Nelson v. Northern Pacific Railway Co.

TERM, 1902. Syllabus. we said to What have answer that objection suggests not forth. The to novation set seem mean that is allegations but the old this is not a discharged, question a new novation. We are bilateral contract made dealing wjth to serve and of mutual The undertakings pay. implica- up is old contract is material so far tion that the discharged only it shows that can be enforced without rights plaintiff’s, third unjustly disregarding person. to consider whether an

It is unnecessary ground independent is of trade shown the threatened revelation of jurisdiction or to discuss of the defendant the different seerets, position be not disclose in- Whether secrets Schultz. obligation is contract or a case made out. not, dependent express will arise unless a difficulty independence question of the statute of frauds, the evidence because is encountered have not to is not a matter of We consider but that pleading. in case the succeeds, how far the should plaintiff injunction go as an or that anything plaintiff suing except objection assignee.

Decree reversed. COM PACIFIC RAILWAY v. NORTHERN PANY. STATE OF WASHINGTON. COURT OF THE ERROR TO THE SUPREME Argued 26, 1903. October 16,17,1902. January No. Decided 2, 1864, July c. The.grant made the act of lands only Company, the odd-numbered embraced the time of definite States had at alternate of which the United sections (cid:127) appropriated, reserved, sold, granted otherwise title, or full location provided when- rights,” or preemption or other claims and free from parts of sections location such definite ever pre- reserved, “occupied by settlers” sold, granted, by the disposed of, selected empted lands be other should or otherwise ” beyond limits ten miles not more than in lieu thereof president directed cause By act the the same the alternate sections. NELSON v. RAILWAY. NORTHERN PACIFIC

Syllabus. th,e surveyed forty line to be miles width on both sides the entire required might was fixed and fast as road after the route road; provided and was odd sec- construction ” entry hereby granted tions liable sale or or. of laud should not be to except by they surveyed, company before or the after were provided 1873, general in routе of road was fixed in as the act. The the year and in the same the land directed the local officers office to withhold ” entry from or falling forty- sale all odd-numbered within the road, grant along mile limits of the of the line Congress passed public lii an for of 1880 act the relief settlers on the lands. Nelson, qualified acts, In to enter lands under the homestead tract, question upon continuously occupied the in and went thereafter good as his with the intention in faith residence to avail himself of the company benefit the homestead acts. the railroad definitely of road, 18, 188(3', completed and located its line of November had a sec- forty coterminous with the land here controversy. tion of miles residence, land, occupied by a unsurveyed, when Nelson as The was 1898; surveyed surveyed, attempted was until but as soon as not he to ;it law.s', application rejected by enter under the homestead but his was company patent given local In 1S05 railroad a land.officers. question. to the'land in Held: (1) Although patent controversy, a held for the land in occupant appeared judgment was entitled under the local law to if it equitably possession company. that he entitled against to as Nelson, (2) occupancy protected of The as ahomestead settler was 1864, prior although occupancy such act to the land entry sale, had the order of from office issued withdrawal or based general route. (3) acquired company The railroad no vested interest granted in the prior location; as occupancy to definite Nelson was in the such, question a laud in homestead at settler tlie time of lo- cation, pass by did not company; land railroad his title was the better one. (4) Nelson, protected, protected by The title of if not otherwise ' 1880, Majr.14, of the act of third section ca which-contains qualified public lands, confirmation settlers oh intention, unsurveyed, or whether of claiming same under the homestead laws. (5) directing The order of withdrawal the local land office to withhold ” from or “sale odd-numbered sections withimtlio limits ‘ could, rpute p. not event the occupancy within ' prior ope those sections to definite location in good who faith law; intended to claim the benefit such-right occupancy being distinctly recognized ,by the act of and such' ’ But,-if.this required being of withdrawal not that act. order of'jSSO, so, application pt.-ilic lands, iu the act its were „ome already company person, become vested must TERM, 1902.

Statement of the Case. merely be held to have so modified the order of based withdrawal route, occupancy order would not affect faith, Nelson, good made in settlement the case of after such withdrawal location. Company Railway brought action The of the State of of the courts recover one Washington in error the southeast section quarter plaintiffs twenty- north of fourteen, east of twenty, seven,-township range the. in Kittitas meridian, Willamette County, State —the be the owner fee and that the claiming alleging were in unlawful of the land. .defendants possession defendants denied each of thé The allegations petition, tried under and the case was facts, ^hich stipulatiori ' of the trial were conceded be true. The purpose facts so conceded were as follows: is a of Wisconsin, corporation succeeded, of this action, to the commencement to whatever

prior right, title or claim the Northern Pacific if had, Company in The latter the land was created any, dispute. corporation 2, an act of c. 1864, 217, by July Congress approved granting lands in of a railroad and aid of the construction line telegraph from on the Lake Sound Pacific coast Puget Superior by and northern the acts resolutions Con- route, joint thereto and thereof. 13 amendatory, Stat. gress supplemental will refer to those sections of 365. We hereafter the act, upon which the decision this case construction mainlv de- pends. in

The railroad terms duly accepted writing company and on the 29th the' act of D. day December, A. Congress, such was served on President of 1864, the Uni- acceptance ted States.

The fixed th'e route of its road extending with within coterminous said miles land, forty thereof, of such route with the a of the Gen- filing plat Commissioner eral Land Office 20,1873. Thereafter, November 1, August that officer transmitted to the and receiver of 1873, register in for the district which the land was lánd office situate the instructions: letter.of following v. NORTHERN PACIFIC RAILWAY. Ill of the Case.

Statement hav- The Northern Kailroad Gentlemen :(cid:127) Company a route in this filed map showing department ing Sound to a connection with line, of their branch Puget in near Lake Pend d’Oreille Idaho main line Territory, their which is herewith trans- to be I have caused diagram prepared of the land limits mitted, forty-mile grant along showing are' district, said line, through your you hereby extending all the from sale or odd-numbered to withhold directed limits not included within these already sections falling The even sections for the main-line withdrawal period. .are increased acre, $2.50 price per subject This withdrawal takes effect from Au- entry only. filed the date when the 1873, 15, gust with of the Interior, the sixth sec- Secretary, required tion of the act of said 2, 1864, July company.” organizing

The letter of Commissioner and the therein re- diagram ,-land ferred to were received and local office No- -filed vember 17, 1873. land was within the limit dispute of th< forty-mile in the designated diagram.

On December 6,1884, the railroad located company dejmitely line of its railroad, coterminous and within less than miles of the land forty controversy, plat filing line, approved by Interior, the office of Secretary Commissioner the General Land arid Office; November constructed arid a section of completed of railroad and miles line forty over the telegraph extending location and line coterminous with the land here in The President of the United controversy. States having ap- three commissioners to examine pointed same, the com- the. missioners that to the having performed duty reported Secretary on the 18th of November, 18o6, that the lines day were com- all the act of pleted-in respects required Congress. the 30th On of November, the* transmitted Secretary that to the President with a report recommendation that the railroad and line bé and on thе 7th telegraph accepted day 1886, the President December, approved recommenda- tion. TERM, . 1902.

Counsel for Parties. The United States executed and delivered, 10, 1895, to May the railroad its letters company patent, purporting convey to the the above tract under the terms and provisions act various acts and resolutions of joint thereto and thereof. supplemental amendatory year 1881, three years location of before the road, the defendant Nelson went Henry above land and and has since it, resided occupied continuously thereon. It is that he was at the time agreed to enter qualified lands under the act of . 20,1862, entitled Congress approved May “ An act to secure homesteads to actual settlers on the public and under domain,” the various acts thereto and supplemental thereof. amendatory

The land when and was not sur- occupied unsurveyed, until 1893. But as soon as Nelson veyed attempted . enter under the laws homestead of the United in States United States district land office. His proper application was, however, receiver rejected by register because, their with conflicted to the opinion, Pacific Eailroad Company.

The defendant Peter Nelson is of a occupancy portion of the land under license from his codefendant question Nelson. Henry facts so was that stipulated, the rail-

Upon judgment road was not the owner, had no claim to and was not to the entitled possession that the dispute, defendant Nelson was entitled to remain in Henry possession virtue of laws of the United States. Upon Court appeal Supreme Washington judgment reversed, and the cause remanded with directions to enter judg- for the ment company. Washington, James Mr. Hamilton Lewis error. Mr. plaintiffs G.H. Aldrich,, Thomas B. Hardin and Mr. Ralph Kaufman Mr. him on the brief. were Burnt,

Mr. B. Kerr for James defendant error. Mr. W.O. him on was with the brief. RAILWAY. PACIFIC NORTHERN v.

Opinion of the Court. statement after foregoing making Habían, Mb. Justice of court. delivered facts, opinion of it is to of the case the merits proper 1. Before considering hоlds the of railroad patent that although remark defendant, controversy, States United State, was entitled judgment, the laws according entitled to was that he possession equitably appeared if.it Burmeister 530 et Codes, 2 Hills’ seq. ; plaintiff. against § 1 Wash. Howard, Ty. 207. Pacific Bailroad Com the Northern have seen that 2. Wé c. 2, 1864, the act July created Congress was pany of the road the construction in aid of of lands a making grant that When was Sound. grant from Lake Puget Superior those entire between points country made substantially Indians, uninhabited few as well as very untraveled except to' the United States. The time, at that were whom, friendly its as will object grant, appear language, principal to secure safe mails, speedy transportation thet stores, munitions of war and means of a rail troops, public and to that end and in order to road telegraph, bring into market it was deemed lands public important encourage the settlement route. The country along proposed in that vast were and was region unsurveyed, when known would be they course, surveyed. Congress, if knew that invitation of the Govern immigrants accepted homes ment to establish lands, unsurveyed public they do so the belief that would the lands would be that surveyed, would be their that occupancy would be respected, they an their titles opportunity accordance given perfect the homestead laws. was the

Such situation when the act of 2, 1864, was July the act must be in the passed. Necessarily interpreted light that situation. It shoidd not be so as to interpreted justify that the laid Government for honest charge trap immigrants who risked a wild, dangers in order unexplored country, establish homes for themselves and their they might fami- lies. And should view supposed -VOL.clxxxviii — 8 TERM,

