1. Subject to certain reservations and exceptions, the Act of
Congress of July 1, 1862, 12 Stat. 489,
"to aid in the construction of a railroad and telegraph line
from the Missouri River to the Pacific Ocean, and to secure to the
government the use of the same for postal, military, and other
purposes,"
passed to the companies therein named a present interest in
every odd-numbered section of public land within specified limits
on each side of the lines of their respective roads. When those
lines were definitely established, the title of the companies
acquired precision, and became attached to such sections.
2. Said act having been amended by that of July 2, 1864, 13
Stat. 366, by substituting words of larger import, the grant must
be treated as if it had been thus made originally, and therefore,
as against the United States, the title of the companies to the
increased quantity of land must be considered as taking effect July
1, 1862.
3. The company now known as the Kansas Pacific Railway Company
was one of the companies mentioned in said acts. By the Act of July
3, 1866, 14 Stat. 79, it was authorized to designate the general
route of its road and to file a map thereof at any time before Dec.
1, 1866, provided that after the filing of the map, the lands along
its entire line, so far as designated, should be reserved from sale
by the Secretary of the Interior. Within the specified time, the
company filed a map designating as such general route a line from
Fort Riley to the western boundary of Kansas by way of the Smoky
Hill River. The lands upon this route, embracing, among others,
those now in controversy, were accordingly withdrawn from sale, and
in January, 1867, the road was completed for twenty-five miles,
approved by the commissioners appointed to examine it, and accepted
by the President.
Held 1. that the title of the company
attaching to those lands by the location of the road, followed by
the construction thereof, took effect, by relation, as of the date
of the said Act of 1862, so as to cut off all intervening
claimants, except in the cases where reservations were specially
made in it and the amendatory Act of 1864; 2. that such
reservations operated as limitations upon the grant.
4. It was not within the language or intention of those acts to
except from their operation any portion of the odd-numbered
sections within the limits specified in either act, for the purpose
of thereafter granting them to aid in the construction of other
roads.
5. The claim of the Missouri, Kansas, and Texas Railway Company
to the lands in controversy arises under the Act of July 26, 1866,
14 Stat. 289, under which the route of its road was designated, a
map thereof filed, and the road constructed. At that date, the
title to the lands along that route, which were covered by the
previous grant to the Kansas Pacific Railway Company, had already
passed from the United States.
6. Although the rights of said companies are determined by the
date of their respective grants, it appears that the location of
the Kansas Pacific was earlier than that of the Missouri, Kansas,
and Texas road.
Page 97 U. S. 492
The facts are sufficiently stated in the opinion of the
Court.
MR. JUSTICE FIELD delivered the opinion of the Court.
This case involves a determination of the title to about ninety
thousand acres of land situated in the State of Kansas, claimed by
the two railway corporations which are parties to the suit, under
grants from the United States. The plaintiff in the court below,
the defendant in error here, the Kansas Pacific Railway Company,
was originally known as the Leavenworth, Pawnee, and Western
Railroad Company, and is thus designated in the Act of Congress of
1862. Subsequently, in 1864, the name was changed to that of the
Union Pacific Railroad Company, Eastern Division, and it was
afterwards so called in the legislation of Congress until some time
in 1869, when it received its present name. 13 Stat. 361; 14
id. 79, 355; 15
id. 348.
The defendant in the court below, the plaintiff in error here,
the Missouri, Kansas, and Texas Railway Company, claims the lands
under a grant from the United States to the State of Kansas and by
patent from the latter. Both grants were made to aid in the
construction of railroads the lines of which were not definitely
fixed. In neither of them was there any designation of the lands
granted other than that they were to constitute the odd sections
within certain specified distances on each side of the roads when
located. It becomes essential, therefore, for a proper
determination of the rights of the two companies to consider the
terms of their respective grants and ascertain the time when the
title to the lands claimed passed from the government.
The plaintiff, the Kansas Pacific Railway Company, claims under
the Act passed on the 1st of July, 1862, in aid of the construction
of a railroad and a telegraph line from the Missouri River to the
Pacific Ocean, and the several acts amendatory thereof or
supplementary thereto. That act granted to the company organized
under its provisions, for every mile of
Page 97 U. S. 493
road, five sections of public land, designated by odd numbers,
on each side of the line of the road within the limit of ten miles
which were not sold, reserved, or otherwise disposed of by the
United States and to which a preemption or homestead claim had not
attached at the time the line was definitely fixed. It also
provided that whenever the company had completed forty consecutive
miles of any portion of its road or telegraph line ready for the
service contemplated, the President of the United States should
appoint three commissioners to examine the same and report whether
the road and the telegraph line were completed and equipped as
required by the act, and upon a favorable report, patents were to
issue for the adjacent lands.
