l. The policy of the government, since the acquisition of the
Northwest Territory and the inauguration of our land system, to
reserve salt springs from sale has been uniform. This policy has
been applied to the "Louisiana Territory," acquired by us from
France in 1803, and probably would apply to the Territory of
Nebraska, on general principles. Whether or not, it does apply
under the Act of July 22, 1854, "to establish the offices of
surveyor general of New Mexico, Kansas, and Nebraska." It applies
at least so far as to render void an entry where the salines at the
time had been noted on the field books, were palpable to the eye,
and were not first discovered after entry.
2. Patents for land which have been previously reserved from
sale are void.
3. Where an act of Congress speaks of "vested rights,"
protecting them, it means rights lawfully vested. Hence it does not
protect a location made on public land reserved from sale.
Morton sued certain tenants of the state of Nebraska in
ejectment to recover three hundred and twenty acres of salt land --
salines -- in the said state, a state formed, as every
reader of these volumes is aware, out of that vast region formerly
known as the Territory of Louisiana and purchased in 1803 by us
from France. The land in question was palpably saline, so encrusted
with salt as to resemble snow-covered lakes. The salines in
question were noted on the field books, but these notes were not
transferred to the register's general plats. The state intervened
in the suit, and by its own request was made a defendant.
The plaintiff based his title under locations of military bounty
land warrants at the land office in Nebraska City, in September,
1859. These warrants were issued by virtue of the Military Bounty
Land Act of September 28, 1850, which declared that such warrants
might be located at any land office of the United States upon any
of the public lands in such district
then subject to private
entry. The locators of the warrants, it appeared, before they
made their entries, were told that the lands were salines. The
state now set up that the locations were without authority of law,
because
Page 88 U. S. 661
the lands being saline lands were not subject to such entry.
The question thus was whether, in Nebraska, saline lands were
open to private entry; or more strictly, whether they were so under
circumstances such as those above stated.
It was not denied by the plaintiff that the practice of the
federal government, as exhibited by many acts of Congress (which
being referred to in the opinion of the Court, need not here, by
the reporter, be particularized), from an early date had been to
exclude this sort of land, with certain other sorts, from public
sale, generally. It had done so confessedly from the Northwestern
Territory and from the Territory of Orleans, the now State of
Louisiana. But the defendants conceived -- and such was their
position -- that under the statutes regulating the matter in
Nebraska, this was not so.
The matter was to be settled by certain acts of Congress,
standing perhaps by themselves, or if their language was not
clearly enough applicable to the District of Nebraska, by such
acts, read by the light of the policy of the government and its
numerous enactments on the main subject.
The first act which bore directly upon the matter was an act of
March 3, 1811, [
Footnote 1]
"providing for the final adjustment of claims to lands and for the
sale of the public lands in the Territories of Orleans and
Louisiana." This act created a new land district, and authorized
the President to sell any surveyed public lands in the Territory of
Louisiana, with certain exceptions named;
"And with the exception also of the
salt springs and
lead mines, and lands contiguous thereto."
Next came an act, approved July 22, 1854, [
Footnote 2] more immediately bearing on the
matter:
"An act to establish the offices of surveyor general of New
Mexico, Kansas, and
Nebraska, to grant donations to actual
settlers therein, and for other purposes."
This was an act of thirteen sections, and, as its title shows,
relating to three different territories.
Page 88 U. S. 662
The first three sections related, without any question,
exclusively to the Territory of New Mexico.
The first of them authorized the appointment of a surveyor
general for
that territory, with the usual powers and
obligations of such officers.
The second made a donation of a quarter-section of land to all
white males residing in it, who had declared an intention, prior to
January 1, 1853, to become citizens; and also (on condition of
actual settlement &c.) to every white male citizen above
twenty-one years of age who should remove or have removed there
between January 1, 1853, and January 1, 1858.
The third authorized a patent for
such land to
issue.