Opinion of the Court. with the which, the interests aid only lands, to connect munificent Lake empowered with a railroad and Sound line. Superior Puget telegraph what us now see is the fair the act under import Let both claim possession. parties the third section of that act it was, other By among things, That follows, be, as wit: there and is, provided hereby ‘ to the Northern Pаcific Railroad its suc Company,’ granted for cessors and in the construc assigns, purpose aiding tion of said railroad and line to the Pacific coast, telegraph the safe and and secure of the mails, speedy transportation munitions of war, stores, and over the route troops, public said line of alternate section railway, every land, public odd to the amount of mineral, numbers, designated by twenty alternate sections on each side of said mile, railroad line, per said as the Territories of may company adopt,0through and United ten alternate sections of land States, mile on per it each side of said railroad whenever passes through any whenever on the line thereof the State, and United States nqt .have full or title, reserved, sold, otherwise' granted, ap from' and or other claims or rights, propriated, free road is the line of. said and at the time definitely0fixed, Commissioner, in the office of the thereof filed Gen plat and to said Office; whenever, time, eral [of or said sections shall sections have location,] any'of parts sold, reserved, or hy settlers, granted, occupied of, or other lands shall otherwise be selected preempted, disposed said under direction of lieu the Sec thereof, Interior, sections, in alternate retary designated by odd moré than miles numbers, limits of beyond te§ said alternate sections. ...” was, the sixth section of the act other

By among things, as -follows: provided “ 6. enacted, And he That the President of the § further States shall cause be United forty miles width on both sides of entire line of road, said after route shall be fast as fixed, may required railroad; odd of said construction PACIFIC RAILWAY. NORTHERN

Opinion of the Court. not be liable to sale, shall granted entry, hereby pre- are before or after said com- they survéyed, except by emption facts omits the act.” stipulation pany, provided words 6 but of the omitted ; of section this court latter part are as follows: But notice. will take They judicial pro- hundred the act of visions of eighteen September, forty-one, and the acts thereof, рreemption rights, amendatory granting ‘ An act to secure homesteads ‍​‌​​‌‌‌‌​​​‌​​‌​​​‌​‌‌‌​​​‌‌​​‌​‌‌​​‌‌‌​​‌​​‌‌​‌‍of the act entitled to actual domain,’ settlers on the approved May twenty, eighteen and the hundred and shall same are ex- be, sixty-two, hereby, lands on the line of said road, tended to all other when sur- those said And hereby granted veyed, excepting company. sections shall not be alternate sold reserved Govern- less than two dollars and ment at a cents fifty acre, price per for sale.” when offered The railroad insists after the order of with- ” “ or in from sale made the

drawal Commissioner entry by the Land based its Office, route, no upon map general be a settler could odd-numbered acquired by upon any right section of land within the limit alternate forty-mile indicated., in the route. As the lands map were- by general question not Until the contention means company’s that the the withdrawal in years during succeeding 1873 all twenty the sections covered the route which by general would, to be survey alternate appear sections, odd-nuinbered were excluded from settler absolutely occupancy by any having in view the homestead laws.

The defendant insists that the act of 1864 the recognized right to an section immigrant occupy any public lands on the route to time of the definite location of general up road, it was in faith with done provided good intention to his title under the homestead laws whenever it perfect became to do if so, that at the time of possible it location definite that in he was of an odd-numbered appeared al- occupancy him; section the railroad could not disturb ternate the sixth section-of the act of By 2,1864, was declared July “ that odd sections that act hereby is, granted,” by sale, should not be liable or granted, before preemption TERM, 1902. tjie Opinion of Court. were as after except by they surveyed, pro- have also third seen, vided the act. But we at the in looking act, which wasthe section section, Congress granting did odd-numbered alternate section within the every grant but the odd-numbered limits only specified, alternate «title, which the States had full United whiqh. reserved, otherwisé sold, not been granted ap- previously “ which were from or other propriated, free ” line at time the of the road was claims or definitely select lands, right, to.the giving railroad.company fixed— found, or such were at the within certain date limits, place of or to be location, have disposed occupied definite homestead settlers.” by the railroad first whether The company acquired inquiry reason interest vested any dispute merely of its Department acceptance by order of of withdrawal route or reason merely after route land, other did words, (cid:127)general estab- from the domain and cease become lished, public segregated be lands, not to to occu- subject so part homestead to definite settlers, faith, prior pancy, good have a These direct location ? bearing present questions we it did think, did not as, if for, issues; intend — should vested interest the railroad —that acquire understand we can location, to definite lands, why these its excluded occupied ” time of the road. at the location settlers we answered are, think, above distinctly questions us see if recent decisions court. Let negative case, not the "suchbe v. 139 S. 1, In & Northern U. St. Paul Pacific, Pacific of a route that after a was filed held general was to railroad location; to grant up .definite to definite nature of “float,” in the previously otherwise been' or reserved, sold, location had appro granted “ or other claim which there was or preemption priated, ” of did pass by Congress. right 152 v. Railroad States Northern Company, In United Pacific PACIFIC RAILWAY. v. NORTHERN Opinion of Court. of the court said : The act

U. S. 284, 296, granted land, Pacific Railroad to the Northern only Company public or other claims or at the . . . free from rights preemption and a thereof filed time its line road fixed, plat definitely Office.” the office of the Commissioner General U. Sanders, Company railroad that the S. “ it was 620, 634, 636, adjudged an inchoate route, right its only general acquired, fixing no right the odd-numbered sections granted by Congress, , until the road was definitely attached section any specific accepted. filed and Until located and the thereof definite location it was dispose competent as it saw road lands on the route general after that as In the same case the court, observing proper.” the lands there from claims at the date were not free dispute definite was of no what done location, consequence that them after date, : The proceeded only ground upon which a view can be rested is the contrary provision ‘ sixth section of the act of 1864, that the odd sections of land shall be liable to sale or hereby granted preemp- tion before or after are said they surveyed, except by But this act.’ this section is not to be con- provided by strued without reference other sections of the act. It must be taken connection with section three, which manifestly or other claims and contemplated accrue or hecomsattached to the lands rights might granted after route road was line fixed before location was established. the. Literally interpreted, definite words above from section six would tie the hands of the quoted so that Government even it could not sell of the odd-num- bered sections the lands after the route was fixed— an inadmissible view of the interpretation wholly provisions in the third section. The third and sixth must taken so taken it must be together, nothing adjudged in the sixth section the Government from prevented disposing of the lands line of loca- fixing for the reasons tion, or, stated, under the existing receiving, statutes, such lands mineral lands.” applications purchase TERM, 118 Opinion of the Court. announced the Sanders case were reaffirmed principles Dillon, S. v. 167 U. court It Menotti adding: that as said of an true, cases, executive many object from sale, order private withdrawing preemption, of a lands route railroad is to within general preserve until the unencumbered, lands, completion acceptance where the was, road. But here, odd-numbered grant within exterior £not sections, lines, sold, reserved certain otherwise United States, to which disposed by or homestead claim not have may at the attached, time line said road is fixed,’ the of a definitely filing map route and the of a withdrawal order did general issuing the United States, at time any prevent by legislation, the definite location of the from road, or other selling, reserving wise of the lands but which, for such disposing any legisla would in' have virtue of such tion, become, definite location, of the railroad company.” property In United States &c. Railroad, U. Oregon S. 28, 43, which involved the claims two railroad conflicting companies the court to to certain lands determine the required effect route filed of a Rail map as well as the extent of the to it, road made grant Company, “ If therefore the Perham court said : of 1865 were map conceded for the discussion have present purposes ‘of route sufficient as a ’—and more been map nothing be claimed for it—these lands could can not be re possibly been if it had (even having brought by garded been within Northern Pacific Rail grant accepted) have road become so thereby Company, segregated as to domain of their preclude possibility being earned other railroad under statutes enacted companies b}r of that after the and before filing Congress any location of its line.” In the same case: views we have be said that expressed opposition may the clause in the act 25,1866, the selection July providing under the direction of the Interior of lands for Secretary in lieu of should be found to Oregon Company sold, reserved, have been occupied homestead set- granted, NELSON v. PACIFIC NORTHERN RAILWAY.

Opinion of the Court. or otherwise shows that tiers, of,’ preempted disposed did not intend to include but intended to exclude from to that have earned that could Pacific its Northern Railroad Company by definitely fixing and its of route Undoubtedly filing map location. those lands would been regarded appropriated having if located, when route of the road definitely Oregon to that of the Northern Pacific Railroad date the routе prior had been and if within such lands were fixed, definitely lands these said, exterior lines of that route. as we have But, not, and had 25, 1866, were within the of the of limits July grant was defi at that of the road when the route time, Oregan of the Northern located, been for the benefit nitely appropriated Pacific Railroad for the reason that the latter com Company, had not location. then filed of definite pany any map could tahe no lands Company except Pacific such as were at the time its line was definitely unappropriated It of 1864 to the accepted subject possibility grant fixed. that before its line was author fixed, Congress might, definitely ize other railroad lands within its corporations appropriate in it to lieu of route, select other general allowing ' so The lands appropriated. here in were dispute consequently to be subject disposed when the act by Congress ; and line of the passed (the Northern Pacific Railroad not having located to the of the for definitely prior passage feiture act of 1890) the became entitled to Oregon Company take lands and to receive therefor in virtue its patents of definite accepted map location.” See also Wilcoxv. Eastern Oregon Co., 176 U. S. and 51, v. Same, 176 Messinger U. S. 58.

The cases above cited determine that the railroad definitely no vested company acquired interest section any particular until land after a definite location as shown an accepted of its and that line; until definite location the map land covered route was a that general “float,” at is, large. support the 'railroad proposition ac- an interest the lands quired its route dispute, upon general established, reference has being been made to some expressions TERM, 1902.