The company was required to file in the Department of the
Interior its assent to the act within one year after its passage
and to designate the general route of its road as near as might be
and file a map of the same in that department within two years. The
Secretary of the Interior was then to withdraw the lands within
fifteen miles of the designated route from preemption, private
entry, and sale, and when any portion of the route was finally
located, he was to cause the lands granted to be surveyed and set
off as fast as necessary for the purposes mentioned. The President
was to designate the initial point of the road, which was to be in
the Territory of Nebraska, on the one hundredth meridian west from
Greenwich, at which point the eastern branches were to unite. The
act contemplated several branches, one of which was to be
constructed by the Leavenworth, Pawnee, and Western Railroad
Company, the name of which was, as already stated, afterwards
changed to that of the Kansas Pacific Railway Company. It
authorized this company, which was incorporated by the State of
Kansas, to construct a railroad and a telegraph line from the
Missouri River at the mouth of the Kansas River, on the south side
thereof, so as to connect with the Pacific Railroad of Missouri at
the initial point named, upon the same conditions in all respects
as were provided for the construction of the main road and line. In
case the general route of the main road was located so as to
require a departure northwardly from the proposed line of the
Kansas
Page 97 U. S. 494
road before it reached the meridian of longitude mentioned, the
location of the Kansas road was to be made to conform to it. The
route in Kansas, west of the meridian of Fort Riley to the point
mentioned on the one hundredth meridian of longitude, was to be
made subject to the approval of the President of the United States,
and to be determined by him on actual survey.
Under this act, the plaintiff, on the 17th of July, 1862, filed
a map showing the general route of its road, and lands within the
limit of fifteen miles on each side of it were accordingly
withdrawn from sale. This route extended along the Kansas River
from its mouth to the Republican River, and thence along the left
bank of the latter to the one hundredth meridian.
On the 2d of July, 1864, Congress passed an amendatory act
enlarging its grant of land to the Union Pacific Railroad Company
and the companies authorized to connect with its road and the
limits within which the lands were to be reserved, and extending
for one year the time for designating the general routes of their
respective roads and providing for the issue to the companies of
patents for the lands whenever twenty consecutive miles of their
respective roads were found upon the report of the commissioners to
be completed. It also authorized the plaintiff to construct its
road and telegraph line so as to connect with the Union Pacific
road at a point west of its initial point, in case it deemed such
westward connection more practicable or desirable. Under this
amendatory act, the plaintiff filed a map designating the general
route of its road west of Fort Riley up the Republican River, but
this route was never approved by the President as required by the
original Act of 1862, and no withdrawal of lands along this
proposed route was made other than that of July, 1862, and of the
lands then withdrawn west of Fort Riley only such are claimed by
the plaintiff as were included in the subsequent withdrawal under
the Act of 1866.
On the 3d of July, 1866, Congress passed a special act
authorizing the plaintiff to designate the general route of its
road and to file a map thereof, at any time before the 1st of
December, 1866, and providing that after the filing of this
map,
Page 97 U. S. 495
the lands along its entire line, so far as it was designated,
should be reversed from sale by the Secretary of the Interior. It
also declared that the company should connect its lines of road and
telegraph with the Union Pacific road, at a point not more than
fifty miles westwardly from the meridian of Denver, in Colorado.
Under this act the plaintiff, on the 11th of July, 1866, filed a
map in the Department of the Interior designating as the general
route of its road a line from Fort Riley to the western line of the
state by way of the Smoky Hill River, instead of the Republican
River, and on the 26th of the same month, the lands upon this route
were withdrawn from sale by order of the Secretary of the Interior.
The lands thus withdrawn embrace those in controversy in this case.
Previously to this, the road of the company had been completed as
far as Fort Riley, and by the 14th of December following (1866),
twenty miles west of Fort Riley, and on the Smoky Hill route, were
also completed. Upon the presentation of an affidavit of this fact,
the President appointed commissioners to examine and report upon
the road. Before they made their examination, a section of five
additional miles of the road had been completed, and they were
directed to include it in their examination. On the 17th of
January, 1867, they reported to the Secretary of the Interior that
the twenty-five miles were ready for service and were completed and
equipped as a first-class road. On the 22d of that month, the
Secretary informed the President of the report and recommended its
acceptance and the issue of patents for the lands due the company
on account of this completed portion of the road, and on the same
day the President approved the report and directed that patents be
issued as recommended by the Secretary.
Upon this order and the legislation we have stated and the
proceedings had under it the plaintiff bases its right to the lands
in controversy and a consequent affirmance of the decision of the
court below.
