214 P. 335 | Or. | 1924
Lead Opinion
The lot is a part of the lands granted to the Oregon & California Railroad Company by the Act of Congress of July 25, 1866, and the amendments thereto. These acts contain provisions requiring the sale of the lands to actual settlers in tracts of not more than 160 acres, or one-quarter section, to each purchaser at prices not to exceed $2.50 per acre, and reserving to Congress the right to alter, amend or repeal the acts, having due regard for the rights of the grantee companies.
On April 30, 1908, the Congress adopted a joint resolution, authorizing and directing the Attorney General of the United States to institute and prosecute any and all suits in equity, actions at law or other proceedings, to enforce any rights or remedies of- the United States arising or growing out of either or any of the granting acts and their amendments, namely: Act of July 25, 1866, 14 Stats, at L. 239, Chap. 242; Act of June 25, 1868, 15 Stats, at L. 80, Chap. 80; Act of April 10, 1869, 16 Stats, at L. 47, Chap. 27 ; Act of May 4,1870,16 Stats, at L. 94, Chap. 69.
Asserting that the Oregon & California Railroad Company had violated the terms of the grant, the United States brought suit to declare a forfeiture of the granted lands including the land involved in the present case. This suit reached its finality in the United States Supreme Court in the case of Oregon & California R. R. Co. et al. v. United States, 238 U. S. 393 (59 L. Ed. 1360, 35 Sup. Ct. Rep. 908, see, also, Rose’s U. S. Notes), and 243 U. S. 549 (61 L. Ed. 890, 37 Sup. Ct. Rep. 443). On June 21, 1915,
Pursuant to these decisions the Congress passed the Act of June 9, 1916, known as the Chamberlain-Ferris Act, 39 Stats, at L. 218, Chap. 137, revesting in the United States title to all the granted lands which had not been sold prior to July 1, 1913, but preserving the rights of the railroad company which were declared to be $2.50 per acre, and declaring the terms upon which such revested lands might be entered under the public land laws by qualified persons.
Pursuant to the provisions of the Chamberlain-Ferris Act portions of the revested lands, including the tract involved herein, were classified as agricultural lands, and listed and advertised as open to entry by the public with a preferred right to honorably discharged soldiers, sailors and marines. Frank L. Stancliff, the defendant, exercising his preferred right as an honorably discharged soldier, made a homestead entry under the United States land laws for lot 9 in the Roseburg land office, and proceeded to occupy and improve the land. Plaintiff thereafter
The reply admits the homestead entry of the land by defendant, and his possession; denies the other allegations of the answer and affirmatively alleges: That the land lies within the primary limits of the railroad grant, being in an odd-numbered section within the twenty-mile limits covered by the grant; that the railroad company definitely located, that part of its road opposite the land January 7, 1871; that the road was actually completed opposite the land and accepted by the United States on August 29, 1883, and the railroad company was thereupon entitled to patent; that patent was issued to the company May 28, 1902, but that the patent did not convey title; that the lot in question is part of the southeast quarter of section 33; that in the year 1878, Robert Phipps, grantor and predecessor in interest of the plaintiff, was in the actual, exclusive, notorious, peaceable and adverse possession of the lot, claiming title thereto under a chain of conveyances from his predecessors, extending from the year 1863, down to and including a conveyance from one Harkness, dated October 23, 1878, under which Phipps went into possession; that Robert Phipps continued in like possession of the lot, having the same under fence and farming it, from that time to on or about March 9, 1912, when he placed plaintiff in possession under
The defendant demurred to the reply. The court sustained the demurrer, and, plaintiff refusing to plead further, judgment was entered for defendant.
The lot in question was described in the suit above mentioned in the federal court, and it is apparent that the record title to the lot is in the government of the United States, and that the Department of the Interior of the United States, through the United States land office, granted defendant’s homestead entry. The United States, therefore, has a claim to the land in question. There has been no adjudication of the claim of plaintiff to the land as between the United States and the plaintiff.
“That the foregoing propositions, hereinbefore offered, are on the condition that the people of Oregon shall provide by an ordinance, irrevocable without the consent of the United States, that said state shall never interfere with the primary disposal*306 of the soil within the same by the United States, or with any regulations Congress may find necessary for securing the title in said soil to bona fide purchasers thereof * * .” 1 Or. L., p. 27.
The legislative assembly of the State of Oregon, by an act approved June 3, 1859, accepted the proposition of the United States, and solemnly ordained that the state ‘ ‘ shall never interfere with the primary disposal of the soil within the same by the United States, ’ ’ and that it would conform to the requirement of the Congress of the United States above quoted: 1 Or. L., p. 30.
In the opinion in Pin v. Morris, 1 Or. 230, a case involving a portion of a donation of land claim, Mr. Chief Justice Williams said:
“Congress has organized a land department of the government, whose business it is made to determine those questions which arise out of the disposal of the public lands, and the courts of the country cannot interfere to regulate or control that business, without introducing uncertainty and confusion into the whole system. ’ ’
In Moore v. Fields, 1 Or. 317, the syllabus reads:
“The courts of this State will entertain no proceedings, arising out of facts still pending in, and undetermined by, the land department of the United States.”