Opinion of the Court. Field in Mr. Justice Buttz Northern opinion to the effect that when the Railroad, 119 U. S. that road was made known filed route of by map duly law withdraws from sale or accepted, extent of odd miles each side. The ob- sections forty in this it is ; of the law ject particular plain preserve in aid for the which, construction of the it is But it is road, evident, view of both granted.” decisions, that is not to be taken subsequent language the other literally portions apart opinions eminent who delivered the jurist If, court. judgment filing acceptance route, law withdrew the odd-numbered sections, then the previous cases until definite location holding many with no interest in float, specific being acquired by the railroad would be there meaningless; would some difficulty such lands to Congress appropriating prior definite location. it is Indeed, manifest that the court did not (cid:127)mean to announce new doctrine in the Buttz for Mr. case; Justice when Field, that that case, said delivering judgment the charter Northern Pacific Railroad contem- Company “ in the officeof the by Commis- plated filing Office, the General sioner of map showing defi- road, nite of the line its and limits the location to such grant not time, odd sections have at that been reserved, alternate or otherwise free from sold, granted, appropriated, preemp- other claims . tion, or . . Nor is there grant, rights/ inconsistent this view of the sixth section as to anything in the clause route, third section general making such odd sections as have not been grant only upon operative or otherwise reserved, sold, and to which granted, appropriated, and other claims have not attached, when preemption location has leen map of filed.” Further, we had occasion Northern Railroad v. Pacific Sanders and States v. United &c. Oregon Railroad Company, cited, above to limit the broad in the Buttz case language that after the route fixed the land implied was general by was withdrawn law the railroad We company. v. NORTHERN PACIFIC RAILWAY.

Opinion of the Court. “ last named case: This in the too if said broad language lands, it is construed that when express thought public ‘ ’ ‘ lines of a route,’ within the exterior are appropriated of such from the time route is so filed, prevent them from to and from earned by Congress being granted being another railroad of a prior corporation filing definite location such general company designating route.”

It results that did railroad acquire vested in the land interest here virtue its map dispute route or the order based on such withdrawal map; and if such land or other was not free ” claims or homestead settlers at rights,” occupied the date of the definite did not location on December 8, 1884, of 1864. to that pass by Now, date, grant is, in 1881, who is Nelson, conceded to have been qualified enter lands under the homestead act of 20, 1862, May went this land has upon resided occupied continuously thereon. The land until but as soon surveyed was.not as it was he enter under the home attempted stead States, laws of the United but his was re application in'the jected, solely because, of the local land officers, judgment it conflicted with the to the Northern Kailroad He was not a mere Company. but went trespasser, land in faith, as his good and, conduct awith showed, plainly view to residence thereon, for'the purposes speculation, and with the intention of the benefit of the taking law his title under perfecting law, whenever the land And for fourteen surveyed. before the railroad years ex an and without jparte notice to proceeding, so far him, as the record shows, obtained from the Land Office of its claim, recognition sixteen before this ac years tion was he maintained an actual brought, residencie land. It is so in this case. As the stipulated railroad had vested interest the land when acquired Nelson went his it, continuous of upon with a it, occupancy view, good it faith, under the laws as soon as it was acquire homestead constituted, in our a claim surveyed, the land opinion, upon TERM, 1902.

Opinion of the Court. of the Northern Pacific act of within 1864; and meaning claim when the as that existed railroad company definitely its the land located line, was, words by of that express act, excluded from the grant. This view the hona settler in his protects home, estab- fide invitation

lished Government under diffi- great no does culties, the railroad injustice for, company; n after to such grant odd-numbered sectiоns of restricting- lands, within lateral were specified limits, as free from pre- “ ” or other claims or at the time line emption rights road was definitely fixed, the act of 1864, as we Congress, “ seen, have And to said proceeded: whenever, time [of definite said or sections shall parts location] reserved, have sold, homestead granted, hy occupied settlers, of, otherwise . other lands shall he se- disposed preempted, in lieu hy lected said etc. The words “occu- thereoff ” homestead settlers show that by intended pied Congress by charter the Northern Pacific Railroad Company —whatever have intended as to other may companies receiving grants lands —that homestead by settler, occupancy to take the the intention benefit homestead consti- laws, at the date of which, tuted a claim definite location, existing from the exclude land that would otherwise be might did it. If not intend thus to covered Congress protect homestead the reference to settlers, lands being occupancy “ at date location, definite settlers,” occupied by useless to reserve to the and was meaningless, in lieu of those lost such oc- selecting privilege knew, the act of 1864, when passing cupancy. Congress establish his home could know whether one west to going him would be an even-num- unsurveyed occupied or odd-numbered sec- Hence, bered section. provision odd-numbered sections home- tion 3 relation to occupied of such a could not be stead settlers.” The efficacy provision if further It destroyed legislation. except ” words declared that the other claims or among the land must at the location in Avhich be free time order the railroad were aris- take, claims company might 123 v. NORTHERN PACIFIC RAILWAY.

Opinion of the Court. homestead settlers. Such Con- out of settlers ing occupancy should be in in declared their effect, protected' rights, gress, should be reimbursed lieu lands near railroad company we have commenced seen, Nelson’s occupancy, by. location of the road occurred in 1884. That

while he resided the land continuously dispute occupied upon settler after 1881 is admitted. a homestead (cid:127) was that If it be said that Nelson’s claim of mere occupancy, the an- formal for the land, unattended by entry application swer is that was a condition of for which he was things and his law, were not les- anywise responsible, rights, reason of that fact. The land was not sened until he took twelve after his residence it, and under the up years he could not homestead law initiate his formal right by of record until such He acted with as much survey. prompt- ness as was under the circumstances. possible “ In Ard v. 156 Brandon, U. S. 537, court said: The law deals with one tenderly who, faith, good goes upon with a view of lands, a home making thereon. If he all that the statute does as the condition of prescribes acquir- the law him in ing rights, protects those and does not rights, make their continued existence alone depend upon question whether ór no he takes an from an adverse appeal decision the officers with the charged his duty acting upon applica- court, tion.” In the same case the these quoted approval words from Clements v. 24 Warner, How. 394, 397: pol- of the Federal Government in icy favor of settlers upon public lands has been liberal. It their recognizes superior equity become the of a limited extent of purchasers land, comprehend- their over that of ing improvements, other person.” In the recent case of Madsen, Tarpey U. S. 215, —which was a contest between the Central Pacific Railroad and a who Company preemptor avail himself of the sought act of 1841—it was found September, as a fact that the land in had on at the it, date of dispute definite location, (which on October 20, of a 1868,) improvements bona settler; fide and one of the in the case was how questions far the based settler, bona were affected by occupancy, fide TERM,

Opinion of the Court. the absence a local land office which could made some record of his or. This court said: It is application entry. true no that there was then local land in office which those seeking e to make or homestead fil de entries could their preemption statements entries, or make and the want of such an claratory office is made the Court of the State one of the by Supreme main the land did rail the grounds holding pass road We with that court in its discussion company. agree fully in involved the the Govern failure of general principles ment to a local land office. The one of who has provide right with intent malte a or occupied, homestead actually preemption be mere cannot lacle in which to entry, by aplace of defeated If make a record his intent. ... inwas Olney possession of this tract before 20, 1868, October definite [date location] vievj with a a homesteador entering claim, preemption and was of his to make his or de simply ability deprived entry statement a local the lack land he by could office, claratory when such office have established, made his undoubtedly, in such or statement as to his declaratory entry way protect In the case, settler waited from 1881 to present rights.” 1893 for land to be and as soon as that was done surveyed, he to enter it the homestead law under attempted proper his claim but was overruled unfounded office, upon theory, that the land was covered railroad law, grant. by we have on the as the So far act proceeded ground to the railroad sections to alternate granted time of definite location States had which at the United or and which reserved, sold, full title, granted appropriated, wera or other claims or at date of free location, authorized the select other in lieu'of those' then found to be homestead occupied .from settlers,” excluded land occu- so grant any intention title under the homestead perfect pied to that end laws whenever way opened by survey. 3. But the case of the does not entirely appellant depend upon of the act of 1864. It is on this view placed impregnable ground 1SS0, 89, c. entitled An the act act for the re- May on lands,” lief of settlers which was force when, public RAILWAY. PACIFIC NELSON NORTHERN Opinion of the Court. the land act is as dispute. settled Nelson timber- when a 1. That preemption,

follows: claim written his file a shall relinquishment claimant culture claim such shall be the land covered office in the local further action on without to settlement as- held open Office. 2. of the General Commissioner § part the land office contested, fees, has where paid all cases any person homestead, or the cancellation any preemption, and procured be notified he shall register timber-culture entry, land is situated of which such of the district land office from date of such shall be allowed thirty days cancellation, said shall be lands : That Provided, said register notice to enter of such notice, for the of one dollar to a fee giving entitled be That and not contestant, reported. § .to paid settle, or who shall who has settled, settler hereafter whether States, lands of the United the same under the intention of claiming unsurveyed, n file his be allowed the same time to home- shall laws, homestead his stead the United perfect original entry application Office as is now allowed States Land to settlers under the pre- to their claims on laws and his shall record, put emption right back to the date of the same if he settlement, relate settled 21 under laws.” Stat. 140. the preemption statute is third section of this a distinct The confirmation of who a had of theretofore or settled person rights qualified “ of settle on lands of the United any should public thereafter or with the -whether intention States, surveyed unsurveyed, under the same homestead laws;” claiming though, th<3 deemed of lands could be that character which no had course, become vested in a to such settlement railroad company prior of an location. It as we is, in virtue accepted definite seen, a fixed the law to have the adminis- principle relating a lands that railroad a mere float tration public definite and that location, lands, until to that date all prior limits at the routе, within exterior are entirely Government, to .as it desires. appropriated disposal -as its ac- railroad already shown, The acquired,.by no route, lands, interest in specific cepted TERM, Opinion of tiie Court. those to but to take at the date of which, definite only right had full title, the United States location, there was no and which were claim, homestead occupied therefore, settlers.” It United was, States ‍​‌​​‌‌‌‌​​​‌​​‌​​​‌​‌‌‌​​​‌‌​​‌​‌‌​​‌‌‌​​‌​​‌‌​‌‍competent the act of 1880—which was four definite years prior location of the Pacific Railroad—to additional give who then those had or rights settled, thereafter might faith settle lands. 'Some who have good upon any public made on this act seem to comments overlook the broad lan- of section that section embraces three, guage forget who but theretofore, those had who there- those only might settle on the lands, whether or after, imsurveyed. Nelson settled in which land, the railroad unsurveyed public no or vested interest and the third section specific if act of it did not him allow purposeless his title under the homestead as soon as the la/nd perfect laws, was surveyed. we have to the words meaning given “occupied by in the act of and what has 1864, settlers” been said

about the act finds decisions of the 1880, support It well in view of the will be con- Department. far-reachiing of the decision the case refer to some of present sequences those decisions. In Southern 3 D. 130, L. (Branch) Lopez, said that Teller the act 27, (1884), Secretary July

14 Stat. to the Southern Pacific Railroad Com- relating ‘ reserved, as were not such lands sold, pany, granted only or otherwise free appropriated, granted, ’ at date ; other claims location pro- ‘ that whenever time vided said said sections of sections shall have been homestead parts by occupied lieu settlers,. etc., lands be taken.” It will preempted,’ might that be observed this was the of the Northern language of Act 1864. The a “Now homestead Secretary proceeded: must be on made within- lands, would-be entry, terms the ‘other but claims’’ without the descriptive doubt; material to the case before the land' was me, question wherein not whether on surveyed, homestead settlement unsurveyed NELSON NORTHERN PACIFIC RAILWAY.

