Pacific Railroad v. McCombs

39 Mo. 329 | Mo. | 1866

Holmes, Judge,

delivered the opinion of the court.

The plaintiff claims title under the second section of the act of Congress of the 10th of June, 1852 — 10 U. S. Stat. p. 9. This act granted to the State of Missouri, for the purpose of aiding in making certain railroads, every alternate section of land designated by even numbers, for six sections in width on each side of said road, which section, or any part thereof, should not appear to have been sold or subjected to the right of pre-emption, and provided that no reservation of any or all of said lands by any act of Congress, or in any other manner, by competent authority, for any purpose whatever, has been made; but in case such sale, right of pre-emption, or reservation, did appear, then the agent of the State appointed by the Governor was to select, subject to the- approval of the Secretary of the Interior, other lands elsewhere in lieu thereof, as further therein provided. It seqms to have been left to the agent of the State to ascertain for himself what sections or parts of sections had been sold, pre-empted, or reserved.

The State of Missouri, by an act of the General Assembly of the 25th of December, 1852, (Laws of 1858, p. 10,) granted to the Pacific Railroad company so much of these lands as were applicable to the Pacific railroad, and required the company to proceed as soon as practicable to locate the railroad, and to locate and select the lands granted by said act of Congress, by an agent, to be designated by them, and appointed by the Governor. A copy of the location was to be forwarded to the local land officers and to the General Land Office. They were to cause a map and profile of the road, and a map of the land located, to 'be filed in the office of the Secretary of State, within one year after the location of the road ; and maps of the parts thereof, located in different counties, were to be recorded in the office of the recorder of deeds in each county respectively.

The plaintiff produced evidence tending to show that this map and profile of the location of the railroad had been made and filed; but no evidence was offered to show that any map of the lands located, including the land in controversy here, had ever been filed with the Secretary of State; nor that any map of the parts thereof, located in the county of St. Louis, had ever been recorded in the office of the recorder of deeds therein.^* The only evidence offered to prove that the particular sections or parts of sections which are sued for in this case were any part of the granted premises, was a certified plat from the office of the Surveyor General, showing sections eight and eighteen in T. 45 N., R. 7 E., in the county of St. Louis. The plat and profile of the location of the railroad did not show the numbers of the sections, and the plaintiff contends that the act of Congress acted directly as an absolute grant of all the even numbered sections within sis miles on either side of the located road, and that no other evidence than the official sectional further surveys was necessary to ascertain the particular lands granted.

This point has been expressly decided otherwise — Baker v. Gee, 1 Wall. U. S. 333; Hamilton & St. Jos. R. R. Co. v. Moore, 37 Mo. 338. The act of the General Assembly has reference, more especially, perhaps, to the protection of the rights of such persons as should, under the provisions of that act, become pre-emptors and purchasers of the lands thus granted to the State. The defendants are claiming here as purchasers from the United States, and not as pre-emptors under the statute. But the grant to the State is transferred to the railroad company, accompanied with all the restrictions of this legislation on the part of the State, defining the powers and duties of the agent. The statute amounts to a legislative interpretation of the meaning and extent of the act of Congress ; and it supposes, as that act itself would seem to do, that it was left to the agent of the State to ascertain for himself and on his own part, what lands were excepted out of the grant. The agent was designated by the corporation and commissioned by the Governor, and thus became the agent both of the State and the company, for this purpose, under the act of Congress. Both the act of Congress and the statute suppose that the agent will select and locate the particular sections and parts of sections that fall within the granted premises; and the statute requires that a descriptive list of the lands selected shall be filed with the Secretary of State, and that a map of the lands located in different counties shall be recorded in the office of the recorder of deeds therein; and the act of Congress requires that a descriptive list of the lands selected in lieu of those sold, pre-empted or reserved, shall receive the approval of the Secretary of the Interior.