Briefly stated, the case of the plaintiff is this: in 1862,
Congress granted to it certain lands consisting of odd sections
along a railroad to be afterwards constructed; in 1864, Congress
enlarged the grant, and by subsequent legislation authorized
the
Page 97 U. S. 496
route of the road to be designated at any time before December,
1866; when designated, lands within a limit sufficiently extended
to embrace the granted sections were to be reserved from sale, and
when certain portions of the road were from time to time completed
and were accepted by the President as a first-class road, patents
for the sections were to be issued to the company. The plaintiff
designated the route of its road in July, 1866, and the lands in
controversy were, on the 26th of that month, reserved from sale. By
the 14th of December following, it had completed twenty miles of
its road, and by the 16th of January, 1867, five additional miles.
Commissioners were appointed by the President to examine and report
as to the completion and equipment of the road, and upon their
favorable report this section of twenty-five miles was accepted by
him and a patent for the lands was ordered to be issued. The
plaintiff therefore claims that it acquired a title to the lands
and has a right to the evidence of it. And this claim is clearly
well founded unless there be something impairing its validity in
the legislation and proceedings under which the defendant asserts
title to the lands.
As between the United States and the plaintiff, the right of the
latter to a patent became perfect on the approval by the President
of the report of the commissioners. The Act of July 1, 1862, passed
to the company a present interest in the lands to be designated
within the limits there specified. Its language is, "that there be
and is hereby granted" to it the odd sections mentioned -- words
which import a grant
in praesenti, and not one
in
futuro, of the promise of a grant. Similar terms in other acts
of Congress granting lands have uniformly received this
interpretation unless accompanied with clauses restraining their
operation. They were so interpreted in
Schulenberg v.
Harriman, after full consideration of previous adjudications
on their import, and the ruling there was followed in
Leavenworth, Lawrence, & Galveston Railroad Co. v. United
States, 92 U. S. 733. It is
true that the route of the road, in this case as in those cases, to
aid in the construction of which the act was passed, was to be
afterwards designated, and until designated, the title could not
attach to any specific tracts. The grant was of sections to be
afterwards located,
Page 97 U. S. 497
and their location depended upon the route to be established;
when that was settled, the location became certain and the title
that was previously imperfect acquired precision and attached to
the lands.
It is always to be borne in mind in construing a congressional
grant that the act by which it is made is a law as well as a
conveyance, and that such effect must be given to it as will carry
out the intent of Congress. That intent should not be defeated by
applying to the grant the rules of the common law, which are
properly applicable only to transfers between private parties. To
the validity of such transfers it may be admitted that there must
exist a present power of identification of the land and that where
no such power exists, instruments, with words of present grant, are
operative, if at all, only as contracts to convey. But the rules of
the common law must yield in this, as in all other cases, to the
legislative will.
As to the intent of Congress in the grant to the plaintiff there
can be no reasonable doubt. It was to aid in the construction of
the road by a gift of lands along its route, without reservation of
rights except such as were specifically mentioned, the location of
the route being left within certain general limits to the action of
the plaintiff. When the location was made and the sections granted
ascertained, the title of the plaintiff took effect by relation as
of the date of the act, except as to the reservations mentioned,
the act having the same operation upon the sections as if they had
been specifically described in it. It is true that the Act of 1864
enlarged the grant of 1862, but this was done not by words of a new
and an additional grant, but by a change of words in the original
act, substituting for those there used words of larger import. This
mode was evidently adopted that the grant might be treated as if
thus made originally, and therefore, as against the United States,
the title of the plaintiff to the enlarged quantity, with the
exceptions stated, must be considered as taking effect equally with
the title to the less quantity as of the date of the first act.
United States v. Burlington & Missouri Railroad Co., 4
Dill. 305.
The construction thus given to the grant in this case is, of
Page 97 U. S. 498
course, applicable to all similar congressional grants, and
there is a vast number of them, and it will tend, we think, to
prevent controversies between the grantees and those claiming under
them respecting the title to the lands covered by their several
grants, and put an end to struggles to encroach upon the rights of
others by securing an earlier location. Our judgment is that the
title of the plaintiff, attaching to the lands in controversy by a
location of the route of the road, being followed by a construction
of the road, took effect by relation as of the date of the Act of
1862, so as to cut off all intervening claimants except in the
cases where reservations were specially made in that act, and the
amendatory Act of 1864. Such reservations operated as limitations
upon the grant. The limitation upon the grant in the Act of July,
1862, extended to lands sold, reserved, or otherwise disposed of by
the United States, or to which a preemption or homestead claim had
attached, and to mineral lands. The amendatory act of July, 1864,
declared that neither that nor the original act should defeat or
impair any preemption, homestead, swamp land, or other lawful claim
or include reservations or mineral lands other than those of iron
or coal.