Opinion of the Court. it view to when is within said surveyed, with a land, entering it is. the words Construing terms.- 1 think together granting the lieu land selection, is evident that and those respecting ’ ‘ claims or land the of other from one the excepting ‘was home- [occupied] occupation by operation and the word idea ‘occupied’ stead settlers.’ The conveyed of the homestead law at date act, it were as. by foreign in the of land. reservation I need not element an essential of courts and of the decisions recite numerous that under the home- which settle principle Department, ’ ‘ it is which reserves stead law (except entry under which it is reserved settlement short period during and not of the act May 1880,) any occupation by it. The after act before or claimant language granting in this and we are to that respect, is therefore peculiar suppose with law, it was used deliberately, knowledge then-existing and We must for a important purpose. interpret special with this evident in accordance was purpose. Congress it was land's this act making grants- beyond aware far and to be surveys, occupied government regions the line of the advent settlers awaiting surveyor largely .by occupied section 6 the was homestead law their claims. By prefer after with- to the even extended survey, expressly before and from the odd sections after held and yet survey, ’ 3 land homestead section settlers occupied excepted ‘ knew that land could grant. unsurveyed from ’ ‘ it had as homestead in terms entered ; be homestead prohibited ’ ‘ ’ ‘ it was aware on.these only by entry / a claim reserved appropriated could grant, in the use without the words express exception; therefore ’ ‘ settlers homestead it intended make such ex- occupied indicate a and to kind exception, appropriation press different within the letter law, a class settlers not who within its those made cleаrly spirit, namely, though in advance domain surveys, home If this it under said law. claiming intention subsequently then purpose, employment peculiar a vain and useless such a referred to thing; language TERM, 1902.

Opinion-of the Court.' we are not had done. 92 U. S. suppose Congress thing It therefore follows that the land claimed whose by Lopez, are not and who proofs questioned any particular, preferred ‘ his claim was survey, a home- promptly upon occupied ’ stead settler when the to this grant tooh effect, hence excepted operation grant.” In Northern Railroad v. 10 L. D. Company Anrys, Pacific 258-9 which was a contest (1890), between the Northern Pacific Railroad and a homesteader who Company had settled “ on unsurveyed public lands, Noble said It is : Secretary urged that the land was not of the subject operation law at the date of Newland’s because settlement, unsurveyed, and that the homestead claim could have attached only by entry. But it must be remembered that the of the here parties must be determined a Construction of the by proper railroad rather than of the grant law. homestead' It must be admitted that in the case at bar is in line with ruling those In Department the case of many years. Southern 3 L. D. Company 130, the Lopez, question here discussed in presented connection with fully a grant framed words identical with used in those for-the grant Northern Pacific and it was held that a homestead Company, settlement on land with a view to unsurveyed when entering is within the term ‘other and that ‘it claims,’ ” other claims evident one or rights excepting land from operation grant occupation by ’ homestead settlers.” In thereof it was support urged was aware the act aid of a road that by Congress extending continent, across western half of the making far line beyond grant government surveys, regions and to be settlers occupied largely by occupied awaiting advent their claims. I this view surveyor prefer It concur. seems that it was to beyond question protect settlers as described above that from the Congress excepted ‘ tracts homestead settlеrs.’ operation occupied by Had intended to extend its to those Congress only protection so, who had made it would have said in other and entry, ap ‘ words. The lands to which propriate ordinary exception NELSON v. NORTHERN PACIFIC RAILWAY.

Opinion the Court. ’ would has attached have homestead right fully protected But further that class of settlers. went and made the instead of I do deem nec- test, entry. occupation the to cite cases to show that views Department essary on this have not point changed.” In v. R. R. 10 L. D. Co., 440, 443, Northern Spicer Pacific Pacific

the of an Indian were the Northern disputed by rights 18 3, 1875, 402, Rail road under the act of March Stat. Company the the benefit of the homestead laws of 420, 131, c. extending the title when ob States, United with certain restrictions'upon head of a to Indians tained, years twenty-one age, No abandoned the tribal relations. having family Secretary in force date ble of this act were at the said: pr'oyisions on definite of its when the attached location company’s rights relative to the of the In if matters claim and, road, alleged had been be he was at that dian, Enoch, true, date, many for the lemd in as his home, thereto years fi/oing upon question, as a he had intention to title thereto acquire homestead; thereon, had exdtir valuable and permanent improvements which time he the same all many during vated years, for claim, a it seems isme, it as his home. Such clearly claimed clause covered excepting grant to defeat be and, sufficient, if would my judgment, proven, True, the land. Indian the claim of the company for but it is well settled de- land, no claim record put that while defeat the such omission might rulings partmental his claim claim settler who duly subsequent places against claim it will not defeat such United record, against the land covered will be States, thereby exceptedfrom.the a railroad at- operation benefit the settlement right. inception taching subsequently v. L. D. Evans, 131, Railroad Company Pacific claim there cited. It is also well settled rest- authorities a/nd on residence ing settlement, improvements, аcquired prior attached to the date when under its right company’s from is sufficient.to the land covered except thereby grant, of such operation grant.” v.

In Northern Railroad McCrimmon, Company Pacific vol. olxxxsviii—9 TERM, 1902.

Opinion of the Court. “ L. D. it was said : of this 554, counsel for support appeal, contend did the railroad that Thomas not claim the but land, land, land as as railroad that, government although the land was from the withdrawal excepted general route, did not Thomas insist to take it as yet right govern ment but was satisfied to claim it under the land, railroad com Under the as announced in pany. ruling Department, the cases of Northern Railroad v. Company Bowman, Pacific 7 L. D. and Northern Company Potter, 11 L. D. determined whether only question is, was a there settlement on the land at date location of definite one to enter the land having qualification under the settle ment if these and, facts are laws, shown, land would he ex cepted operation such settler grcrnt, although known of have his but held the land might, under the right, it railroad belief that was land.” In Northern Railroad v. 16 L. D. Plumb, Company Pacific the land in

80, was within the appeared dispute primary limits of the as shown of grant definite loca company’s by map tion 1882, filed and 6, was also within the July limits of the withdrawal on of filed route 21, 1872. February Noble said: The raised Secretary only question appeal is as to whether the shown Plum was sufficient occupanóy to defeat the It 1881 Plumb took grant. appears pos of session the tract With an question, together adjoining which he tract, resided. In the forty-acre of 1882 upon spring he broke the entire tract and enclosed with a question fence, and has since of possession and land. improved He had never exercised the and was there- preemption right, fore to claim the land his under settlement duly qualified right. 1886 he contracted to In purchase acres, adjoining forty which he had from resided, and at the hear- upon company, to it was show that he also claimed land in ing sought at under the date of the definite location of grant question but the will not warrant such road, a testimony finding. ' at Being the date possession question the road location with valuable thereon, improvements and to assert thereto under the duly settlement right qualified v. RAILWAY. PACIFIC

NELSON NORTHERN 131

Opinion of the Court. land as serced such grant, he had right laws, defeat un- asserted him was that the claim fact subsequently and the can in from those settlement no- law der a different providing from the in the his Being wise affect premises. excepted rights Plumb was at to seek settlement, liberty reason his grant by law under which such under title from the Government taken.” might L. v. D. Benz, Company within the limits the' the land 229, grant dispute 6, as shown of definite location filed July and was covered the withdrawal route Smith said: 21, 1872. Secretary present February contest is on one and between the railroad company part, Hoy on the' other. If it made affirma Benz can be to appear and sufficient that either of these testimony, tively, by good inwas said land Benz, 6, 1882, parties, Hoy possession July when the line road thereto opposite fixed, definitely at and, the same had the same time, title to right perfect under the or homestead laws, excepted possession the land to therailroad reduced the contest to one between or, one Benz; be Hoy rather, tween and the he Hoy representatives Benz, died legal having since his It was that on entering found appeal.” 6, 1882, July was a Hoyt competent under homestead laws. entryman What has said as to the of the acts meaning scope of 1864 and 1880 is not inconsistent with decided in anything Maddox Burnham, U. S. Beach, Woodv. U. S. 548.

