A regulation of tho Secretary of the Interior providing that, in
the selection of indemnity lands under railroad land grants, a part
only of a minor legal subdivision shall not be assigned as a base
unless the rest of it be also assigned in the same selection list
held a reasonable administrative measure, and not an
arbitrary abridgment or obstruction of the right of selection. P.
257 U. S.
464.
49 App.D.C. 241, 263 F. 637, affirmed.
Appeal from a decree of the court below affirming a decree of
the Supreme Court of the District of Columbia which dismissed the
bill in a suit against the Secretary of the Interior and the
Commissioner of the General Land Office for a mandatory
injunction.
MR. JUSTICE VAN DEVANTER delivered the opinion of the Court.
This is a suit to enjoin the Secretary of the Interior and the
Commissioner of the General Land Office from going beyond what the
plaintiff insists is the limit of their power and duty in dealing
with a selection of indemnity land under the Act of July 27, 1866,
c. 278, 14 Stat. 292, which made a land grant in aid of the
construction of a railroad in California.
The grantee constructed and put in operation the greater part of
the road -- 495.52 miles -- and thereby earned the right to have
the grant fulfilled as to that part.
Page 257 U. S. 461
As to the part not constructed -- 84 miles -- the grant was
forfeited. Act Sept. 29, 1890, c. 1040, 26 Stat. 496. The plaintiff
long since succeeded to the rights of the grantee, and so much of
the grant as was not forfeited is still in process of
administration.
The grant, §§ 3 and 18, included all the odd-numbered sections
within prescribed place limits on either side of the road, save as
some of the sections or parts of sections fell within excepting
clauses in the grant, and in lieu of the lands excepted others were
to be selected by the grantee, or its successor, "under the
direction of the Secretary of the Interior," in odd-numbered
sections within prescribed indemnity limits.
Among the excepted lands, usually called "losses" or "bases for
indemnity," was section 15 in a particular township. That section
contained 640 acres, and each quarter quarter therein contained 40
acres. In presenting an extended list of indemnity selections, the
plaintiff sought to use 15 acres of one of these quarter quarters
as the base for a particular selection, without then using the
remaining 28 acres, and that selection was rejected on the ground
that, under an existing regulation prescribed by the Secretary of
the Interior, it was not admissible to use a part of a minor legal
subdivision as the base for a selection unless the remaining part
was similarly used in the same list. Another base had been
specified in the beginning, but, on examination in the land office,
it was found to be a tract outside the place limits, and the
plaintiff then sought to use the present base in its stead.
In the courts below, the plaintiff took the position that the
regulation operated as an arbitrary curtailment of its right of
selection, and was not within the scope of the power and duty of
the Secretary, or of the Commissioner, in administering the
indemnity provisions of the grant, and on that ground the plaintiff
sought a mandatory injunction requiring those officers to deal with
the selection
Page 257 U. S. 462
regardless of the regulation. Both courts held the plaintiff's
position untenable, and refused the injunction. 49 App.D.C. 241,
263 F. 637.
To determine the question presented, it is necessary to have in
mind the situation which prompted the adopted of the regulation,
and also to understand how it is applied in actual practice.
The public lands are surveyed and platted, as nearly as may be,
into rectangular tracts, known as sections, half sections, quarter
sections, half quarter sections, and quarter quarter sections, and
where the lines of the survey are interrupted by lakes, public
reservations, Spanish or Mexican grants, state or territorial
lines, etc., the irregular tracts at the point of interruption are
platted and known as fractional sections, etc., or as lots having
particular numbers. After the survey, the land officers dispose of
the lands only according to these legal subdivisions -- that is, as
sections, half sections, etc. -- and regard the minor subdivisions,
quarter quarter sections and lots as not subject to further
division, save in exceptional instances where Congress has
specially provided otherwise. Under this practice, a right to
purchase or enter 40 acres may be exercised by taking a full
quarter quarter section, but not by taking a part only of each of
two or more minor subdivisions. And the same rule is applied to
relinquishments and lieu selections -- that is to say, a right to
relinquish land to which title has been acquired and to take other
land in its stead may not be exercised by exchanging less than a
legal subdivision at a time. In short, where Congress has not
specially provided otherwise, the practice has been and is to
conform all sales, entries, and other transactions to the
subdivisions established by the survey, and to treat the minor
subdivisions as indivisible for all administrative purposes.