Then came in a fourth section, in these words:
"
None of the provisions of this act shall extend to
mineral or
school lands,
salines, military or
other reservations, or lands settled on or occupied for purposes of
trade and commerce, and not for agriculture."
This fourth section, as the reader will observe, does not in
terms refer to the Territory of New Mexico, but says
none of
the provisions of this act &c.
However, the fifth section enacts
"That sections 16 and 36 in each township, shall be, and the
same are hereby reserved for the purpose of being applied to
schools in the
said territory,"
that is to say, the Territory of New Mexico, and the sixth
reserves a quantity of land equal to two townships, for a
university
there.
The fourth section, therefore, as the reader will have noted, is
interposited between sections which relate exclusively to the
Territory of New Mexico, though it, itself, does not in terms so
exclusively relate. The fifth section also, as he will have noted,
makes a reservation for schools -- a matter which the fourth
section in some way apparently had also legislated upon.
Then came a seventh section, enacting "that any of the lands not
taken under the provisions of this act" are subject to the
operation of the Preemption Act of 4th September,
Page 88 U. S. 663
1841 [
Footnote 3] an act
which by its tenth section authorizes certain persons to enter one
hundred and sixty acres at the minimum price, and enacts:
"That no lands on which are situated any known salines or mines
shall be liable to entry under and by virtue of the provisions of
this act."
Section eight authorizes the surveyor general to ascertain the
origin, nature, character, and extent of all claims to lands under
the laws, usages, and customs of Spain and Mexico, and lands
covered thereby are to be reserved from sale.
Section nine gives the Secretary of the Interior power to "issue
all needful rules and regulations for fully carrying into effect
the several provisions of this act."
Then comes for the first time, in a section ten, a specific
reference to Nebraska. This tenth section authorizes the
appointment of surveyors general for Nebraska and Kansas, with the
usual powers and obligations of such officers. It authorizes them
to locate their offices at certain places &c.
The eleventh section directs surveys in the said
territories.
The twelfth subjects
"all the lands to which the Indian title has been or shall be
extinguished within said Territories of Kansas and Nebraska to the
operations of the Preemption Act of 4th September, 1841;"
the Preemption Act mentioned above in the seventh section. And
the thirteenth makes two new land districts, authorizes for these
two districts the appointment of registers and receivers, and
concludes the statute with an enactment thus:
"And the President is hereby authorized to cause the surveyed
lands to be exposed to sale, from time to time, in the same manner
and upon the same terms
as the other public lands of the United
States."
Whether, therefore, this section four, interposited as it is
between sections relating exclusively to New Mexico, did,
Page 88 U. S. 664
notwithstanding its general language, bear on the Territory of
Nebraska, was one question raised by the plaintiff in the case, who
denied that it did or could. He asserted that it meant "none of the
foregoing provisions," &c. -- that is to say, the
provisions in section two about the
donation of land.
The state, on the other hand, insisting that it did apply to the
other two territories mentioned in subsequent sections of the act,
asserted also that whether it did or did not was unimportant, since
by the twelfth section the lands in Nebraska were subjected to the
provisions of the Preemption Act of 1841, which exempted "all
known salines," within which class, as it happened, those
in question came.
The state, however, relied also on two other acts subsequent to
that already set forth, of July 22, 1854. The acts were thus:
1st. An act of the 3d of March, 1857, [
Footnote 4] "to establish three additional land
districts in the Territory of Nebraska."
This act rearranged the land districts of Nebraska, authorized
the appointment of officers for them, and by one section
enacted:
"That the President is hereby authorized to cause the public
lands in said districts to -- with the exception of such as
may
have been or may be reserved for other purposes -- be exposed
to sale in the same manner as other public lands of the United
States."
2d. An act of the 19th April, 1864, [
Footnote 5] "to enable the people of Nebraska to form a
constitution and state government, and for the admission of such
state into the Union," &c.