In Maddox v. Burnham the toas question a homestead a as certain occupant against railway company. to the third section of the act the Beferring of 1880, court said: this section for the By first time the of a right party entering the under homestead law was made to relate back time of his settlement. But this act was the’ passed' long after had railway accrued cmdthe title had company legal ricjhts It is to it. passed therefore, to divest such operative, legal title, as enlarge title against which any equitable rights the defendant theretofore had.” 'This was a case in therefore

132 TERM,

Opinion of the Court. which the claim based accrued after upon occupancy legal in the title had become vested railroad not a case company, in which the as a float with no was, here, attached right section. any specific Beach —which was

In Wood v. a contest between a homestead a settler and railway company appeared —it the line of definite location was filed December 6, a 1866, withdrawal followed while the 1867, arid settle- occupation did not ment the homesteader commence until June 8, 1870. Of title to the sections vested in course, granted legal railway filing acceptance company upon the withdrawal Besides location. pursu- ant to command of the act of 26, July express that as 4, Stat. soon as the rail- provided § file should of the Interior way Secretary the route line, its it shall be thereof, maps designating of said to withdraw from the market Secretary lands duty this act such manner as be best calculated granted by may tljte to effect the of this act and subserve interest.” purpose public It that one whose therefore, well be, right, might resting upon accrued, had as Maddox v. after Burnham, occupancy, railroad title as in who, one legal passed company, v. did not settle until after Beach, Wood public located its railroad and after road, definitely withdrawn from market lands had been to the di- pursuant could rections of an act the. Congress, not, express against an interest in them in railroad virtue of the acquire of 1880. act between the conflict decision now

Nor there rendered Colburn, U. S. 383 ; for, record in from the that case, the land opinion appears to have been settler, there claimerl at occupied wras definite location, the date of and the land, was not manifested an faith entry, occupation good at at time the local land office. It entry, or an attempt that the inchoate homesteader must held right the land office. case, as initiated present filing seen, the land and at have we occupied unsurveyed, PACIFIC RAILWAY. 133 NORTHERN

Opinion of the Court. the'land there could of such being unsurveyed, time occupancy, or land office. have been filing entry not then any us is Nelson’s occu- case before altogether different. 188Q. the act after While occurred passage pancy to a railroad which had did not ac- act apply company a definite location its road, dis- title, legal quired to such time to settle right prior tinctly recognized or with the inten- whether lands, unsurveyed, public under the homestead laws. In oc- the same tion claiming Nelson did not land here in dispute infringe upon cupying railroad there had not vested company; right any in date of such any at the location occupancy and the so railroad, land, line of the other occupied, constituted route, lands embraced general only “ at most, an inchoate float,” interest having, only at them, them, the time right if, loca- acquire of definite not tion, was homestead settlers” nor incum- “occupied “with or bered other claims The withdrawal rights.” merely ” from sale or based on a entry only 1873, gen- route of the did not eral road, identify specific sections, or not directed was the act of expressly required out of abundant caution made and in accordance with a only in the Land and did not and Department, could not" practice to homestead affect any rights given occupants by Congress of 1864 and 1S80. the acts Besides, the order made in from sale or all withhold entry odd-numbered sections fall- within the limits of route without ing practical so far as the land in value was concerned for ; such dispute land not been and there could not have been surveyed, sale lands. At the order of entry unsurveyed with- any-rate, drawal local officeto withhold directing from sale or ” the odd-numbered within the limits of the gen- route could eral of one of those prevent occupancy sec- tions definite location one who faith in- good to claim tended the benefit the homestead law; this, because right occupancy distinctly act of recognized by But if not so, this were the act of its application which havе become lands, vested in some already TERM, 1902. Brewer, Bgowsr Shtras, dissenting. must be held have so the order person, modified based route, withdrawal such 07'der merely would not or settlementmade in any occupancy goodfaith, affect in the as case the that Nelson, act, and passage after of This conclusion cannot to location. be because doubted, act the of 1880 made no lands covered exception public by merely orders of withdrawal from sale based entry gen- eral and because also which had not become route, lands, vested in the railroad the definite of its location to the line, were subject power Congress.

It results that Court of the State of Supreme Washington erred in not court affirming judgment original ju- risdiction favor the defendants. must reversed, the cause remanded judgment for be inconsistent with this may proceedings further

opiiiion.

Me. with whom Me. Justice BeowN Beewer, Justice Me. Justice Shieas concur, dissenting. in this It

I dissent from case. a unan judgment overrules one of this court, imous which nearly twenty judgment Land has been a the construc guide Department years Railroad Northern Pacific tion effect grant. Further, in the an entire section act it declares that Congress making which from of the work of con a section grant, inception has interested a struction always regarded parties full measure of secure intended company provision gave absolutely granted, meaningless, ho whatever. protection n that fixed the It is route admitted the- road in and within its road coterminous with controversy of such route with the thereof, plat forty'miles filing Land Office on 1873, General Commissioner August on November the odd-numbered sections 1, 1S73, and that were Land limits of route within the forty-mile withdrawn from sale even-num- Department notice increased of which $2.50, bered sections price PACIFIC NORTHERN «. RAILWAY. Shiras, Beewer, dissenting. Brown filed in the local land office. In 1881, order was immediately in error for first time thereafter, the plaintiff eight years and commenced its It the lands entered occupation. of its that construction road the is also admitted compan}' when the cоm- Now, its title to its land grant. has perfected route and from the filed obtained its map pany it order of it believed that withdrawal, Department did it It suppose doing something. acquired did not It believe vain and useless thing. Congress a delusive of a benefit had cheated it with expectation it did not intend give. in such To answer this is well to belief?

Was justified at time the condition of look back to the things granting created ‍​‌​​‌‌‌‌​​​‌​​‌​​​‌​‌‌‌​​​‌‌​​‌​‌‌​​‌‌‌​​‌​​‌‌​‌‍the Union act was passed. a railroad from the build Company Mississippi Ocean then River to the Pacifid line along only frequented to the It made travel. a land one company grant, fourth the size of the Northern and to it grant, lend $16,000 agreed to and mile aid in the a first upwards construction, per taking road as for on the the loan. Notwithstand- mortgage security this loan land, this and fact that the ing money, grant road was to be line of along only frequented travel, capital could not induced to be invest Two enterprise. years and in thereafter, an act Congress passed amendatory which 'the land doubled it half as as that grant, making large Pacific, take as for its agreed security loan a second to the mortgage, giving right first on the road in an amount to the place mortgage equal And loan. after"this financial government assistance only large and increased land was the work of grant construction com- menced. On the same act day Congress passed incorporat- the Northern Pacific Railroad ing to it.its Company making It no assistance but grant. lands. promised money, only In order to assurance that it would its give obtain full the act section section this grant placed court now holds is ineffectual That therefor. section absolutely reads: “ And itbe That the enacted, President United further TERM, 1902. Brewer, Shiras, dissenting. Brown shall cause the lands to be

States miles in forty both on sides of the entire line of width road, said after the route shall be and as fast as fixed, be may required by of said and the the construction odd sections of railroad; shall not liable to sale, or granted hereby entry, preemp tion before after are said they surveyed, except by but the act; of the act of provisions provided Sep hundred and tember, forty-one, eighteen granting preemption acts thereof, of the act entitled rights, amendatory An act secure homesteads to actual settlers on the public domain,’ hundred and approved May twenty, eighteen sixty- aye shall and the same be, to all two,- extended hereby, other line of said when those road, surveyed, excepting And said the reserved alternate granted hereby company. shall not be sold at a than less government price dollars and when two cents offered for acre, sale.” fifty per the time of At act entire body passage from the western Minnesota Cascade country boundary and almost unex- untraveled, Range unoccupied, wholly As said Senator when the bill was Hendricks, before plored. is a work can see at glance the Senate: Everybody lands in a It north- of national importance. proposes that, construction of a work like without the where, ern latitude value to the are without government. thielands comparatively condition of that section with the No acquainted person there can be extensive settlements very supposes country those settlements shall encourage until the government Harlan, And work this.” Senator of some like construction on Public Lands : The Com- of the Committee the chairman bill to this on Lands agree report on Public favorably mittee that will to attach the of the vast account consequence comple- to be road. The is tion of the conveyed road committee were the opinion progresses. only could road should be built well af- if the government for the distance of miles ford to one half land, forty give it its If should not road, to secure completion. each side no have In other words, be lands will been conveyed.” built, was to half lands within miles forty give proposition v. NORTHERN PACIFIC RAILWAY. Shikas, Bkewek, dissenting. Bbown and to as much land as road to the would give —not to the lands within miles of the but be half road, forty equal difference to half of those lands. The is obvious. The give construction of a railroad increases value of contiguous lands. doubles even-numbered sec- price tions which it It no little a com- retains. difference makes it whether receives lands the line of the road which pany along which have reason been increased in value constructs, by or an amount lands hundreds of miles thereof, away equal and not so increased value.

The withdrawal was left to the discretion of the com but was to be made after the pany, President, route had been and as fast fixed, may required construction said railroad.” is that he True, language “shall cause the lands to be but this, surveyed;” coupled sale or a against tantamount prohibition entry, direction and has withdraw, been so always regarded by Land and all interested. Thus he Department parties determine whether the time had arrived for a withdrawal. The withdrawal was in made. fact The President exercised his decided that time arrived for a with judgment drawal, and the Land all its officials Department through pro to act ceeded The direction in the withdrawal accordingly. “ to withhold from sale all the odd-numbered entry within these limits.” falling this action of the Surely President and is entitled to the Department highest said consideration. As Chief Justice Marshall Cohens 6 Wheat. 418 : Great Virginia, has weight always attached, very attached, ex rightly contemporaneous See the on this position.” authorities col many proposition lected Fairbank v. United 181 U. States, S. 283, 307. But section, notwithstanding action notwithstanding of the executive a withdrawal directing this land officers sale held now entry, court that it was sub to homestead ject and that the entry, entryman acquired to obtain title an right made after tin1 entry eight years withdrawal. Of Ias course, said, such nullifies the ruling A section. withdrawal from sale or un which leaves TERM, 1902. Brewer, Siiiras, dissenting. Brown