This policy has been strictly adhered to ever since: Frink v. Thomas, 20 Or. 265 (25 Pac. 717, 12 L. R. A. 239); Robertson v. State Land Board, 42 Or. 183 (70 Pac. 614); Weatherford v. McKay, 59 Or. 558 (117 Pac. 969); State ex rel. v. Hyde, 88 Or. 1, 40 (169 Pac. 757, 171 Pac. 582, Ann. Cas. 1918E, 688). See, also, Catholic Bishop v. Gibbon, 158 U. S. 155 (39 L. Ed. 931, 15 Sup. Ct. Rep. 779, see, also, Rose’s U. S. Notes).
The government of the United States hy its Department of the Interior and Land Department, with the sanction of the federal Supreme Court, says in effect, that title to the lot in question which was granted to the Oregon & California Railroad Company in aid of its railroad, hy virtue of the Act of July 25, 1866, and the amendments thereto, pursuant to the plan suggested by the Supreme Court of the United States and carried out by the Chamberlain-Ferris Act, revested in the United States and was subject to entry under the homestead laws by the defendant.
The plaintiff says in substance, that the title to the land was not so revested in the United States and was not subject to defendant’s homestead entry. It does not appear that this question has ever been presented to the United States Land Department.
It would not he in conformity with the enabling act of Congress admitting Oregon into the Union or the ordinance of the legislative assembly of the state accepting the propositions of Congress in that regard, nor in accordance with the long established policy of the courts, to interfere in the disposal of the lot of land in question. We are unable to see how the court could do so without the presence of the United States government as an interested party herein.
If plaintiff’s contention could be acceded to, it would result in utter confusion. If the defendant should be dispossessed by the court, the Land Department might adhere to its present program, resulting in a perplexing question as to the issuance of a patent for the land. The judgment of the Circuit Court sustaining the demurrer to the reply is affirmed.
For the reason suggested the action is dismissed without prejudice to plaintiff’s rights. Affirmed.
Rehearing
Reversed and remanded on rehearing January 14, 1924.
On Rehearing.
(222 Pac. 328.)
This is an action in ejectment. The title asserted by plaintiff is based on adverse possession. The land in controversy is a forty-acre tract, located within the limits of the grant of public lands to the Oregon & California Bailroad Company, made by act of Congress, approved July 25, 1866 (14 U. S. Stats, at L. 239), as amended by the Act of April 10, 1869 (16 U. S. Stats, at L. 47). Legal title to the lands in question passed to the railroad company in 1871 upon the definite location of its line of road: Deseret Salt Co. v. Tarpey, 142 U. S. 241 (35 L. Ed. 999, 12 Sup. Ct. Rep. 158, see, also, Rose’s U. S. Notes).
Plaintiff contends that the railroad company fully-earned the grant and became vested with the absolute title to the lands upon the completion of its railroad line opposite the land in question in 1883. The possession upon which plaintiff relies became adverse to the railroad company when the legal title passed to it in 1871, and continued without interruption to and beyond the time of the completion of the railroad line, and if the above contention of plaintiff is correct, the adverse possession of plaintiff’s predecessor ripened into perfect title as against the whole world upon the expiration of the period of ten years from the date of its initiation, and plaintiff having acquired that title by deed, could not be deprived thereof by act of Congress, or otherwise.
Thirty-five years thereafter, and on June 9, 1916, Congress passed an act (39 U. S. Stats, at L. 218), known as the Chamberlain-Ferris Act, purporting torevest the United States with “title to so much
Defendant was allowed to enter the land as a homestead by the United States land office at Roseburg, Oregon, and thereafter, on the nineteenth day of September, 1920, defendant entered into the possession of the land, and has since retained the same for the purpose of perfecting his homestead entry. Defendant insists that, as against those acquiring title from the Railroad Company, the United States, by the terms of the grant, retained paramount title to the granted lands, and upon assertion of that title by the Chamberlain-Ferris Act, plaintiff’s title was destroyed.
An examination of some of the decisions of the Supreme Court of the United States, in cases involving the land grant above mentioned and similar grants in aid of the construction of railroad and telegraph lines, will aid in the determination of the above contentions of the parties.
Between 1862 and 1875 Congress made numerous grants of public lands in aid of the construction of what is generally known as the Pacific railroads and telegraph lines. Among such grants were' the following: The Union Pacific grant, including Central Pacific and other branch lines, 12 U. S. Stats, at L. 489, as amended by 13 U. S. Stats, at L. 356; New Orleans Pacific grant, including Texas Pacific and other branch lines, 16 U. S. Stats, at L, 579; Northern Pacific grant, 13 U. S. Stats, at L. 365; Oregon Central Railroad Company grant, 16 U. S. Stats, at L. 94.
In each of such grants it was the intention of the United States, expressed in the granting act, that the grantee should sell and dispose of to individuals, in relatively small tracts, all the lands conveyed to it by the grant, excepting only its right of way and such lands as were necessary for the company to reserve for depots, stations, sidetracks, wood-yards, standing grounds and other needful uses in operating the road, which latter lands it was intended should be permanently devoted to railroad purposes for the benefit of the public.
