94 F. 932 | 9th Cir. | 1899
Lead Opinion
after the foregoing statements of facts, delivered the opinion of the court.
The assignments of error upon which the case is now here are ten in number, but they may all be reduced to two general propositions: (1) That the court erred in holding that the land described in the complaint was subject to homestead and pre-emption entry after the general route of the northern Pacific Railroad was fixed on February 21, 1872; (2) that the court erred in holding that the land in controversy was subject to any claim or right on the part of the defendant on and after July 6, 1882, when the line of definite location of the road was fixed, and a plat thereof filed in the office of the commissioner of the general land office.
The act of July 2, 1864, entitled "An act granting lands to aid in the construction oi a railroad and telegraph line from Lake Superior to Puget Sound, on the Pacific Coast, by the northern route” (13 Stat. 365), provided in section 3:
“That there he, and hereby is, granted to the ‘Northern Pacific Railroad Company,’ its successors and assigns, * * * every alternate section of public land, not mineral, designated by odd numbers, to the amount of twenty alternate sections per mile, on each side of said railroad line as said company may adopt, through the territories of the United States, and ten alternate sections of 'land per mile on each side of said railroad whenever it passes through any state, and whenever on the line thereof, the United States have full tille, not reserved, sold, granted or otherwise appropriated, and free from pre-emption, or other claims or rights, at the time the line of said road is definitely fixed and a plat thereof filed in the office of the commissioner of the general land office: and whenever, prior to said time, any of said sections or parts of sections shall have been granted, sold, reserved, occupied by homestead settlers or pre-empted or otherwise disposed of, other lands shall be selected1 by said company in lieu thereof, under the direction of the secretary of the interior, in alternate sections, and designated by odd numbers, not more than ten miles beyond the limits of said alternate sections.”
The sixth section directed the lands to be surveyed for 40 miles in width on both sides of the entire line of the road after the general route was fixed, and as fast as was required by the construction of the railroad, and provided that:
“The odd sections of land hereby granted shall not be liable to sale, or entry, or pre-emption, before or after they are surveyed, except by said company, as provided in this act; but the provisions of the act of September, eighteen hundred and forty-one, granting pre-emption rights, and the acts amendatory thereof and of the act entitled ‘An act to secure homesteads to actual settlers on the public domain,’ approved May twenty, eighteen hundred and sixty-two, shall be, and the same are hereby, extended to all other lands on the line of said road, when surveyed, excepting those hereby granted to said company. And the reserved alternate sections shall not be sold by the government at a price less than two dollars and fifty cents per acre, when offered for sale.”
The plaintiff in error contends that when the general route of the railroad was fixed on February 21, 1872, the land in dispute,
It follows, that the first, and, indeed, the only, question to be determined is this: Was the land in controversy free from pre-emption or other claim or right on the 6th day of July, 3882? If it was, it was part.of (lie grant to the railroad company. If it was not, the company never had title to the land, and cannot prevail in this action. In an action of ejectment, the plaintiff must recover, if at all, upon the strength of his own title, and not upon the weakness of the tiüe claimed by his adversary. Fussell v. Gregg, 113 U. S. 550, 565, 5 Sup. Ct. 639.
It appears that the defendant entered upon this land in May, 1880, as a purchaser of the possession and improvements from the previous owner, and thereafter continuously farmed and improved
“The provisions of the act of September fourth, eighteen hundred and forty-one, granting pre-emption rights, and the acts amendatory thereof, and the act entitled ‘An act to secure homesteads to actual settlers on the public domain,’ approved May twenty, eighteen hundred and sixty-two, shall be, and the same are hereby extended to all other lands on the line of said roád when surveyed, excepting those hereby granted to said company.”