Justices or an irreconcilable is con entry affected right purchase But can there be doubt to reasonable as tradiction.. yvhat of section 6 or that intended Congress meaning exactly to officers, done executive withdrawal of wit, within the the odd sections limit from sale, all forty-mile entry “ ? The words are these: The odd or preеmption significant of land shall not be liable to or sale, sections hereby granted or before or after are entry, preemption they surveyed, except it Now is said of the said major company.” opinion “ section defines what is as “hereby granted” every ity ” “ full section to which United States have alternate title, otherwise sold, or free reserved, not granted appropriated, or or claims at the time the from other line rights preemption is fixed,” lands, of said road those those definitely sale, liable to or are ex preemption, ones only, out It will write the sentence help cept by company. ” the words a substitution for hereby granted and it thereof which is will read substan definition presented, follows: odd sections land within the with tially have full title, limits to which the United States drawal and free or otherwise sold, reserved, granted appropriated, other or at the time line of or claims preemption shall not from the time of the with fixed road is definitely until the definite location liable drawal filing or before after are surveyed, to sale, entry they in another the odd Or, form, the company. put except no one limits, within withdrawal purchases location, shall before or enters filing entered company. not be by anybody except purchased to use lan a failure of due It would be respect Congress of such absurdity legisla adequately expressive guage meant While tion. never But Congress thing. ” words was un be that use hereby granted may what intended intended clear. fortunate, yet Congress sections,and even-num retain the the odd-numbered while clause some were bered, qualifications granting in order to the odd-numbered sections, pro in respect placed or which then Congress tect individual rights existing, might v. NORTHERN PACIFIC RAILWAY. Breweb, Shiras, dissenting, Brown was here not at create, yet thereafter specifically of what should definition by pass grant, precise tempting ” lands of the term as it granted descriptive generally used to them from the land sections, the odd-numbered distinguish sections. It intended the even-numbered obviously retained, no should be either sale, entry acquired, pre rights sections after to the odd-numbered filing any emption, were whether the lands route, of' the this This is made clear the last sen unsurveyed. in the It and the reserved alternate tence says, paragraph. be sold sections shall not at less government price two cents than dollars acre.” that meant fifty per Clearly and not sections, all even-numbered those which simply alternate to to be odd-numbered passing happened that in The truth is section 3 defines company. the lands which it Its at carefully specifically- granted. in clause to was directed the matter of tention definition. 6 in section it was but While define, attempting pro for a before the withdrawal vide filing and was to make location, effective simply endeavoring should intended such withdrawal. accompany in v. Hewitt U. S. Schultz, 139, was held that Again, n directed the withdrawal sectio by Congress 6, coupled (cid:127) with the provision extending preemption rights on to all other lands the line of the road, created an implied within withdrawal prohibition indemnity It limits section 3. is provided unquestioned that, when had been of lands, ever a made Land power to withdraw such Department lands, as seem body might satisfaction of necessary reasonably had been grant, this court. See the list of cases frequently upheld by cited long in the 159. There no opinion page is dissenting express . of like action the Land prohibition Department respect to lands wi'thih the Northern Pacific and the limits, indemnity was based on the above judgment solely implied prohibition referred to. The court rested on the opinion mainly of the Land rulings Department, primarily expressed Vilas opinion Secretary Com TERM, 1902. Bbeweb, SSikas, dissenting. Bkown Dec. v. 7 Land whose Miller, pany opinion large were and in made, respect rulings quotations said, it.was that the generally, Department conceding question of doubt involved was one (p. 157): .

“‘It doctrine of the settled said in court,’ was States Alabama Great United Southern Railroad, U. S. ‘that, case 615, 621, ambiguity, judicial department in favor of a will lean construction to a statute given with the of such if charged statute, execution and, deрartment construction be acted for a number of will years, upon look disfavor sudden upon whereby parties change, who have contracted with the the faith of government ” such construction bemay prejudiced.’ of Mr. find him we

Turning Yilas, the opinion Secretary 110, 111, saying (pp. 119): “ But a of is found in this character legislation peculiarity of a act, the sixth section the authorized the provision ‘ ’ to and be route fixed, required general so fixed, miles in width on both sides entire line for forty odd-numbered sections the and directed the granted or before to sale or act should not be liable preemption entry In the said or after were surveyed, except company. they v. Court, the Buttz Supreme language act of contem R., S. 71 : ‘The only R. 119 U. in the office of the Commis company, filing plates defi Office, of the General map showing sioner and of its limits road, nite line location reserved, at that not, time, as have alternate odd sections and are free or pre otherwise sold, granted, appropriated, but also contem or or other claims right; emption, grant, route of the designation plates preliminary road, from sale, and the exclusion entry, preemption until the on each within miles side odd sections forty adjoining location made.’ all reason- recited, which have been show beyond The facts to the com that the [/any fixing, able privilege question given the odd- first, of which the basis route, a line of general upon on side limits either were numbered sections within forty-mile PACIFIC NORTHERN RAILWAY. ShirAs, Bur-.',ver, dissenting, and Brown withdrawn from sale or before to be exercised Wash- and after fully survey, from the eastern to the mouth of boundary ington Territory, and thence Columbia to the Elver, Walla Walla along the Willamette and meridian, first line west of range principal its thence north the international and boundary, by filing of location the 30th its department’s maps approval the action taken thereon 1870. These fully July, maps met statute that behalf. The every requirement line, with- as the basis of fixed resolution this with- that the should be made its formal drawal, request sufficiently described,* n drawn thereon, line plаinly conse- it, statutory department accepted applied the local land officers Terri- quence by directing Washington to withdraw the that line as tory odd-numbered sections along far north as the town a width Steilacoom, first, twenty miles on either and, in the within the side, later same year, limit of an additional miles; also twenty by increasing the minimum within even-numbered sections price same limits two dollars and cents acre. Thus fifty per action of the and of the department cooperated official give determination to the fact which the statute sec-; became both to withdraw applicable, the odd-numbered tions to double the minimum price.of even-numbered n anti sections, both effects were formally and de- recognized dared. It cannot be doubted had no that, action been other taken before the line of the road .for construction was definitely iri located, action to the line of the regard route of must have remained continuously all operative lands upon side, within the limit of miles on either forty line so es- tablished. So obvious is this, from' indeed, that the mouth of the Walla Walla River, the westwardly along Columbia, withdrawal to this remains day obligatory operative by force of the statute and of that location. ... virtue of By the withdrawal odd-numbered sections within miles forty of all that of the route portion east the lying Columbia re- mained for two at least nearly years from segregated the pub- lic domain, and all purchasers even-numbered sections TERM, 1902. eh, as, dissenting. and Shir

Justices Brew Beown double minimum for the land to the price required pay were . the condition . . Having provided upon they bought. domain withdrawal of the should be which a operative com- route for the benefit of this a preliminary general upon without latitude other, authority any leg- pany, . islative will must be as exclusive of other. . . regarded the act to he that the Thus, meanvng appears provisional Une route in the he should, taken as place, first line was made, and, upon grant during period line route, while no other than such line fixed lands sections miles should he odd-numhered within forty taken as the are declared lands, and, hy granted therefore, they ’ ‘ the statute he italics are lands.” (The hereby granted mine.).

Thus court held section the odd-num- that, because by bered were withdrawn from sale at the sections entry, same time Was declared that

laws to all other there was an lands, should apply implied the Land withdrawal of odd- upon Department’s prohibition numbered sections within the limits. Now it is indemnity held that the section 6 and directed made withdrawal the Interior Secretary absolutely meaningless.and If the withdrawal directed secured nothing company. it should accomplished nothing, section intended nothing, for an the basis of- prohibition have been made implied Land Department hitherto power unquestioned There, is an limits. lands in withdraw indemnity incongruity to use no inind, is, -which, the two decisions my stronger both sad and startling. expression, did in Land fact withdraw from sale Further, Department within sections all the odd-numbered forty-mile or entry withdrawal route —and this included the limits of the general as the other odd-numbered as well tract controversy notice, filed in the local land and this office, thereof —and went the land. before error plaintiff many years of ‘the stated, As.heretofore Department power which it has reason to be- éntry withdraw private has never necessary satisfy lieve may v. PACIFIC RAILWAY. NORTHERN 143 Bbeweu, Shibas, dissenting. and Justices Bkown been exercised which has It is again again denied. a power In one of land v. case, (Wolcott from the grants. inception we sustained a 5 withdrawal 681,) Wall. Des Moines Company, the real terminus made beyond grant department doubt where the some ter on the there was grant that ground in and therefore the minated, justified department making toas such ter conclusion withdrawal cover any possible Pacific, minus. There was the Northern prohibition act no. d exercise the Lan customary power. Department’s held Hewitt Schultz, I it was v. shown, as have Indeed, direction to withdraw lands U. 139, supra, express S. of an limits was-the foundation implied prohibition place thé limits. of lands within on withdrawal indemnity are not to title of a withdrawal vest and effect purpose but to the lands from preserve pri beneficiary gramt, vate that when time arrives the order grantee full measure its As Menotti receive the said may grant. v. S. Dillon, 703, 720, U. 721: said in cases, It an ex- true, many the-object ecutive order withdrawing preemption, private entry within the sale, lands route of a railroad tois preserve until the lands, unencumbered, completion acceptance . . the road. . That order took these lands out of the domain as between the railroad and individ- but uals, remained lands under they the full 'public control to be init its disposed discretion at Congress, time before became they under an ac- property definite location its road.” cepted This in United quoted States v. language approval Railroad &c. Oregon 176 U. S. Company, in Northern Again, Com Musser-Sauntry 168 U. S. we pany, 604, 607, said: “ The withdrawal in aid of Secretary to the State of Wisconsin was valid, operated to withdraw the odd-numbered sections within its limits from disposal officers under government land laws. The act of the was in effect a Secretary reservation.” ' And the same doctrine has been affirmed in cases. many TERM, 1902. Brewer, Siiiras, dissenting. Brown of the Land in Hestetun

Turning rulings Department, Paul 12 v. St. &c. Land Dec. Railway it Company, 27, 28, Noble: was said by Secretary “ of effect the withdrawal is to the dis- legal preclude of the land covered under land laws. posal thereby, In other so words, the withdrawal long remains force land covered is held for the thereby for which simply purpose the withdrawal was made.”