Toltec Ranch Co. v. Cook, supra, involved a grant of lands to the Central Pacific Railroad Company, made by act of Congress of July 1, 1862 (12 U. S. Stats, at L. 489), as amended by Act of July 2, 1864 (13 U. S. Stats, at L. 356). The action was in ejectment; plaintiff based his title on adverse possession, initiated and continued for the period prescribed by the statute of limitations of Utah, before patent was issued by the United States to the railroad company. The defendant claimed title by deed from the railroad company. The court sustained the claim of title by adverse possession, and speaking through Mr. Justice McKenna, said:
“The question presented is whether adverse possession under claim of right for the period prescribed by the statute of limitations of Utah before patent was issued by the United States can prevail against*313 the latter. It has been decided by this court that adverse possession of land gives title to it and all of the remedies which attach to the title. This was expressly ruled in Sharon v. Tucker, 144 U. S. 533 (36 L. Ed. 532, 12 Sup. Ct. Rep. 720). * *
“Adverse possession, therefore, may be said to transfer the title as effectually as a conveyance from the owner; it may be considered as tantamount to a conveyance. And the Central Pacific Railroad Company had the title. Deseret Salt Co. v. Tarpey, 142 U. S. 241 (35 L. Ed. 999, 12 Sup. Ct. Rep. 158). It would seem, therefore, an irresistible conclusion that it could have been transferred by any of the means which the law provided.”
Iowa R. Land Co. v. Blumer, supra, involved a tract of land included in the grant made by the act of Congress of May 15, 1856 (11 U. S. Stats, at L. 9), to the state of Iowa, in aid of the construction of certain railways in that state, which lands were later granted by the state of Iowa to the Iowa Palls and Sioux City Railway Company, which company in turn had conveyed the lands to the Iowa Railroad Land Company. Plaintiff brought the suit for the purpose of quieting the title to forty acres, and claimed title in himself by adverse possession for more than ten years. Two defenses were urged. First, that under the terms of the grant the legal title did not pass from the government until the completion of the road; and second, that the predecessor in interest of the plaintiff (Carraher), during his possession of the premises, attempted to effect a timber culture entry upon the lands in the general land office of the United States, and thereby recognized title in the United States, which act, it was claimed, precluded plaintiff, his successor, from using that possession in support of his claim of adverse possession.
“But when the grant is in praesenti, and nothing remains to be done for the administration of the grant in the Land Department, and the conditions of the grant have been complied with and the grant fully earned, as in this case, notwithstanding the want of final certification and the issue of the patent, the railroad company had such title as would enable it to maintain ejectment against one wrongfully on the lands, and title by prescription would run against it in favor of one in adverse possession under color of title.”
Answering the second defense, the court said:
“After 1891, as we have seen, the railway company was in position to have ousted him (Carraher) from the premises and asserted its superior title and right. It did not attempt to do this, and, so far as the record discloses, made no objection to Carraher planting and cultivating the trees required by the act of Congress to perfect his title under the second application. His possession was certainly open, notorious, continuous, and adverse, and, unless he was acting* in bad faith, was such as would ripen into full title as against the railway company. # * And for more than ten years that company was in such position under its grant that it might have maintained an action in ejectment and asserted its title to the premises as against Carraher. ’ ’
Missouri Valley Land Co. v. Wiese, supra, was a suit to quiet title, and involved grants of land made to the Union Pacific and Sioux City & Pacific Railroad Company by act of Congress of July 1, 1862 (12 U. S. Stats, at L. 489), and the amendatory Act of July 2, 1864 (13 U. S. Stats, at L. 356). The grants overlapped. The suit concerned a forty-acre tract within an overlap. Both the Union Pacific Company and the Sioux Company claimed the land,
The District Court gave a decree, adjudging that plaintiff had a perfect title to the land. That decree was affirmed by the Supreme Court of Nebraska. An appeal was taken from the latter court to the Supreme Court of the United States, where the decree of the state court was affirmed in an opinion delivered by Mr. Chief Justice White. The learned Chief Justice, after reciting the facts relating to the above-mentioned controversy respecting the title to the lands and stating the contentions of defendants made in the state courts, said:
“The plaintiff, by his reply, in substance alleged that the grants were in praesenti, and that the effect of the completion of the railroads and compliance with all the terms and conditions of the act prior to January 1, 1870, operated to pass the title of the government on or prior to that date, and that the General Land Office had not thereafter jurisdiction in respect to such lands, and that the adverse possession of the plaintiff was not affected by the proceedings had in the Land Department concerning such land.
“The cause was submitted to the court on the pleadings and evidence, and a decree was entered adjudging that Wiese had a perfect title to the tract. The supreme court of Nebraska affirmed the decree (77 Neb. 40, 108 N. W. 175), holding, in substance, that the grant to the two companies of the tract in controversy was in praesenti, that the title of the companies attached upon the definite location of their line?, of road, and that the adverse possession of*317 Wiese and Ms grantor, commencing in 1882, had completely barred any claims of the companies to the property. * *
“That the decision of the court below was right, as applied to the land within the place limits of the main line grant made to the Union Pacific Railroad Company by the act of 1862 and the amendatory act of 1864, is not an open question. This is so, since it has been expressly held that the main line grant was one in praesenti, that the grantee company had a right to bring ejectment for such land after the definite location of its road, and that consequently, from the time of such definite location, a possession might be acquired by a third party to land embraced within the grant, which would be adverse, even as to the railroad company, and bar its title if possession was continued for the statutory length of time.”