This provision of the act extending the pre-emption and homestead laws to all other lands on the line of the road not granted to the company is significant, in view of the fact that these laws had already been extended to all lands belonging to the United States to which the Indian title had been, or might thereafter be, extinguished, Act June 2, 1862 (12 Stat. 413), and Act May 20, 1862 (12 Stat. 392). The only inference to be drawn from this provision is that these laws were to be continued in full force and effect, notwithstanding the grant, and to be applicable to all lands not specifically therein described as having been granted to the company. In the case of Leavenworth, L. & G. R. Co. v. U. S., 92 U. S. 733, 748, the supreme court, in speaking of a grant of land made in 1863 to the state of Kansas, declared the policy of congress at that date to have been to preserve pre-emption and homestead rights until the line of the aided road should be definitely fixed. The court said:
“Formerly, lands which would probably be affected by a grant were, as soon as it was made, if not in advance of it, withdrawn from market. But experience proved that this practice retarded the settlement of the country, and at the date of this act the rule was not to withdraw them until the road should be actually located. In this way, the ordinary working pf the land system was not disturbed. Private entries, pre-emption and homestead settlements,, and reservations for special uses, continued within the supposed limits of the grant, the same as if it had not been made. But they ceased when the routes of the roads were definitely fixed, and if it then appeared that a part; of the lands within those limits had been either sold at private entry, taken up by pre-emp-tors, or reserved by the United States, an equivalent was provided. The companies were allowed to select, under the direction of the secretary of the interior, in lieu of the lands disposed of in either of these ways, an equal number of odd sections nearest to those granted, and within twenty miles of the line pf the road.' Having thus given lands in place and by way of indemnity, congress expressly declared what the act had already implied, — that lands otherwise appropriated when it was passed were not subject to it.”
“At the time oí the passage of the act of 18(54 only in the vicinity of the proposed eastern and western termini were there any settlements. The great hulk of the terriiory through which the road was to pass was almost entirely unoccupied. Congress, fixing the time for commencing and for finishing the work within two and twelve years, respectively (section 8), contemplated promptness in the construction of the roatl, ini ending thereby to open this large unoccupied terriiory to settlement. In view of the road’s traversing a com-pararme wilderness, it made a grant of enormous extent. Within the unoccupied territory thus to be traversed there were few settlers, and few, if any, land giants. It knew, therefore, (hat if the company proceeded promptly, as required, it would find within its place limits nearly the full amount of its grant”
What, thou, was the effect of the settlement by the defendant upon the land in question, under the pre-emption laws? In Whitney v. Taylor, 158 U. S. 85, 94, 15 Sup. Ct. 800, the supreme court held that the act of September 4. 1841, “gave the right of pre-emption to one making a settlement in person, and who inhabits and improves the land, and erects a dwelling thereon.” The various provisions of the pre-emption act are now embraced in the Revised ¡Statutes, and that part of section 10 which declares who are competent pre-emptors on the public lands, and what constitutes a pre-emption claim, is found in section 2259, as follows:
“livery person, being the bead of a family, or widow, or single person, over tlie age of twenty-one years, and a citizen of the United States, or having filed a declaration of intention to become such, as required by the naturalization laws, who has made, or hereafter malees, a settlement in person on the public lands subject to pre-emption, and who inhabits and improves the same, and who has eroded or shall erect a. dwelling thereon, is authorized to enter with the register of the land-o(fleo for the district in which such land lies, by legal subdivisions, any number of acres not exceeding one hundred and sixty, or a quarter-section of land, to include the residence of such claimant, upon paying to the United States the minimum price of such land.”
Then follow sections in the Revised Statutes limiting the right of pre-emption, and providing the proof and the method of procedure in the land -office by which that right may be established. And, where a settlement is made on unsurveyed land, the time after the survey within which the declaratory statement must be filed is prescribed in section 2266, as follows:
“Tn regard io se moments which are aulhorized upon unsurveyed lands, the pre-emptions claimant shall be in all cases required to file his declaratory statement within three months from the date of the receipt at the district laid-oiiiee of the approved plat of the township embracing such pre-emption settlement.”