And in the same again, re Rail In &c. volume, Chicago 261 : way 259, Company, pp. “ In case of v. Riley referred Wells, quoted Shiré case, was said that settlement Court Supreme of land possession within the limits of an executive .and withdrawal were ‘without and that the rec right,’ subsequent the land officers ognition of such settlement and possession, and the to the to make under permission proof entry party £ law, were acts in viola patent and.the issuing tion of law v. and void.’ This Wellshas never Riley case modified, overruled but referred to and or has been approved number Court, in a of the decisions of the must Supreme of that be tribunal therefore expressing opinion accеpted lands withdrawn settlements upon absolute invalidity (cid:127)as to order.” executive by. 25, Dec. 31, Bliss Oleson, Secretary In re Hans In ” “ withdrawal : word

thus defined the ‘ land word with- laws the nomenclature In the public an order issued the Pres- used denote drawal’ generally the' Commissioner of General Interior, ident, Secretary lands are Office, officer, whereby or other public proper .Land under laws, from sale and entry withheld be some or they may applied that presently ultimately order in some Some- or use, special way. disposed designated there until is an immediate are times these orders made for their more therefor, necessity but necessity frequently is anticipated.” making Rail v. (Inman in the same volume And Pacific uses this the same Secretary 100): language (pp.

road) are cited the rules the authorities following clearly From y. NORTHERN PACIFIC RAILWAY. Bbeiveb, Shibas, dissenting. Buown and First. control and only dis- Subject power deducible: an Congress, anticipatory withdrawal, remaining position or the time it executive, remains in during whether legislative from therein the lands embraced other withholds force, appro- or acquisition disposition, prevents legal priation settlement title or right equitable violation such withdrawal.” found in declarations almost volume

Similar every may the Land Decisions. Northern Pacific the execution land grant many called for time to

withdrawals were made as time along route and the Land has uni- the line of Department and effect such withdrawals. recognized validity formly Land Dec. Pressey, In Northern a tract within settled miles of Pressey upon forty appeared the at the that the time route; line of of his settle- general that after ; ment were hé made survey unsurveyed application and it held for a homestead that he entry, no acquired the settlement, his inasmuch as land had been with- rights by drawn order Department, Teller Secretary say- ing (p. 553): “ the odd The settlement section Pressey upon clearly order of and in violation he could withdrawal, no acquire under such á settlement.” lights equities Railroad v. Miller, Land Dec. Pacific in which the case implied prohibition withdrawal of in- first lаnds ivas decided in the demnity distinctly Land Depart- Vilas said ment, reference to the Secretary (p. 110) withdrawal of lands within limits of the line of route: place general Thus action and of the co- department official determination to fact operated give upon the statute became both to applicable, withdraw the odd-num- bered sections and to double the minimum of the even- price sections, numbered and both effects were formally recognized that, and declared. It cannot be doubted no action other been taken before the line of the road for construction def- this action in located, initely line of regard the general route of must have remained continuously operative upon

VOL. 0LXXXVI1I—10 TERM, Brewer, Shiras, Brown dissenting.- all lands within the limit of miles on either forty side of the line so established. So obvious is this, indeed, that from the mouth of the Walla Walla River, the Colum- westwardly along bia, withdrawal remains day obligatory opera- tive force of the statute and of that location.

“If to so authority wanting manifest a it is proposition, found in the following language Court ‍​‌​​‌‌‌‌​​​‌​​‌​​​‌​‌‌‌​​​‌‌​​‌​‌‌​​‌‌‌​​‌​​‌‌​‌‍Supreme case referred to.” ^already In McClure v. Northern 9 Land Railroad, Dec. 155, Pacific

in an opinion by Secretary Noble, was held when that, route was map general filed, withdrawal thereunder be came at once effective, reserved general disposal odd-numbered sections embraced therein.” In Northern Railroad v. 14 Land Collins, Dec. 484, Pacific it was decided- the same again that “landswith- Secretary drawn for the benefit of said are not to settle- subject ment.” In Central Railroad v. 19 Land Beck, Dec. 100, which

was also a settlement land within the upon unsurveyed place limits of the route of the road, in which a with drawal had been ordered in accordance with the provisions the act Smith, grant, Secretary title making sustaining of the railroad said (p. 103): “ I am that after the clearly withdrawal opinion made no could be ad- upon route, acquired verse to the settlement land, settlement so made, even existed at the date though of definite would not servе to ex- location, filing the land settled from the of the cept upon operation grant said company.”

In the last volume of the Land Decisions very (vol. to the Southern Pacific Railroad p. 247,) respect Company, act whose contained a similar in reference granting provision to withdrawal on the of a of it was route, filing map general Hitchcock said by Secretary (p. 249): “ As between individual claimants and no claim the company be could settlement or made after the predicated upon of the of and as route, such claims filing general against . PACIFIC NORTHERN RAILWAY. Shiras, dissenting. Bjrewek, Brown 3, 1871, date effect April operative grant of route was filed.” which the map. upon until time constru- So that from present beginning like there has and others containing provision ing in the line of Land been an unbroken decisions Department on the a withdrawal made of of the effect that filing claims to the odd- route any private prevents attaching and this whether the lands were land; numbered in the Indeed, when sixth or unsurveyed. surveyed lands be that the shall not liable to declared section expressly or after are or before sale, they surveyed,” entry, preemption it had made it would seem every provision though to reserve from en- private was capable expressing language all odd-numbered the railroad the benefit try within limits sections, unsurveyed, place line of route. ^general

I have from Hewitt v. 180 U. S. Schultz, already quoted in case of reference duty following, ambiguity, construction to a statute department charged given execution such statute. doctrine That was there applied that the although appeared practice department during railroad had been one way only building changed after its and the latter construction completion, upheld by this court as the It was said ruling department. (p. 156): “ It admitted at that the construction hearing act of 1864 announced Yilas had by Secretary to in adhered the administration of the public by the We asked to are now overthrow that Department. con- struction that was for the Land by holding competent De- the definite partment, location of the immediately line of upon the railroad, to withdraw from the settlement laws all the odd- numbered sections within the limits as defined indemnity the act done it If this were is to Congress. apprehended if endless would confusion ensue in the great adminis- tration of the lands and that the of a vast number have who homes under the people acquired laws, reliance Vilas ruling Secretary his successors would be office, destroyed.” TERM,

i48 Bbeweb, Shibas, dissenting. Justices Bííown of the we have a ease which Now ruling department from the commencement has been present unchanged in Land Dec. Vilas time—a Secretary supra, ruling it called a and is so manifest wholly disregarded. proposition,” The of the Land recent and Department temporary ruling said, as was the former case sustained protect order, continuous the settler. Here the department practice to the railroad com issued disregarded patent is overthrown. pany of section

Still reason believing again, company, by to its to be made which should that a withdrawal was operate withdrawal was and a route, benefit, filed map general now held of land. It is made of the odd-numbered sec- the odd-numbered did not withdraw such withdrawal but remained still sale, entry open tions from they If that be the true construc- the land laws. under purchase no had filed if tion, that, whereas, map follows line of road was where its no one would know route, general of definite and then location, to be after it filed the until map sections not bur- to all odd-numbered the title would attach claims. But by dened existing filing ühe of definite it did eleven before route, filing years and so all route, it notified location, proposed everybody enter of that take knowledge settlers could advantage this knowl- thereto. Having odd-numbered sections contiguous settlers would of course located, of where the line was to be edge in order to take advantage come as near that line possible, road, the construction value the increased coming would of the notice deplete and so given taking advantage intended for the benefit lands which Congress the company. this court. decided by

But has definitely question S. 55. U. Buttz v. Company, for the railroad an action That was brought by within miles tract of land forty possession road. location of also of the line of definite route as plaintiff’s defendant, he at in October, the land entered and in- of a all the time preemptor tüe qualifications possessing PACIFIC NORTHERN RAILWAY. Bbeweu, dissenting. Bkown and Shikas the tract obtain At that time title by preemption. tending in of the Sioux Indians. An with the was, others, occupation for the Indians of all their the surrender rights agreement on On the 26, 1873, was ratified 1873. 19, May May The its definite location. filed in the Land ofmap Department intent the tract with defendant was therefore in of occupation had it for of the Indians seven after the preempt days rights So ceased and definite location. before the of filing map announced, if the of the court now opinion prevailed com defendant was hold entitled to that tract against the 11th his On of he pany. applica August, presented tion for it because was refused refused, entry, within the route as shown limit, forty-mile general by map filed on This 21, 1872. February question presents precise here involved. The of the court sustained unanimous opinion the action the Land in defendant’s Department ap refusing to enter and com confirmed the plication title the railroad course of the Field, Mr. Justice pany. opinion, by was said r (p. 72)

“When the route of is in the road thus fixed general good faith, information thereof given Department thereof with the Gen- the Commissioner of by filing eral Land or Office, with- Interior, the law Secretary sale draws from the odd sections to the extent preemption miles on each side. The the law in this forty object par- ticular is it is to for plain; preserve which, aid the construction of the . . . road, granted. Nor is there inconsistent view of the sixth anything section route, the clause the third section odd sectionsas have making operative only upon not been reserved, sold, otherwise granted, appropriated, аnd to which and other and claims have not when a attached, of the definite has location been filed. The third section does embrace sales and preemptions cases where the sixth section declares that the land shall not be to sale or two sections must be subject preemption. so construed as to effect to if that be give both, practicable.”