The Sioux City & Pacific Railroad Company was a branch road, and it was claimed that the branch line grant could not be held to have been a grant in praesenti. The Chief Justice made it clear that the legal title passed to the branch line on the definite location of the road, just as it did in the case of the main line, and then continued:
“That the entry and holding of the land by Japp, the grantor of Wiese, under the purchase by Japp in 1882, and the continued possession by Wiese after he acquired the land from Japp, should be deemed to have been adverse to the title in possession of the Sioux City Company, if the possession by Japp was not that of a cotenant, and such possession was unaffected by the proceedings had in the Land Office subsequent to 1882, is not questioned. We are clearly of opinion that the possession of Japp and his grantee was adverse in the strictest sense of the term, and the acts of Wiese in seeldng to acquire title from the United States under the Act of 1887, with the view of removing a cloud upon his title, was not an*318 act of recognition or acknowledgment of a superior title, either in the United States or in the Sioux City Company, operating to interrupt the continuity of his adverse possession, and, in any event, cannot be held to have destroyed a title which had already become perfect by the expiration of the statutory period in Nebraska for acquiring the legal title to land by adverse possession.”
The rule established by the foregoing cases was applied in the case of Northern Pac. R. Co. v. Ely, 197 U. S. 1 (49 L. Ed. 639, 25 Sup. Ct. Rep. 1302), where it was held that the word “conveyances” as used in an act of Congress included transfer of title by adverse possession. That suit was commenced by the railroad company to quiet title, remove clouds and to recover possession of numerous parcels of real estate alleged to be portions of its right of way in the 'State of Washington. The railroad company acquired the right of way by congressional grant, and as granted, the same was four hundred feet in width. Some of the defendants had been in possession of the land, claiming the same adversely to the railroad company for more than ten years prior to April 28, 1904. The railroad company prior to that date had deeded to numerous other parties, parcels of land within the four hundred feet right of way, but as it could not lawfully dispose of any part of its right of way to individuals for private purposes (Northern Pac. R. Co. v. Townsend, 190 U. S. 267 (47 L. Ed. 1044, 23 Sup. Ct. Rep. 671), Congress, on the last-mentioned date, approved an act (33 U. S. Stats, at L. 538), by the terms of which the width of the right of way was reduced to two hundred feet, and conveyances of land forming part of the right of way theretofore made by the railroad com
Mr. Chief Justice Fuller, delivering tfie opinion of tfie court, said:
“So far as title to portions of tfie rigfit of way could be lawfully acquired from tfie railway company defendants below, appellees in tfie supreme court, had acquired title to their parcels by adverse possession, and occupied tfie same position as if they had received conveyances, which the act of April 28, 1904, operated to confirm.”
Tfie Chief Justice introduced tfie foregoing statement with, a quotation from tfie opinion in tfie case of Toltec Ranch Co. v. Cook, 191 U. S. 532, 538 (48 L. Ed. 291, 292, 24 Sup. Ct. Rep. 166, 167):
“Adverse possession, therefore, may be said to transfer tfie title as effectually as a conveyance from tfie owner; it may be considered as tantamount to a conveyance.”
And presently, when we come to consider the provisions of the grant, the violation of which by the railroad company culminated in the passage of the Chamberlain-Ferris Act, it will be found that such violations occurred long after the adverse possession of plaintiffs predecessor had ripened into a perfect title; that plaintiff’s predecessor, by his occupation and possession of the l$nd, brought himself within the class of -persons to whom, by the terms of the grant, the railroad company was directed and required to sell the land, and the limitations as to quantity (not more than one hundred and sixty acres), and price (not exceeding $2.50 per acre), were not exceeded; and finally, that title was perfected in plaintiff’s predecessor, without any violation of the terms of the grant, either by plaintiff’s predecessor or by the railroad company, but in strict conformity thereto.
It appears from plaintiff’s reply that the tract of land involved in the instant case lies within the place limits of the grant to the Oregon & California Railroad Company; that the line of the railroad was definitely. located prior to January 7, 1871, on which date the map of survey and definite location of the road was accepted and approved 'by the Secretary of the Interior of the United States; that the railroad and telegraph line was actually completed and the grant fully earned by the railroad company prior to August 29, 1883, and on that date the report of the railroad company, that the road was completed,
The Chamberlain-Ferris Act was enacted by Congress in response to the decision of the Supreme Court of the United States in the case of Oregon & Cal. R. Co. v. United States, 238 U. S. 393 (59 L. Ed. 1360, 35 Sup. Ct. Rep. 908). That suit was authorized by a joint resolution of Congress, and was instituted by the United States against the Oregon & California Eailroad Company in the United States District Court for the District of Oregon in 1909. The purpose of the suit was to obtain a decree declaring a forfeiture of the lands embraced in the grant which had not been sold by the railroad company, on the ground that the railroad company had violated that provision of the grant sometimes referred to as the “settlers clause,” which reads as follows:
*323 “And provided further, that the lands granted by the act aforesaid shall be sold to actual settlers only, in quantities not greater than one-quarter section to one purchaser, and for a price not exceeding two dollars and fifty cents per acre.” 16 U. S. Stats, at L. 47.