As the sections mentioned could only be known when the route of
the road was established, which might not be for years, the
government did not intend to withhold the lands in the meantime
from occupation and sale, and thus retard the settlement of the
country, nor to exclude the lands from appropriation to public
uses. And the object of the reservation was to protect the
acquisition of rights in this way to lands falling within the
limits of the grant, and to exclude from its operation lands
specially reserved and lands of a special character, such as
mineral lands other than those of iron or coal, the sale of which
was seldom permitted anywhere, and swamp lands. The grant made was
in the nature of a float, and the reservations excluded only
specific tracts to which certain interests had attached before the
grant had become definite, or which had been specially withheld
from sale for public uses, and tracts having a peculiar character,
such as swamp lands or mineral lands the sale of which was then
against the general policy of the government. It was not
Page 97 U. S. 499
within its language or purpose to except from its operation any
portion of the designated lands for the purpose of aiding in the
construction of other roads.
The claim of title to the lands in controversy made by the
defendant in the court below, the plaintiff in error here, the
Missouri, Kansas, and Texas Railway Company, arises in this
wise:
On the 3d of March, 1863, Congress passed an act granting lands
to the State of Kansas to aid in the construction of certain
railroads, one of which was to extend from the city of Atchison via
Topeka, the capital of the State, to its western line in the
direction of Fort Union and Santa Fe, New Mexico, with a branch
down the Neosho Valley to a point where the Leavenworth and
Lawrence road entered it. In accepting the act in February, 1864,
the Legislature of Kansas enacted that if Congress, before the 4th
of March, 1866, should consent that the Neosho Valley branch of the
road be extended so as to intersect the Union Pacific road, eastern
division, at or near Fort Riley, and should make a grant of lands
for such extension of like amount with that granted per mile for
the construction of the main road, then the Atchison, Topeka, and
Santa Fe Railroad Company should proceed to construct such branch.
The act thus suggested Congress did not pass, but on the 1st of
July, 1864, it did pass an act making an additional grant of land
for the construction of a railroad and a telegraph line from
Emporia, via Council Grove, to a point near Fort Riley, on the
branch of the Union Pacific Railroad. The grant was subject to all
the provisions, restrictions, limitations, and conditions in regard
to the selection and location of the lands, and otherwise, of the
Act of March 3, 1863, 13 Stat. 339. Afterwards, the Atchison,
Topeka, and Santa Fe Railroad Company, with the assent of the
state, transferred all its interest in the grant to the defendant
in this case, the Missouri, Kansas, and Texas Railway Company -- a
company which was originally known as the Union Pacific Railroad
Company, Southern Branch, and is so designated in the Act of July
26, 1866, which we shall presently consider. This Act of 1864 was
never accepted by the State of Kansas. No route of a road between
the points designated in it was ever located by the company, nor
was any map of a proposed route ever
Page 97 U. S. 500
filed in the Department of the Interior. Nothing, indeed, was
done by the State or company under the act until after the grant it
offered had been superseded by the acceptance of the greater and
more valuable grant made by the subsequent Act of July 26, 1866,
which covered the same lands. 14 Stat. 289. This last act granted
to the State of Kansas, for the purpose of aiding the company to
construct and operate a railroad from Fort Riley, or near that
military reservation, down the valley of the Neosho River, to the
southern line of the state, five alternate sections of land per
mile on each side of the road, with a clause that in case it should
appear, among other things, when the line of the road was
definitely fixed, that any section or part of a section granted had
been reserved by the United States for any purpose whatever, then
an equal amount of land was to be selected from the public lands
nearest the section, and with a proviso excepting from the
operation of the act all lands previously reserved to the United
States by Act of Congress or other competent authority, for the
purpose of aiding in any object of internal improvement.
The grant thus made was accepted by the company in August, 1866,
and its acceptance was filed in the Department of the Interior. In
September following, the line of the proposed road was surveyed and
a map of its route prepared; in November, 1866, it was filed in the
office of the Secretary of State of Kansas, and in December
following in the office of the Secretary of the Interior. In March,
1867, the adjacent lands were withdrawn from sale to meet the
grant, and in June, 1870, the road of the company was completed to
the southern line of the state, and soon afterwards was accepted as
a first class road by the governor of the state and by the
President.
Upon the principle already announced, in considering the time
when the grant to the plaintiff took effect, the title of the
defendant to the lands thus set apart to it, had there been no
previous disposition or reservation of them, would have become
perfect, and by relation have vested from the date of the act. But
so far as the lands were identical with those covered by the
previous grant to the plaintiff by the acts of 1862 and
Page 97 U. S. 501
1864, the title could not attach, as it had already passed from
the government.
The rights of the contesting corporations to the disputed tracts
are determined by the dates of their respective grants, and not by
the dates of the location of the routes of their respective roads,
although in this case the location of the route of the plaintiff's
road was earlier than that of the defendant's road. This
consideration disposes of the case and requires the affirmance of
the decree of the Supreme Court of Kansas without reference to the
reservations contained in the grant to the defendant.
Decree affirmed.