This act enacts:
"SECTION 11. That all salt springs within said state, not
exceeding twelve in number, with six sections of land adjoining, or
as contiguous as may be to each, shall be granted to said state for
its use, the said land to be selected by the governor thereof,"
&c.
Under this act (after the admission of Nebraska as a state
Page 88 U. S. 665
into the Union), its governor made a selection of twelve salt
springs, the ones now in question being of the number.
This act, however, contained a proviso which the plaintiffs
conceived covered the present case and destroyed the value to the
state (if it had any) of the main enactment. The proviso was
thus:
"
Provided that no salt spring or lands, the right
whereof is now vested in any individual or individuals, shall by
this act be granted to said state."
It may here be remarked that the plaintiffs had obtained
certificates of entry for the lands in controversy, and patents for
them had been issued. The patents were transmitted from the General
Land Office at Washington to the local office in Nebraska. Before
their delivery, however, the Commissioner of the General Land
Office, ascertaining that the lands patented were saline lands and
not agricultural, recalled the patents and cancelled the
location.
The court below gave judgment for the state. From that judgment
the other side brought the case here.
Page 88 U. S. 666
MR. JUSTICE DAVIS delivered the opinion of the Court.
The policy of the government since the acquisition of the
Northwest Territory and the inauguration of our land system, to
reserve salt springs from sale has been uniform. The Act of 18th
May, 1796, [
Footnote 6] the
first to authorize a sale of the domain ceded by Virginia, is the
basis of our present rectangular system of surveys. That act
required every surveyor to note in his field book the true
situation of all mines, salt licks, and salt springs, and reserves
for the future disposal of the United States a well known salt
spring on the Scioto River and every other salt spring which should
be discovered.
These reservations were continued by the Act of May 10, 1800,
[
Footnote 7] which created land
districts in Ohio, with registers and receivers and authorized
sales by them, the preceding act having recognized the governor of
the Northwest Territory
Page 88 U. S. 668
and the Secretary of the Treasury as the agents for the sale of
the lands. And the same policy was observed when provision was made
in 1804 for the disposal of the lands in the Indiana Territory
(embracing what is now Illinois and Indiana). [
Footnote 8] It was then declared
"That the several salt springs within said territory, with as
many contiguous sections to each as shall be deemed necessary by
the President, shall be reserved for the further disposal of the
United States."
Without referring particularly to the different acts of Congress
on the subject, it is enough to say that all the salines in the
Virginia cession were reserved from sale and afterwards granted to
the several states embraced in the ceded territory. Congress, in
the disposition of the public lands in the Mississippi Territory
[
Footnote 9] and in the
Louisiana Purchase, preserved the policy which it had applied to
the country obtained from Virginia. Over all the territory acquired
from France the general land system was extended. The same rules
which were prescribed by law for the survey and sale of lands east
of the Mississippi River were transferred to this new acquisition.
[
Footnote 10] At the first
sale of lands in this region which the President was authorized to
make, salt springs and lands contiguous thereto were excepted.
[
Footnote 11] And this
exception was continued when, in 1811, a new land district was
created. Prior to this time, no portion of the country north of the
State of Louisiana had been brought into market. The act of March
3, 1811, authorized this to be done, but the President, in offering
the lands for sale, was directed to except salt springs, lead
mines, and lands contiguous thereto, which were reserved for the
future disposal of the stated to be carved out of this immense
territory, which included the present State of Nebraska. [
Footnote 12] And so particular was
Congress not to depart from this policy, that in giving lands, in
1815, to the sufferers by the New Madrid earthquake, every lead
mine and salt spring were excluded from location. Indeed, in all
the acts creating new land districts in the territory now occupied
by the States of Arkansas and
Page 88 U. S. 669
Missouri, the manner of selling the public lands is not changed,
nor is a sale of salines in any instance authorized. On the
contrary, they incorporate the same reservations and exceptions
which are contained in the Act of March 3, 1811. In all of them,
the Act of 18 May, 1796, is the rule of conduct for all surveyors
general and their deputies, as the Act of 10 May, 1800, is the rule
for all registers, requiring them to exclude from sale all salt
springs, with the sections containing them.