The United States claimed in that suit that the above-quoted provision of the grant constituted a condition subsequent, upon breach of which the United States was entitled to declare and obtain a forfeiture of the lands, title to which still remained in the railroad company. The breaches alleged all occurred after plaintiff’s predecessor acquired title, and consisted principally of sales (all made after 1893) to persons who were not actual settlers on the land, at prices in excess of $2.50 per acre, and in quantities of more than 160 acres to a single person; and the refusal to sell at all after January 1, 1903, notwithstanding that after that date more than 4,000 persons had applied to purchase as many separate tracts of land for the purpose of settling and establishing homes thereon. It affirmatively appeared from the bill that prior to May 12, 1887, nearly 164,000 acres of the land were sold by the Oregon & California Railroad Company, nearly all of which was sold to actual settlers in small quantities within the maximum provided by the act, both as to price and quantity: 28 U. S. 93, 408 (59 L. Ed. 1360, 35 Sup. Ct. Rep. 90, see, also Rose’s U. S. Notes).
The railroad company insisted that the proviso was not a condition subsequent, but was a covenant, and unenforceable. Numerous persons who had settled upon the lands, and others who had merely applied to purchase land, were made parties to the suit; the settlers were designated “cross-complain
The District Court rejected the contentions of the railroad company, the cross-complainants and the interveners, and decided in favor of the government, and entered a decree of forfeiture, holding that the proviso, was a condition subsequent, and that the railroad company had violated that condition in the respects alleged by the United States.
The suit was appealed to the United States Supreme Court, and there the effect of the proviso was presented in all of its aspects. In that connection the court said:
“It is'certain, therefore, that no averment has been omitted from the pleadings; no fact from the testimony that has any bearing on the ease; the industry of counsel has neglected no statute or citation, and their ability no comment or reason that can elucidate or persuade.”
It is well to note at this point, that the government in that case did not assert or claim, as indeed it could not, that the grant reserved any title or estate in favor of the United States, nor was the presence of such a reservation in the grant claimed by any of the other litigants in the suit. It should also be noted that the purpose of the suit did not extend to any lands, the title to which had passed from the railroad company to third persons. However, the land in controversy in the instant case was described in the bill as unsold lands,- for the reason that the
The Supreme Court held that the proviso or settlers clause did not create a trust; that it did not constitute a condition subsequent, but was a covenant, and enforceable, saying:
“Our conclusions then * * are that the provisos are not conditions subsequent; that they are covenants, and enforceable * * .
“There was a complete and absolute grant to the railroad company with power to sell, limited only as prescribed, and we agree with the Government that the company ‘might choose the actual settler; might sell for any price not exceeding $2.50 an acre; might sell in quantities of 40, 60, or 100 acres,, or any amount not exceeding 160 acres/ And we add, it might choose the time for selling * * .”
It will be observed that the court did not decide that the title or estate of the railroad company was limited, as claimed by defendant, but declared that only its power of sale was limited.
In considering the remedy to be applied for the violation of the covenant by the railroad company, the usual remedies of damages and injunction ordinarily awarded in favor of the covenantee in actions or suits between private parties brought for the enforcement of covenants analogous to the one under consideration, were deemed by the court inadequate, in view of the unusual circumstances and conditions shown by the record. That conclusion was influenced in part by the following considerations: Prior to the grant, the lands were subjected to sale and entry under the public land laws, which laws provided the machinery for their judicious disposition by duly constituted officers of the Land Depart
In view of 'those considerations, and by reason of the inadequacy of the usual remedies and the inability of the court, by use of its ordinary processes, to provide or give a complete remedy and one suited to the peculiar facts and circumstances of the case, the court indicated that Congress, in the exercise of its sovereign power to legislate, as distinguished from its proprietary powers as a party to the grant, might appropriately provide a special remedy, whereby complete relief might be given and administered in conformity to the court’s decision.
Omitting reference to the matters above mentioned, and other matters pertinent to the discussion, the court, pronouncing its judgment and decree, said:
“Rejecting, then, the contention of the Government and the contention of the cross-complainants*327 and interveners and regarding the settlers clauses as enforceable covenants, what shall be the judgment? A reversal of the decree of the District Court, of course, and clearly an injunction against further violations of the covenants. There certainly should be no repetition of them. What they were the record exhibits. * *
“In view of such disregard of the covenants, and gain of illegal emoluments, and in view of the Government’s interest in the exact observance of them, it might seem that restriction upon the future conduct of the railroad company and its various agencies is imperfect relief; but the Government has not asked for more. * *
“However, an injunction simply against future violations of the covenants, or, to put it another way, simply mandatory of their requirements, will not afford the measure of relief to which the facts of the case entitle the Government. * *
“This, then, being the situation resulting from conditions now existing, incident, it may be, to the prolonged disregard of the covenants by the railroad company, the lands invite now more to speculation than to settlement, and we think, therefore, that the railroad company should not only be enjoined from sales in violation of the covenants, but enjoined from any disposition of them whatever or of the timber thereon and from cutting or authorizing the cutting or removal of any of the timber thereon, until Congress shall have a reasonable opportunity to provide by legislation for their disposition in accordance with such policy as it may deem fitting under the circumstances, and at the same time secure to the defendants all the value the granting acts conferred upon the railroads(Italics ours.)