And it was held in Baker v. Gee that the location of the land was not complete, as regarded the rights of the pre-emptor under the statute, until the company had caused that map to be recorded in the office for recording deeds in the county where the lands were situated. The point was distinctly made in that case, as it is here, that the granted sections, or parts of sections, were sufficiently ascertained and designated by the even numbers of the public sectional surveys alone, and it was expressly decided that they were not.

In the case of the Hann. & St. Jo. R.R. Co. v. Moore, it was said that the act of Congress and the statute amounted to a legislative grant of the specific lands whenever they should be particularly ascertained and designated. The location of the railroad was to be made by the corporation, and would ascertain the six-mile limit within which the even numbered sections were to be found.

The public sectional surveys would" ascertain whait sections were designated by even numbers within that limit. The admission of the answer identified the lahdLsiied for as a part of one of those sections, and the descriptive list approved by the Secretary of the Interior, and recorded in the office -of the recorder of deeds in the county where the lands were situated, was held to be prima facie evidence, at least, that the lands therein designated came within the grant. The court was not then aware of the decision in Baker v. Gee, which, so far as there may be any conflict, may be taken as the higher authority, but on the question in hand there is no conflict between the two decisions. We are of the opinion, therefore, that the evidence did not show any grant to the plaintiff of the specific lands in controversy.

In accordance with the decision in Gibson v. Chouteau,^* (Oct. T. 1866,) we are of opinion that the evidence produced by the defendants tended to show a valid location made in 1833, covering this land, under the act of Congress of the 17th of February, 1815, for the relief of the sufferers by earthquakes in New Madrid, and that the land had been appropriated by Congress to answer that location, and pass, therefore, within the reservation of the act of Congress of the 10th of June, 1852.

It appears that the agent of the corporation and the State proceeded to perform the duty assigned to him under these laws, and finding to his satisfaction, and by an official communication from the Commissioner of the General Land Office that these particular sections, and parts of sections, among other lands in St. Louis county, had already been disposed of, within the meaning of the act of Congress, and were not part of the granted premises, he selected and made a list of these lands elsewhere in lieu thereof, which had the approval of the Secretary of the Interior. But it was after-wards discovered, it seems, that some of these other lands, so selected elsewhere, were not subject to location and sale under the act of Congress, and. that, upon the necessary corrections being made, there still remain a certain portion of the whole quantity granted, to be'selected and located in some other place, within the limits prescribed by_ the act. It does not appear, however, that the lands in controversy had ever been selected or located as a part of that residue.

This action must be considered binding and conclusive upon all the parties as to that matter. It amounted to a solemn admission that these lands were not included within the grant, and were not included within the reservation, and it was a formal disclaimer on the part of the agent of all right to select and locate them as a part of the granted premises. The officers of the Land Department may be considered as representing the interests of those who were entitled to this reservation or exception. The defendants proceeded to consummate their equitable right into an actual patent for these lands. The admission was acted upon by all parties concerned. It is not important that the admission was not made to the defendants in person. Being an open and public act, it is to be considered as addressed to every one who had occasion to act upon it. As against this party, neither the agent nor the plaintiff can now be heard to deny the truth of this admission. Whether the fact were true or false, they are concluded by their own act and acceptance to say the truth ; and it may very well be deemed to have amounted to an estoppel in pais — 1 Greenl. Ev. §§ 207-8; 4 Com. Dig., tit. Estoppel, a. 1; Dalzell v. Odell, 3 Hill. 215; State v. Dent, 18 Mo. 313.

We conclude, therefore, that the defendants’ instructions were properly given; -and whatever error there may have been in giving or refusing the plaintiff’s instructions, it was either not material, or not such as the plaintiff is entitled to complain of.

The judgment will be affirmed; the other judges concur.

* There is here an error of fact. The plat of the location of the road through the county of St. Louis was duly recorded, and a certified copy from the record was in evidence, and this was not questioned in the court helow. See statement.

* Re-hearing granted and decided at March Term, 1867.