In this state of the law of saline reservations, the Act of 22
July, 1854, was passed. It is by no means certain that the Act of
March 3, 1811, did not work the reservation of every saline in the
Louisiana Purchase, but without discussing this point, it is enough
to say that the Act of 1854 leaves no doubt of the intention of
Congress to extend to the territory embraced by the States of
Kansas and Nebraska the same system that had been applied to the
rest of the Louisiana Purchase. There was certainly no reason why a
long-established policy, which had permeated the land system of the
country, should be abandoned. On the contrary, there was every
inducement to continue for the benefit of the states thereafter to
be organized the policy which had prevailed since the first
settlement of the Northwestern Territory. In the admission of Ohio
and other states, Congress had made liberal grants of land,
including the salt springs. This it was enabled to do by reserving
these springs from sale. Without this reservation, it is plain to
be seen there would have been no springs to give away, for every
valuable saline deposit would have been purchased as soon as it was
offered for sale. An intention to abandon a policy which had
secured to the states admitted before 1854 donations of great value
cannot be imputed to Congress unless the law on the subject admits
of no other construction.
But the law of 1854, [
Footnote 13] instead of manifesting an intention to
abandon this policy, shows a purpose to continue it. It was the
first law under which lands were surveyed in Nebraska,
Page 88 U. S. 670
offered at public sale, and so made subject to private sale by
entry. By it, surveyors general for New Mexico and for Kansas and
Nebraska were appointed, with the usual powers and duties of such
officers. And although there are provisions relating to New Mexico
applicable to that territory alone, yet the leading purpose of this
act was to bring into market as soon as practicable the lands of
the United States in all of these territories. In New Mexico this
could not be done as soon as in Kansas or Nebraska on account of
the policy adopted of donations to actual settlers, who should
remove there before the 1st of January, 1858, and because of the
necessity of segregating the Spanish and Mexican claims from the
mass of the public domain. For this reason, doubtless, local land
offices were not created in New Mexico, but they were in Kansas and
Nebraska, and registers and receivers appointed, with the powers
and duties of similar officers in other land offices of the United
States. And the President was authorized to cause the lands, when
surveyed, to be exposed to sale, from time to time, in the same
manner, and upon the same terms and conditions, as the other public
lands of the United States. If there were no other provisions in
the law than we have enumerated, we should hesitate to say, in view
of the limitation on sales prescribed by law wherever public lands
had been offered for sale, that they did not of themselves work a
reservation of the land in controversy. In conducting the public
sales, the register always reserved salines, as it was his duty to
do, when marked on the plats, and this was never omitted except by
the neglect of the surveyors general or their deputies. But the
fourth section of the act removes all doubt upon that subject. That
section declares that none of the provisions of this act shall
extend to mineral or school lands, salines, military, or other
reservations or lands settled on or occupied for purposes of trade
and commerce.
It is contended that this section applies to the donations,
conceded in the preceding sections, to actual settlers in New
Mexico. But why make this restriction? To do it would require the
importation of the word (foregoing), so that the
Page 88 U. S. 671
section would read "none of the (foregoing) provisions shall
extend to salines or mineral lands." There is no authority to make
this importation and in this way subtract from the general words of
the section. The language of the section is imperative, and leaves
no room for construction. Besides, why should an intention be
imputed to Congress to exclude actual settlers from saline lands
but leave them open to private entry by speculators. The
legislation upon the subject of public lands has always favored the
actual settlers, but the construction contended for would
discriminate against them and in favor of a class of persons whose
interests Congress has never been swift to promote.