The court was careful to advise Congress that any remedy provided by it in response to the suggestion of the court must necessarily secure to the railroad company all the value the granting act conferred upon it. The opinion explicitly declared that the proviso
The Chamberlain-Ferris Act recited that it was enacted in execution of the judgment and decree of the court, and following the direction of the court, provided: (1) That title to the unsold lands, except the right of way and similar lands “be and the same is hereby revested in the United States”; (2) For classification of the lands and disposition thereof under the public land laws; (3) For an accounting with the railroad company, and payment to it of the value conferred upon it by the granting act, to wit: $2.50 an acre for each acre of land granted, less the amount received by the railroad company from sales of land or timber or from any other sources relating to said land.
The controversy between the United States and the railroad company again came before the Supreme Court upon an appeal from the decree of the District Court entered upon the mandate from the Supreme Court, and in the opinion in that case the court
‘ ‘ Congress, in the execution of the policy it deemed fitting under the circumstances, as expressed in our opinion, enacted what is called the Chamberlain-Ferris Act of June 9,1916, Chap. 137, 39 Stat. 218. The validity of the act is challenged and both sides invite a determination of the challenge. The validity of the law may be said not to be involved. # * It, however, may be considered important in the execution of the decree, for we have seen that the granting acts were laws as well as grants, had the strength and operation of laws, subject to amendment if the right of amendment existed or accrued. There was a reservation in them of the right of alteration or repeal and if it could not be exerted to take back what it had granted and had vested, it could be exerted to accomplish the remedy which the court adjudged to the Government for the violation by the railroad company of the provisions of the grants. [Italics ours.] * *
“The interest that the granting acts conferred upon the railroad company was $2.50 an acre. That secured to it ‘all the value the granting acts conferred,’ upon it was secured. It is true it had the right of sale, selection of time and settler. If these were rights, they were also aids to the duty of transmitting the lands to settlers; and, the duty having been violated, they became unsuitable to the conditions resulting and obstructions to the relief which had accrued to the Government. In other words, by the conduct of the railroad company the policy of the granting acts had become impracticable of performance and the new conditions — the lands inviting more to speculation than to settlement — demanded other*330 provision than that prescribed by the granting acts. This was the declaration and direction of onr judgment, and the Chamberlain-Ferris Act is the execution of it.” (Italics ours.)
“That Congress may at any time, having due regard for the rights of said California and Oregon Railroad Companies, add to, alter, amend, or repeal this act.”
In Union Pac. R. Co. v. United States (Sinking Fund Gases), 99 U. S. 700 (25 L. Ed. 496), the court considering acts of Congress granting lands to the Union Pacific Railroad, and in which acts the power to alter, amend or repeal was reserved, said:
“The United States cannot, any more than a state, interfere with private rights, except for legitimate*331 governmental purposes. They are not included within the constitutional prohibition which prevents states from passing laws impairing the obligation of contracts, but, equally with the states, they are prohibited from depriving persons or corporations of property without due process of law. They cannot legislate back to themselves, without making compensation, the lands they have given this corporation to aid in the construction of its railroad. * * That this power has a limit, no one can doubt. All agree that it cannot be used to take away property already acquired under the operation of the charter, or to deprive the corporation of the fruits actually reduced to possession of contracts lawfully made; * * We think it safe to say, that whatever rules Congress might have prescribed in the original charter for the government of the corporation in the administration of its affairs, it retained the power to establish by amendment. In so doing it cannot undo what has already been done, and it cannot unmake contracts that have already been made, but it may provide for what shall be done in the future, and may direct what preparation shall be made for the due performance of contracts already entered into. It might originally have prohibited the borrowing of money on mortgage, or it might have said that no bonded debt should be created without ample provision by sinking fund to meet it at maturity. Not having done so at first, it cannot now by direct legislation vacate mortgages already made under the powers originally granted, nor release debts already contracted. A prohibition now against contracting debts will not avoid debts already incurred. An amendment making it unlawful to issue bonds payable at a distant day, without at the same time establishing a fund for their ultimate redemption, will not invalidate a bond already out. All such legislation will be confined in its operation to the future.”
The decisions last cited make it plain that the power of amendment reserved in the granting act
It is apparent from the foregoing review that it was not the purpose, nor within the power of Congress, by the enactment of the Chamberlain-Ferris Act, to divest plaintiff of his complete and perfect title to the land in question, whch had been held and enjoyed by him and his predecessor for more than thirty-five years, and revest the same in the United States.
It follows that the judgment of the Circuit Court should be reversed and the cause remanded, with directions to overrule defendant’s demurrer to plaintiff’s reply, and for such other and further proceedings not inconsistent with this opinion, as may seem proper, and it is so ordered.
Bevebsed and Bemanded, With Dibeotions.
Beheabing Denied. Costs Taxed.