This decision, rendered seventeen has never hitherto ago, years TERM, Brewer, dissenting. Shiras Brown been overruled. It St. Paul & Rail reaffirmed Pacific road Company Company, Pacific U. S. fora Mr. 1, 17, 18, which, unanimous court, speaking Justice Field said: In Besides, withdrawal made Secretary terior lands within the of Au 13th limit, forty-mile the benefit of the Northern preserved gust, Bailrpad from the operation grants subsequent to other declared to cover the companies specifically prem ises. The Northern Pacific act directed that the President should cause the lands to be in width on miles forty both sides of the entire line of the route roadyafter should' be and as fixed, fast as the con might required by struction of the odd road, provided should not be to granted liable sale, entry before or after were they surveyed, except by company. n were therefore that They from excepted legislation grants, by of the independently withdrawal of the In Secretary terior. His in action their withdrawal formally announcing was what the law itself declared. only giving publicity of the withdrawal was land unencumbered object preserve . . . until the the road. After completion acceptance no withdrawal, interest in the lands can be ac granted against quired, except by Special (cid:127) ;its declaration, nor, indeed, the absence of an legislative after the nouncement, route is fixed.'5 some later cases are referred opinion majority are said to to which decision Buttz v. Northern qualify Railroad But even the Company. attention slightest Pacific to .in decided those what was cases shows no manner or limit that dp decision so far as it they affects qualify Before those cases it is towell present question. noticing .con sider what was the and effect of section 6. purpose It was not It did title to granting section.. purport give anything Its whole effect was to withdraw company. scope from sale, entry odd-numbered sections .preemption when the its order that filed of definite location map secure those odd-numbered sections. The was might NELSON r. NORTHERN PACIFIC WAY. RATE 151 Breweu, BrowN Shiras dissenting. mad,e 3 and only section attached to bj lands when particular of map definite location was but filed, laid proposition down in the case—and the Bnttz I am proposition contending for here—is that error could plaintiff acquire nothing his an odd-numbered entry upon section after the filing route and the map that the tract withdrawal; was therefore free from a claim kind when location and so there filed, nothing prevent the railroad title. receiving, Now the cases referred to are St. Paul & v. North Pacific ern Pacific, 139 1; U. S. States v. Northern United Pacific Railroad 152 U. S. Company, 284; Pacific 166 v. S. Sanders, 620; U. Menotti v. Dillon, Company States v. 703; U. S. United &c. Land Oregon Company, Wilcoxv. Eastern U. S. S. 28; Oregon 176 U. Company, Same, U. S. 58. 51, and After from the Messinger quoting court sums in some the the cases above opinions up saying railroad cited determine definitely company acquired land until after interest in section of no vested any particular line.” of its a definite location was an shown accepted land law This is C’s A, B, proposition among But that needed thereof. proposi no authorities support as to tion scope throws on the no question light the cases themselves when section withdrawal given conflicts proposition of them are to not one referred shown what I have already down. laid I heretofore have and need Pacific, v. Northern & in St. Paul decided Railroad v. Northern States In United not repeat. Pacific Com Railroad Pacific that the Northern it appeared Company directly line Portland a from to locate liad attempted pany the a gen had filed map in 1865 Sound, and north Puget authority within the was not line a thereof. Such route eral Northern the incorporating act of the Congress granted by made 1870, Congress On May Railroad Company. Pacific Railroad Company Central the Oregon grant the limits of within forty-mile lands of the some included and twenty- 31, 1870, On route. May above-mentioned general Railroad Central Oregon after grant days seven TERM, Brewer, Brown and Sutras dissenting. an act the North- which authorized Company, Congress passed ern Pacific construct a Portland line from Company with the Sound, and for in Puget privileges provided grants act of that the and it held original incorporation, of the Central Pail road antedated Oregon Company were to those of the Northern in time, Pacific. First superior in as to lands within first limits the rule right, settled place of railroad land What this decision grants. possible bearing can have case before us it In upon is hard to conceive. Railroad Sanders, v. 166 U. S. 620, Company Pacific in the lands were claimed controversy as mineral lands, of them applications as such were in the pending The court had held in Department. Barden v. North ern S. 288, U. that mineral Company, did lands not under pass to the railroad whether were known or not known they to be mineral lands at the time of the of the of definite location filing map Of immaterial. course, it followed that whether they were at the time of known known not filing map also immaterial. The were of such general .route event to the railroad com- any could pass character as even-numbered sections. were They tlfan more pany any did route; map they filing not withdrawn of definite location. The four re the map by filing pass one proposition all cases proceeded maining route does not Con preclude mere filing thereto and filing subsequently gress making to the time when location—that is,-prior ofmap other in the specific grant title vested company any— until the words, other grantee reserved lands. proposed to vest title in there re it, is necessary all that shall have done to make other mains disposition Congress power doctrine land law. no new But this was lands. 9 Wall. 187; Whitney, It was laid down Frisbie 15 Wall. has been Case, Valley wеll-known Yosemite at course, cases since. Of could followed many of definite location time before the filing inchoate, was still reserve the title of the while r. PACIFIC RAILWAY. NORTHERN Brewer, dissenting. and Siiiras Brown Justices or make a lands for or other military purposes specific But as said of them to individuals corporations. v. Northern Paul & Company St. Pacific Pacific “ after 1, withdrawal, 139 U. S. such 18, Railroad Company, can be in the lands no interest acquired, against granted declaration,” except special legislative no declaration. case there has legislative and in this “ is case of error that the plaintiff it is said placed But pf the act c. 89.” I 4, 1880, May on ground impregnable is a act for the relief of that this pass proposition familiar doctrine that on lands settlers public act does not interfere with pro law after a special passed is room for the there that act, operation visions of provided for the of this act on room is operation and there both, ample with the without interfering pro lands special public generally But the act itself visions made in the Northern grant. has no force whatever present question. applied is that one who is a settler provision of the United States “with the intention of the same claiming under the homestead shall be allowed the time laws, same t ofile his homestead his application perfect original entry the United States office as is now allowed to un settlers der the laws to their claims on and his preemption put record, relate back shall to the date of right the same as if settlement, he settled under the laws.” If we turn to the pre law we Revised find, emption Statutes, section that a shall person thirty within intending preempt after the days date of sucli settlement, file with the dis register proper trict a written statement.” That is. the preémptioner after settlement thirty days within which to make his entry, while when we turn to the law, homestead Revised Statutes, section we find that a shall, party seeking upon application of the land office in he register is about to make such . make affidavit . . that his еntry, is'made for the of actual settlement and cultiva purpose tion.” In other words, his initiated by. right application enter, does not relate back to settlement, statute him a be- simply gives right thirty daj’s’ occupancy TERM, Brewer, Brown and Shiras dissenting.

fore his to How enter. such a making application statute, of one equalizing to make a rights seeking entry with those of one to make can seeking have any preemption, to the before'us pertinency question my passes comprehension. several Again, taken are with refer- pages opinion up ences to from in the Land as quotations opinions Department term homestead settlers.” meaning occupied Here I am unable to see again of these refer- pertinency ences. If there had been no withdrawal arose question as the effect of to in error’s as the land plaintiff occupancj^ of the against obtained defi- rights nite location these authorities worth but might considering, throw no they the effect light upon which withdrawal, is the before us. question

The fact that this tract was not at the time the surveyed in error entered plaintiff it nor until after the upon completion immaterial, of the road is theRy terms of section 6 the pro hibition sale, against extended to lands “ before or after are thejr Reference is survejmd.” made to sev we eral in which held that cases of a settler were of the lost the failure to make a government survej1- lint those decisions were to the effect to his occupation. loses nothing that the settler neglect government. he If the held that gains something. Here it is survey he he commenced his before occupation, completed an he could section, odd-numbered could enter surely not then the land section,- enter face not, prohibition If of. lands instead been surveyed. going upon after it had the settler to into chose go unsurveyed that had been his chances his he took placing improvements upon territory, them section. If he what placed an odd or even-numbered he no section, an odd-numbered acquired to be right proved If he what thorn on to company. put the against a,n he would be section, even-numbered to be compelled proved double In the latter event does price. to the government pay would that be an answer for a moment suppose one ,any for double had failed price government demand the. he chose land and make occupy make a before .'to survey PACIFIC RAILWAY. NORTHERN Brewer, dissenting. and Shiras Brown thereon ? The construction placed major improvements the land the railroad takes ity only that which but it, deprives government granted it reserved for the a double lands obtain, it intended to price for sale. to all the this decision clouds the title I may say

Finally, time the the railroad At the company. granted the road the time as at filed, definite location well Land De- on the records there was not completed, word or mark which indicated anybody partment single or that the land or it, error was on the claiming plaintiff But be- was other than title of the perfect. railroad company ' land it is held that cause in error was on the the'patent plaintiff to it no to the railroad company conveyed government show the title, and that this parol testimony may occupant by Yet this fact of the record title. his and overthrow occupancy court Col held in Northern unanimously that burn, unaccompanied U. S. mere by occupation, of claim in did not exclude tract a- the land office, filing from the that there was n the land And operation grapt. o or lack of matter shown attention- to this oversight particular the fact that filed brief of the United by States promptly referred to land decisions thirty-six pages, quoting principal in the of the and asked the court to recon opinion majority, sider its decision, which was denied without dissent. application, Indeed, as from the authorities cited appears in that opinion, conclusion was accord with the effect rulings, that there must be of record in the Land something Department (cid:127) the contention of an support adverse That unanimous right. court is 'opiniоn one side the assertion put that land there in had been controversy while in this had surveyed not been. No distinction was made between discussion and no lands, that affected unsurveyed suggestion in the seen, question and, as we have slightest degree, prohibition sale, ex section-6 against tended to lands as well How can one unsurveyed as.surveyed. tract claimed say railroad respect that it at the time was not of definite filing map. TERM, 1902.

Statement of the Cáse. location in the of some one occupation intending preempt homestead it ? If such ‍​‌​​‌‌‌‌​​​‌​​‌​​​‌​‌‌‌​​​‌‌​​‌​‌‌​​‌‌‌​​‌​​‌‌​‌‍is sufficient to occupation avoid the pat- ent of the United has the States, sure title to lands ?

I think the to be judgment affirmed. ought

SMYTHE v. UNITED STATES. ERROR TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH

CIRCUIT. Argued No. 12,1902. November January 26, 1903. Decided An action superintendent official bond of a of the Mint at New Orleans, among conditioned other things that “faithfully he would diligently perform, execute and discharge all singular the duties of ” according said office to the laws of the United States receive and safely keep, legally withdrawn, until moneys all or bullion which shall expenses for the use or of the Mint.” The claim was that the defend- ant had paid received and $25,000 over to the United States in treas- ury notes which had come to his hands. The defence was that the treas- ury notes had totally destroyed lire, any negligence without part superintendent, except $1182 of such notes had been States, recovered in a charred condition and turned over to the United being they in such condition could be identified as to amount date of issue. Held: (1) superintendent obligations That were not determinable bond, the law of bailment but terms of his could lie escape responsibility treasury notes that came to his hands and lost, which were unless such loss overruling was attributable necessity public enemy; or the that their loss reason fire con- stituted no defence. (2) $11S2 on No deduction could be allowed account charred notes, application previous proper been made to because no accoundug officers for the allowance credit. (3) superintendent per for interest liable on his bond at six cent Treasury at from the his accounts were stated date Department. bond of was an action official Andrew This W. of the "Mint the United States at Smythe Superintendent

Case Details

Case Name: Nelson v. Northern Pacific Railway Co.

Court Name: Supreme Court of the United States

Date Published: Jan 26, 1903

Citation: 188 U.S. 108

Docket Number: 44

Court Abbreviation: SCOTUS