These provisions of the statute distinctly recognize that the qualified settler who enters upon and improves a tract of public land with the intention of obtaining a title thereto under the preemption laws is a claimant, that he has a claim to the land, and that this claim is a right of pre-emption. This being so, it would
“No one can. read this entire description without being impressed with the fact that congress meant that only such lands should pass to the Northern Pacific as were public lands, in the fullest sense of the term, and free from all reservations and appropriations, and all rights or claims in behalf of any individual- or corporation, at the time of the definite location of its road.”
But we are not without direct authority upon this question. In Railroad Co. v. Sanders, 166 U. S. 629, 17 Sup. Ct. 671, this same grant was before the court. After the genera! route of the road was fixed, February 21, 1872, and prior to the establishment of its line of definite location, July 6, 1882, certain persons, qualified to enter mineral lands under the laws of the United States, entered upon the possession of lands within the exterior lines of both the general and definite routes of the railroad, and made claim to such lands. These claims were pending when the definite line of the road was fixed. The defendants, who subsequently entered into the possession of the land, did not assert title in themselves, but resisted the claim of the railroad company upon the ground that the land was excluded from its grant by reason of the fact that there were claims to the land at the time of the location of the road. The claims consisted, as stated, in the application of certain parties to purchase the land as mineral land. The land was not in fact mineral land, and it does not appear what became of the applications. They were presented merely as claims, without any other fact or circumstance tending to establish their connection with any right of title, and did not in any way relate to the defendants’ right of possession of the land. The court, in commenting upon this feature of the case, said:
“But it is said that no account is to be taken of those applications, for the reason that the present defendants, who had nothing to do with them, and had no interest in them,' confess in their answer that the lands in question ‘did not contain gold or other precious metals in paying quantities, or in such quantity as to make the same, or any part thereof, commercially valuable therefor’; that the lands are therefore to be regarded as agricultural lands that passed to the company under the act of 1804, and were preserved to it by the filing of the map of the general route in 1872, and by their withdrawal in that year by the general land office ‘from sale or location, pre-emption or homestead entry.’ This view overlooks the fact that the express declaration of congress was that no ppblic lands should pass to the company, to which, at the time of the definite location of the road, the United States did not have title free from preemption ‘or other claims or rights.’ If the applications made in 1S80 and 1881 to purchase different parts of the section in question, and which were pending and undisposed of in 1882, when the company filed its map of definite location, constituted ‘claims,’ within the meaning of the act of 1864, then it was not competent for the defendants, by any admission they might make, for what-*941 t;ver purpose made, as to the quality of these lands, — whether mineral or not,— to eliminate from the ease the essential fact that these ‘claims’ existed of record when the line of the road was deiinitely located. Indeed, if it now appeared that the land oilioe finally adjudged, after the definite location of the road, that the lands embraced by those applications were not mineral, they could not be held to have passed to the railroad company under The act of 1864, for the reason that they were not, at the time of such definite location, free from preemption or ‘other claims or rights.’ ”
In another part of the opinion the court says:
“As the lands in question were not free from those claims at the time the plaintiff definitely located its line of road, it is of no consequence what disposition was or has been made of the claims subsequent to that date.”
The court accordingly held that the lands did not pass to the railroad company by the terms of its grant, for the reason that claims, to the land were pending at the time of the definite location of the road.
The only distinction to he drawn between this case a,nd the one at bar is the fact that, in the case referred to, the applications to purchase the land as mineral land were on file in the land office when the line of definite location of the road was fixed, while in the present case, although the defendant had settled upon the land, he had not at that time filed his declaratory statement; but, as we have seen, this was not necessary under the statute, for the reason that the land was unsurveyed public land. As soon as it had been surveyed, and the plat of the township embracing the settlement was received at the district land office, the defendant filed his declaratory statement, as required by section 2266 of the Revised Statutes. What more could he do? He had not only settled upon the land before the line of the railroad was definitely fixed, but lie continued to occupy, cultivate, and improve the land until his claim was established by law, and a patent issued to him thereon, on the 1.6th day of November, 1891. The action of the land department in issuing- a patent to the defendant may he of itself immaterial in this case, hut, in the proceedings in the land office resulting in the patent being issued, the fact of settlement upon the land by the defendant as a qualified settler under the law was found, and found by competent authority. It was also found that whatever right or claim the defendant had was based upon this settlement. In other words, the pivotal fact was established that a claim to this land, whatever that claim might be in law, existed on July 6, 1882. Catholic Bishop of Nesqually v. Gibbon, 158 U. S. 155, 166, 15 Sup. Ct. 779.