Apart from this, however, the purpose which Congress had in view
is to be found in the unbroken line of policy in reference to
saline reservations, from 1796 to the date of this act. To
perpetuate this policy and apply it equally to all the lands of the
three territories was the controlling consideration for the
incorporation of the section, and although the words of the section
are loose and general, their meaning is plain enough when taken in
connection with the previous legislation on the subject of salines.
It cannot be supposed without an express declaration to that effect
that Congress intended to permit the sale of salines in territories
soon to be organized into states, and thus subvert a
long-established policy by which it had been governed in similar
cases. If anything were needed to show that the fourth section did
reserve salines from sales, it can be found in the Act of 3d of
March, 1857, [
Footnote 14]
rearranging the land districts in Nebraska. This act excepts from
sale such lands "as may have been reserved." This is a declaration
that lands had been reserved, and obviously it is a legislative
construction of the fourth section of the Act of 1854, for nowhere
else, except by implication, had there been reservations of any
sort in the Territory of Nebraska.
Besides this, the Nebraska Enabling Act of April 10, 1864,
[
Footnote 15] affords still
further evidence that the Act of 1854 was
Page 88 U. S. 672
intended to reserve salines. The purpose of reserving them was
to preserve them for the use of the future states, and no state had
been organized without a grant of salt springs. In some of the
states, the grant was of all within their boundaries, but on the
admission of Missouri and since, the number was limited to twelve.
This number, with a certain quantity of contiguous lands, were
granted to Nebraska on her admission. In doing this, Congress must
have assumed that the springs had been reserved from sale, for if
this had not been done, the presumption is there would have been
nothing for the grant to operate upon. It may be true that lands
only fit for agriculture will remain a long time unentered, but
this would never be the case with lands whose surface was covered
over with salt. It would be an idle thing to make a grant of such
lands if there had been a previous right of entry conceded to
individuals. This was in the mind of Congress, and induced the
reservation in the Act of 1854 by means of which Nebraska could be
placed on an equal footing with other states in like situation.
But it is said the locations in question are ratified by the
proviso to the section granting the salt springs. This proviso was
as follows:
"
Provided that no salt spring or lands,
the right
whereof is now vested in any individual or individuals, or
which hereafter shall be confirmed or adjudged to any individual or
individuals, shall by this act be granted to said state."
This provision, with an unimportant change in phraseology, was
first introduced into the enabling act for Missouri, [
Footnote 16] and exactly similar
provisions with the one in question were inserted in the acts
relating to Arkansas and Kansas. [
Footnote 17] The real purpose of the proviso is to be
found in the situation of the country embraced in the Louisiana
Purchase. The Treaty of Paris of April 30th, 1803, by which the
"Province of Louisiana" was acquired, stipulated for the protection
of private property. This comprehended titles which were complete
as well as those awaiting completion, [
Footnote 18]
Page 88 U. S. 673
and Congress adopted the appropriate means for ascertaining and
confirming them. They were numerous and of various grades, and
covered town sites and every species of lands. In Missouri, as the
records of this Court show, they were quite extensive, and when she
was admitted into the Union, many of these titles were perfect, and
still a large number imperfect. In this condition of things,
Congress thought proper in granting the salt springs to the state
to say that no salt springs
the right whereof now is or
shall be confirmed or adjudged to any individual shall pass under
the grant to the state. Whether this legislation was necessary to
save salt springs claimed under the French treaty it is not
important to determine, but manifestly it had this purpose in view,
and nothing more. It could not refer to salt springs not thus
claimed, because all entry upon them was unlawful on account of
previous reservation. It speaks of confirmations which had been
made and those which were awaiting governmental action, and in this
condition were all the titles the United States were bound to
protect.