While the existence and scope of this practice are shown in many
decisions of the Secretary of the Interior, it suffices
Page 257 U. S. 463
here to refer to two. In one, it is said to be well settled in
the Land Department
"that, in the absence of a statute making special provision to
the contrary, public lands can be disposed of only according to the
legal subdivisions of the public survey,"
Melder v. White, 28 L.D. 412, 420, and in the other it is said
to be "an established rule" of that department
"that parts of minor legal subdivisions of surveyed public lands
cannot be entered, selected, relinquished, or surrendered under the
public land laws except in entries of particular kinds,"
Southern Pacific Railway Co., 46 L.D. 279, 281.
In the exceptional instances in which Congress has directed
otherwise the principle of the practice was not disturbed. All that
was done was to provide a special mode of segregating and
identifying particular lands which were being subjected to special
forms of disposal which could not well be adjusted to the lines of
the usual survey. The most conspicuous example of this is found in
the laws regulating the disposal of mineral lands.
The manner of keeping the land office records -- which is
according to a system of "tract books" -- and the mode of checking
up and tracing the various land transactions have long been
adjusted to this practice, and, in the judgment of the land
officers, adherence to it is of much importance.
The regulation in question adapts and applies this general
practice to the selection of indemnity lands under railroad land
grants by requiring (a) that the selections be accompanied by a
specification, tract for tract, of the losses on which they are
based; (b) that the selections be made by legal subdivisions, and
(c) that, in specifying the losses, minor legal subdivisions be
used in entireties, and not in fragments.
The last part of the regulation is what is challenged here. As
applied and enforced by the land officers it is not directed
against using parts of a minor subdivision as
Page 257 U. S. 464
bases for two or more selections where the entire subdivision is
used in the same selection list, but only against using it in
fragments to sustain distinct selections in different lists. To
illustrate: parts of a lost quarter quarter containing 40 acres may
be specified as the bases for selecting two or more fractional
subdivisions aggregating 40 acres where the selections are all
included in a single list, but not otherwise. And, conversely, the
loss of two or more fractional subdivisions aggregating 40 acres
may be made the base for selecting a quarter quarter of 40 acres
where the selection is not made piecemeal in different lists.
Southern Pacific Ry. Co.,
supra. It, however, is not
required that the losses and selections be exactly matched in
quantity, but only that they correspond "as nearly as legal
subdivisions will permit." In other words, reasonable approximation
is deemed sufficient, and such minor differences as are practically
unavoidable are disregarded. Florida Central and Peninsular R. Co.,
15 L.D. 529; Bull v. Northern Pacific R. Co., 26 L.D. 693; Northern
Pacific Ry. Co., 43 L.D. 534; Southern Pacific Ry. Co.,
supra.
Thus understood, the regulation is merely an administrative
measure designed to facilitate the examination and disposal of the
selection lists, and to be fair alike to the claimant and the
government. It neither abridges the right of selection nor
unreasonably obstructs its exercise, but, on the contrary, leaves
the claimant free to select and obtain indemnity for all losses if
only the lands available in the indemnity limits are sufficient for
the purpose.
When the manifold losses to be indemnified under these extensive
grants are considered, it is apparent that some regulation of the
mode of selection is essential. This is recognized in the several
granting acts, all of which in substance, or in express terms, as
here, provide that the selections shall be made under the direction
of the Secretary of the Interior. These provisions, of course,
cannot
Page 257 U. S. 465
be taken as investing the Secretary with authority to abridge
the right to indemnity or to interpose any unreasonable obstruction
to its exercise,
Payne v. Central Pacific Ry. Co.,
255 U. S. 228,
255 U. S. 236,
but, in our opinion they do enable him, in the interest of an
orderly and efficient administration, to prescribe and enforce
reasonable regulations respecting the mode in which the selections
shall be made and brought to the attention of the land
officers.
The regulation in question is of that character. Its evident
purpose, as also its material tendency, is to simplify the task of
examining and passing on the selections when presented, to avoid
repeated searches to ascertain the status of the same minor
subdivision, such as would be essential if it were used in
fragments as bases for distinct selections made at different times,
to guard against the mistakes incident to such a practice, and to
conform the mode of selection to the usual procedure in public land
transactions.
There is nothing in this granting act with which the regulation
conflicts. The grant is of sections and parts of sections to be
identified by the usual survey, and is accompanied by a provision,
§ 6, for a full survey of all lands within its exterior limits. The
lands excepted are to be identified in the same way as those
passing under the grant, and so of the lands which may be taken as
indemnity. Thus, the survey is made an element of every part of the
grant. Nowhere in the granting act is there any suggestion of an
intention that the grant or any part of it shall be administered
otherwise than by legal subdivisions.
For these reasons we hold that the regulation is within the
scope of the power and duty of the Secretary of the Interior.
Decree affirmed.