In Railroad Co. v. Colburn, 164 U. S. 383, 17 Sup. Ct. 98, the court declared the law to be that no pre-emption or homestead claim attaches to a tract of land until an entry in the local land office, and the plaintiff in error relies upon this case as excluding defendant’s claim. But the facts in that case did not require the court to determine the effect of a settlement upon public land by a qualified settler, followed by a pre-emption entry within the time prescribed by law; and the court expressly stated that it deemed it unwise to make any observations concerning matters not considered by the supreme court of the state from which the case had been taken upon
It follows from what has been said that we are of the opinion the land in controversy was subject to homestead and pre-emption entry after the general route of the Northern Pacific Railroad was fixed, on February 21, 1872, ánd that it was not free from the claim of the defendant when the line of the road1 was definitely fixed, on July 6, 1882. The latter determination necessarily disposes of the case. The -judgment of the court below will be affirmed.
Dissenting Opinion
(dissenting). I am unable to concur in the view that the supreme court has by its decisions in Railroad Co.
“But it also contémplalos a preliminary designation of tlie general route of the road, and llie exclusion from sale, entry, or pre-emption of the adjoining odd sections within i'oriy miles on each side, until the definite location is made. * * * "When the 'general route of ilie road is thus fixed in good faith, and information thereof given to the lamí department hy filing the map thereof with tlie commissioner of the general land office, or tlie secretary of the interior, the law withdiaws from sale-or pre-emption tlie odd sections to the extent of forty miles on each side. The object of the law in this particular is plain: It is to preserve tlie land for the company to which, in aid of the construction of the road, it is granted.”
In that case a settlor had upon October 5, 1871, entered upon land, with the intention of securing a pre-emption claim. The land was then within the limits of an Indian reservation, the Indian title to which was not extinguished until June 19, 1873. On August 11, 1873, and within three months after the government survey of the land, the pre-emptioner presented his declaratory statement. On February 21, 1872, the map of the general route of the road had been filed, and on March 30, 1872, the withdrawal was made. Speaking of notice of the withdrawal, the court said:
“This notifiealion did not add to the force of tlie act itself, hut it gave notice to all parties seeking to make a pre-emption settlement that lands within certain defined limits might he appropriated for the road. At that time the lands were subject to the Indian title. The defendant could not, therefore, as already siated, have then initiated any pre-empiion right hy his settlement, and the law cut him off from any subsequent pre-emption. The withdrawal of the odd sections mentioned from sale or pre-emption, by tlie sixth section of the act, after the general route; of the road wms fixed, in the manner stated, was never annulled. It follows that the defendant could never afterwards acquire any rights against the company by his settlement.”
In St. Paul & P. R. Co. v. Northern Pac. R. Co., 139 U. S. 1, 11 Sup. Ct. 389, concerning the withdrawal of lands by the secretary of the interior, the court said:
“His action in formally announcing their withdrawal was only giving publicity to what the law itself declared. The object of the withdrawal was to preserve the land unincumbered until the completion and acceptance of the road. * * * After such withdrawal, no interest in the lands granted can bo acquired, against the rights of the company, except by special legislative declaration, nor, indeed, in the absence of its announcement, after the general route is fixed.”