Although the words employed in the first division of the proviso
to the saline grant to Nebraska are not the same as those used in
the Missouri grant, they mean the same thing. There can be no
difference between a right which has been confirmed and one which
is now vested. Both are perfect in themselves, and refer to
completed claims, while the last division in each proviso has
reference to claims in course of completion but not finally passed
upon. This proviso can have little significance in the enabling act
of Nebraska, nor indeed in many other enabling acts, but Congress
doubtless thought proper to introduce it out of the superabundance
of caution, as there could be no certainty that in purchased or
conquered territory, however remote from settlement, there might
not be private claims protected by treaty stipulations to which it
would be applicable. It cannot be invoked, however, for the
protection of these plaintiffs. When a vested right is spoken of in
a statute, it means a right lawfully vested, and this excludes the
locations in question, for they were made on lands reserved from
sale or
Page 88 U. S. 674
entry. If Congress had intended to ratify invalid entries like
these, they would have used the language of ratification. Instead
of doing this, the language actually employed negatives any idea
that Congress intended to give validity to any unauthorized
location on the public lands.
The Preemption Act of the 4th of September, 1841, [
Footnote 19] declares that "no lands
on which are situated any known salines or mines shall be liable to
entry," differing in this respect from the acts of 1796 and 1854,
which reserve every "salt spring" and "salines." The salines in
this case were not hidden, as mines often are, but were so
encrusted with salt that they resembled "snow-covered lakes," and
were consequently not subject to preemption. Can it be supposed
that a privilege denied to preemptors in Nebraska was conceded in
the Act of 1864 to persons less meritorious?
It appears by the record that on the survey of the Nebraska
country, the salines in question were noted on the field books, but
these notes were not transmitted to the registers' general plats,
and it is argued that the failure to do this gave a right of entry.
But not so, for the words of the statute are general and reserve
from sale or location all salines, whether marked on the plats or
not.
What effect the statute might have on salines hidden in the
earth, not known to the surveyor or the locator but discovered
after entry, may become a question in another case. It does not
arise in this. Here, the salines were not only noted on the field
books, but were palpable to the eye. Besides this, the locators of
the warrants, before they made their entries, were told of the
character of the lands. Indeed, it is quite clear that the lands
were entered solely on account of the rich deposits of salt which
they were supposed to contain.
It does not strengthen the case of the plaintiffs that they
obtained certificates of entry and that patents were subsequently
issued on these certificates. It has been repeatedly decided by
this Court that patents for lands which have been
Page 88 U. S. 675
previously granted, reserved from sale, or appropriated, are
void. [
Footnote 20] The
executive officers had no authority to issue a patent for the lands
in controversy, because they were not subject to entry, having been
previously reserved, and this want of power may be proved by a
defendant in an action at law. [
Footnote 21]
Judgment affirmed.
[
Footnote 1]
2 Stat. at Large 665 § 10.
[
Footnote 2]
10
id. 308.
[
Footnote 3]
5 Stat. at Large 456.
[
Footnote 4]
11 Stat. at Large 186.
[
Footnote 5]
13
id. 47.
[
Footnote 6]
1 Stat. at Large 464.
[
Footnote 7]
2
id. 73.
[
Footnote 8]
2 Stat. at Large 277.
[
Footnote 9]
Ib. 548; 3
id. 489.
[
Footnote 10]
2
id. 324.
[
Footnote 11]
Ib. 391.
[
Footnote 12]
Ib. 665, § 10.
[
Footnote 13]
10 Stat. at Large 308.
[
Footnote 14]
11 Stat. at Large 186.
[
Footnote 15]
13
id. 47.
[
Footnote 16]
3 Stat. at Large 547, § 6.
[
Footnote 17]
5
id. 58; 12
id. 126.
[
Footnote 18]
Soulard v. United
States, 4 Pet. 511.
[
Footnote 19]
5 Stat. at Large 456.
[
Footnote 20]
Polk v.
Wendell, 9 Cranch 99;
Minter
v. Crommelin, 18 How. 88;
Reichart
v. Felps, 6 Wall. 160.
[
Footnote 21]
Minter v. Crommelin, supra.