Dissenting Opinion
Dissenting. — In this action of ejectment wherein the plaintiff claims to be the owner in fee simple and entitled to the possession of the land
Taking the plaintiff at his word, we will examine the question as if the primary disposition of the land were not involved. The tract in question is lot 9 of section 33, township 28 south, range 6 west of Willamette Meridian, in Douglas County, the same being an odd-numbered section. By the act of Congress on July 25, 1866, there was granted to the predecessors in interest of the Oregon and California Bailroad Company for the purpose of aiding in construction of a railroad and telegraph line between Portland, Oregon, and Marysville, California,
“every alternate section of public land, not mineral, designated by odd numbers, to the amount of twenty*334 alternate sections per mile (ten on each side) of said railroad line.” 14 U. S. Stats, at L. 239.
The opening clause of that section of the act is:
“That there be, and hereby is, granted to the said companies, their successors and assigns,” etc.
Provision was made for filing maps of the survey of the road, for withdrawal from sale of the lands included in the grant, for the protection of preemptioners and homesteaders and declaring that other public lands within the limits of the grant should not be sold by the government for less than double the minimum price of public land when sold. No restriction was made as to the price to be charged nor as to the quantity to be sold by the companies if they sold the granted lands or any part thereof. The concluding section 12 of the act is as follows:
“And be it further enacted, That Congress may at any time, having due regard for the rights of said California and Oregon Railroad companies, add to, alter, amend, or repeal this act.”
By the act of June 25,1868, the act was amended so as to extend the time for the completion of the first twenty miles of the railroad and telegraph line to a date eighteen months from the passage of the act and requiring that twenty miles be completed in each two years thereafter and that the whole road should be finished on or before July 1, 1880.
The next legislation affecting the matter was the act of April 10, 1869, whereby any railroad company designated by the legislature of the State of Oregon might file its assent to the act of 1866 one year from the date of the passage of the act of April 10, 1869. The latter enactment concludes thus:
“And provided further, That the lands granted by the act aforesaid shall be sold to actual settlers*335 only, in quantities not greater than one-quarter section to one purchaser, and for a price not exceeding two dollars and fifty cents per acre.” 16 U. S. Stats, at L. 47.
The complaint in this action is in the ordinary form employed in our statutory action of ejectment wherein the plaintiff alleges himself to he owner in fee simple and entitled to the immediate possession of the land and that the defendant is in possession thereof wrongly withholding the same to the plaintiff’s damage in a sum mentioned. The answer admits the possession of the property to be in the defendant but otherwise traverses the complaint. Further pleading, the defendant states that about May 28, 1902, the United States executed and delivered to the Oregon and California Railroad Company a patent to the land in dispute; that the property remained that of the company subject to the terms and conditions of the laws of Congress herein-before recited, until by the act of Congress approved June 9, 1916, 39 U. S. Stats, at L. 218, known as the Chamberlain-Ferris Act, title to the land was reinvested in the United States; that it was afterwards classified as agricultural land and restored to entry under the general provisions of the homestead laws of the United States as modified by that act; that the defendant, as a soldier in the service of the United States in the war with Germany, was given a preferred right of homestead entry by House Joint Resolution No. 20, approved February 14, 1920, in pursuance of all of which on April 13, 1920, he filed his homestead application for the land in the United States land office at Rosebnrg which said application was duly approved and allowed; and that thereafter on September 19, 1920, under said application and
The reply admits the issuance of the patent, the preference right of the defendant to homestead entry, his application to and allowance thereof by the land office and his entry into possession of the land. The affirmative reply goes into detail averring the passage of the laws of 1866 and 1869 and the doings of the companies in constructing the road, examination thereof and issuance of the patent under date of May 28, 1902. In substance, the reply further avers that in 1878 Robert Phipps, immediate predecessor in interest of the plaintiff, was in the actual, exclusive, notorious, adverse possession of the tract involved, claiming title thereto under a chain of conveyances from his predecessors in interest describing and conveying the tract and extending from the year 1863 down to and including a conveyance of said lot made to Robert Phipps by Samuel Ilarkness and wife, dated October 23, 1878, under which Robert went into possession of the lot, continued therein, having same under fence, farming and claiming to own the same against all the world, continuously to March 9, 1912, when by deed of that date he placed the plaintiff in possession thereof in which possession the, plaintiff remained until September 19, 1920, when the defendant entered upon the same against the plaintiff’s will. The defendant demurred to the reply “upon the ground that the matter contained therein is not a sufficient reply to the facts stated in the answer.” The demurrer was •sustained and the plaintiff declining to plead further, judgment was entered dismissing the action at the cost of the plaintiff, whereupon he appealed.
While the suit was pending, Congress passed the act of August 20, 1912, generally known as the Innocent Purchasers’ Act, which declared that all the suits begun in pursuance of the joint resolution of April 30, 1908, were ratified and confirmed and declared to be of the same force and effect as declarations of forfeiture of the United States Congress. Section 3 of the act reads thus:
*338 “That no suits in equity, actions at law, or other judicial proceedings shall be instituted pursuant to said joint resolution approved April 30, 1908, that shall involve any lands sold by the Oregon and California Railroad Company prior to April 30, 1908, unless the same shall be instituted within one year from the date of the approval of this Act: Provided, That this section shall not be construed to apply to any suits in equity heretofore instituted, nor to any parties thereto, nor to any of the lands involved therein, nor to the institution of any further suits in equity, actions at law, or other judicial proceedings relating to any of the lands that are involved in said pending suits.” 37 U. S. Stats, at L. 320.