In U. S. v. Southern Pac. R. Co., 146 U. S. 570, 599, 13 Sup. Ct. 152, the court expressly approved the language above quoted from the opinion in Buttz v. Railroad Co. In Hamblin v. Land Co., 147 U. S. 531, 13 Sup. Ct. 353, it was held that a withdrawal of lands as
The case of Railroad Co. v. Sanders, it is said, declares a doctrine at variance with the former decisions of the court. What was actually decided by the court in that case was that the withdrawal of lands consequent upon fixing the general route of the road did not operate to withdraw mineral land, and that if at the time of fixing the definite location of the road there was pending an application to purchase any of the granted lands, upon the ground that it was mineral land, such application constituted a "claim” against the land which excluded it-from the grant, notwithstanding the fact that it was subsequently proven that the land was not in fact mineral land. That decision rests upon grounds which have no application in the present case. All mineral lands were withheld from the grant to the railroad company. The withdrawal could not affect lands not within the grant. Such lands, after withdrawal, as before, were open to claim and purchase as mineral lands. The difference between an application to purchase mineral lands, and a pre-emption entry after a withdrawal, is that in the one case the law authorized and invited the application to purchase, while in the other it strictly prohibited all steps towards obtaining title, and declared that such unauthorized settlement could not become the basis of a claim. It is' true that in the course of the opinion in the Sanders Case the court remarked that section 3 of the grant to the railroad company “manifestly contemplated that rights of pre-emption or other claims and rights might accrue or become attached to the lands granted after the general route of the road was fixed, and before the line of definite location was established,” but the case presented no question of pre-emption right. It is not conceivable that the court intended by the use of those words in the opinion to deliberately overrule the plain doctrine of its decisions in the cases above referred to. I think that the language so quoted must be considered only in its connection with the question which was then before the court for decision. In Northern Pac. R. Co. v. Musser-Sauntry L. L. & Mfg. Co., the court, in concluding its opinion, declared that the only point intended to be decided was “that when.' a withdrawal of lands within indemnity limits is made in aid of an earlier land grant, and made prior to the filing of the map of definite location by a company having a later grant, — the latter having such words of exception and limitation as are found in the grant to the plaintiff, — it operates to except the withdrawn lands from the scope of such later grant.” The court ruled in that case, as it had ruled before, that the grant of lands to. .the Northern Pacific Railroad Company under the third section of the
“The withdrawal by the secretary in aid of the grant to the state of Wisconsin was valid, and operated to withdraw the odd-numbered sections within its limits from disposal by the land officers of the government under the general land laws. The act of the secretary was, in effect, a reservation.”
Conceding that the decision in that case reaffirms the doctrine that congress might by legislation retract from the grant any of the odd-numbered sections within the limits thereof, and might, even after the general route was fixed and the lands were withdrawn, have offered the same to settlers under the pre-emption and homestead laws, the fact remains that no such action has been had, and no such legislation has been enacted. In section 6 of the granting act to the Northern Pacific Railroad Company, after granting the odd-numbered sections, it is expressly declared that the rtre-emption and homestead laws shall be extended to the other lands. No subsequent legislation lias indicated the purpose of congress to extend those laws to lands within the grant, other than those so indicated. In Menotti v. Dillon, 107 U. S. 703, 17 Sup. Ct. 945, the court made a similar ruling in reference to the grant to the Central Pacific Railroad Company. The court said:
“The right it acquired, in virtue of the act making the grant and of the accepted map of its general route, was to earn such of the lands, within the exterior lines of that route, as were not sold, reserved, or disposed of, or to which no pre-emption or homestead claim had attached, at the time of the definite location of its road.”
And, in speaking- of the order of withdrawal, said:
“That order took these lands out of the public domain, as between the railroad company and individuals; but they remained public lands, under the full control of congress, to be disposed of by it in its discretion at any time before they became the property of the company under an accepted definite location of its road.”
The purpose of the withdrawal, as has been often declared by the supreme court, was to protect the grant. What protection would he afforded by a withdrawal which left the withdrawn lands in the same position as other lands of the public domain? The construction which is adopted by the majority of the court in this case renders the withdrawal an idle and meaningless act. If it is the true construction, the grant to the railroad company might have been entirely defeated by entries in the land office prior to the date of definite location of the road. It is true that in the case of Northern Pac. R. Co. v. Musser-Sauntry L. L. & Mfg. Co.