirmed.
MR. JUSTICE McKENNA did not participate in the decision of this
case.