161 P. 562 | Or. | 1916
Lead Opinion
delivered the opinion of the ■court.
Although other lands are included in the complaint, the parties stipulated disposing of the title to all except the following: Lots 2 and 4 of section 5, and lots 1 and 2, the north half of the northeast quarter, and the northeast quarter of the southeast quarter, of section 7, all in township 5 north, range 30 east, Willamette Meridian. There is substantially no dispute . about the facts in the case.
“That there be, and hereby is, granted to the ‘Northern Pacific Railroad Company,’ its successors and assigns, for the purpose of aiding in the construction •of said railroad and telegraph line to the Pacific Coast, '* * 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,*642 and free from pre-emption, 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 pre-empted, 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. * * Provided, further, that all mineral lands be, and the same are hereby, excluded from the operations of this act, and in lieu thereof a like quantity of unoccupied and unappropriated agricultural lands, in odd-numbered sections,, nearest to the line of said road may be selected as above provided. # * ”
The line of the road was definitely fixed, and the plat thereof filed in the office of the Commissioner of the General Land Office June 29, 1883. This act has been construed to operate as a present grant begin- • ning with that date, so that eo instanti the title of the-grantee vested in all lands to which the statute applied.
“Not only does the land once reserved not fall under the grant should the reservation afterward from any cause be removed, but it does not then become a source of indemnity for deficiencies in the place limits. Such deficiencies can only be supplied from lands within limits designated by the granting act or other law of Congress.”
“When the withdrawal order ceased to be in force, the lands so withdrawn did not pass under the latter grant, but became a part of the public domain, subject to be disposed of under the general land laws, and not to be claimed under any railroad land grant.”
If the filing of the swamp-land list therefore constituted such a claim as to exclude the land from the, operation of the railroad grant, the cancellation or rejection of that list would not operate to extend the grant over the disputed tract. In other words, the grant does not purport to affect or attach to any subsequent status of the title. On the other hand, if the mere filing of the swamp-land list did not affect the title granted in praesenti by the congressional enactment, the holding of the plaintiff and his grantors has been clearly adverse for sufficient length of time to ripen into a fee-simple estate as against the defendants. Still further, under the authority of the Bar-don Case, the indemnity selections could not be made from any land except what had always been exempt from any claim excluding it from the provisions of the act in the first place. In default of other legislation, the grant embodied in the act of July 2, 1864, attached at the date of the filing of the plat of definite, location or never. Whatever the general government
The plaintiff comes within the reason of the rule of Boe v. Arnold, 54 Or. 52 (102 Pac. 290, 20 Ann. Cas. 533), to the effect that one may enter upon public lands, and by holding the same adversely to all persons except the government may acquire title thereto as against those other parties. Under the authorities quoted, it is clear that the rights of the defendant under the act of July 2, 1864, never attached to this land, and that it had no right to include it subsequently in its indemnity selections. It is also equally plain that as between the parties to this suit the adverse possession of the plaintiff and his grantors for more than ten years has vested the title in the latter as against the company.
The decree of the Circuit Court is affirmed.
Aeeirmed.
Rehearing
Modified on petition for rehearing, January 30, 1917.
On Petition eor Rehearing.
(162 Pac. 862.)
Mr. Charles A. Hart and Messrs. Carey é Kerr, for the petition.
Messrs. Raley é Raley, contra.
In Banc.
delivered the opinion of the court.
In a petition for a rehearing it is contended that the defendant, the Northern Pacific Railway Company,
“Provided, that the foregoing propositions, herein-before offered, are on the condition that the people of Oregon shall provide by an ordinance, irrevocable without the consent of the United States, that said, state shall never interfere with the primary disposal of the soil within the same by the United States, or with any regulations Congress may find necessary for securing the title in said soil to bona fide purchasers thereof”: 11 U. S. Stats. 383.
When the patents were thus issued the United-States thereby made a primary disposal of the soil,.
The decree will therefore be modified so as to enjoin the defendants, their agents, servants, etc., from interfering with or disturbing the plaintiff’s possession of the real property last described until the question is determined in the manner suggested. With this alteration the former opinion is adhered to in all respects. Affirmed. Modified on Rehearing.