In Section 4 of the act, authority was given to the Attorney General to compromise suits for the forfeiture of land on the condition that a decree shall be entered adjudging that the lands involved therein have been and are forfeited to the United States, whereupon a purchaser, defendant or defendants, or their successors or assigns, should be entitled within six months after entry of the decree to apply, to purchase all the lands adjudg'ed by said decree to be forfeited at $2.50 per acre, which having been paid, patents should be issued direct to the applicants; but even this privilege was withheld as to the lands not patented to the railroad company and as to all the lands involved in the suit begun as aforesaid, in the United States District Court of Oregon and then pending on appeal, and it is said that the provision of Section 4 should not be construed to apply to any of this land nor to create any rights or privileges whatever in favor of any of the defendants therein. The act concluded with Section 6 reading thus:
“That nothing in this Act contained, nor action taken pursuant to the provisions of this Act, shall be construed as a condonation of any of the breaches*339 of any of the conditions or provisions annexed to any of the grants designated in said joint resolution approved April 30, 1908, nor as a waiver of any of said conditions or provisions, nor as a waiver of any right of forfeiture in favor of the United States on account of any breach or breaches of any of said conditions, nor as a waiver of any cause of action or remedy of the United States on account of any breach or breaches of any of said conditions or provisions, nor as a waiver of any other rights or remedies existing in favor of the United States.” 37 U. S. Stats, at L. 321.
The United States Supreme Court decided the suit already mentioned on June 21, 1915. On June 9, 1916, Congress passed an act of that date known as the Chamberlain-Ferris Act, the preamble of which recites: 1. Condition of act of April 19, 1869, requiring sale of land at $2.50 per acre; 2. Violation thereof by Oregon and California Railroad Company by selling greater quantity than one-quarter section to each purchaser at price greater than $2.50 per acre and by refusing to sell at all; 3. The decree of the United States Supreme Court forbidding further sale until Congress should act; 4. Reservation by Congress in the original act of 1866 of right to alter, amend or repeal the act; 5. Receipt by railroad company of money in excess of $2.50 per acre; and 6. Right of the company to receive $2.50 per acre. The enactment proceeds as follows:
“That the title to so much of the lands granted by the acts [reciting legislation already mentioned] for which patents have been issued by the United States or for which the grantee is entitled to receive patents under said grants * # as had not been sold by the Oregon and California Railroad Company prior to July 1, 1913, be and the same is hereby revested in the United States * # .”
The plain effect of the joint resolution of Congress directing the Attorney General to institute proceedings, coupled with the decision of the United States Supreme Court in Oregon & California R. R. Co. v. United States, 238 U. S. 393 (59 L. Ed. 1360, 35 Sup. Ct. Rep. 908), and the Innocent Purchasers Act (so called) of August 20, 1912, and the Chamberlain-Ferris Act of June 9, 1916, is that the government was committed to the policy of avenging the violation of the granting acts, whether they be in the shape of conditions subsequent or merely covenants held enforceable according to the decision of the United States Supreme Court in the effort to enr force the terms of the act by judicial proceeding as upon condition subsequent. In passing the Chamberlain-Perris Act the government toot advantage of the decree suspending sales of the lands until Congress should adopt appropriate legislation looting to the enforcement of the covenants. That enforcement was not necessarily to be by judicial action. In the beginning Congress had reserved, by Section 12 of the original act of July 25, 1866, the power to alter, amend or repeal the act at any time, having due regard for the rights of the company. Equipped
The reply amounts only to a claim of title even against the government, by adverse possession for a period of ten years. The plaintiff claims benefit under the Innocent Purchasers Act. It will be remembered that the inhibition of the Innocent Purchasers Act against suits to be instituted pursuant to the joint resolution approved April 30, 1908, applied only to lands “sold” by the Oregon and California Railroad Company prior to April 30, 1908; and further, that the section should not apply to any suits in equity theretofore instituted, nor to any of the parties thereto, nor to any of the lands involved therein, nor to the institution of any further suits in equity, actions at law, or other judicial proceedings relating to any of the lands involved in any such pending suits. The reply does not disclose that the land here in question was not involved in such a suit. Unless it was not included in pending suits it would not come within the restriction against suits for forfeiture unless commenced within a year. The intent of the act as disclosed by its terms was not to interfere in any way with pending litigation. Neither can it be said that the reply indicates at all
So far as the sale or purchase is involved in the acts of Congress under consideration, the meaning evidently is that there should be a contract between the railroad company and a purchaser involving a conveyance of the land by the company for a consideration, either paid or promised by the purchaser. Indications to that effect abound throughout the legislation. For instance, in Section 7 of the Chamberlain-Ferris Act, the Attorney General is required to institute suits against any party, including the railroad company, to determine the amount of money received by the company which should be applied and charged against the full value secured to the company. It is not likely that such a law would have been passed if the intention had been that “sale” should include the passing of title by adverse possession. In fact, the legislation recognizes the right of the company to receive $2.50 per acre and requiring it to account for all of the money received; but money is not involved in the acquisition of title by prescription.
“After the withdrawal from sale or pre-emption of the granted odd sections, no interest in the granted lands, adverse to the rights of the company, could be acquired except by special legislative declaration nor indeed in the absence of its announcement, after the general route was fixed.”
So far as adverse possession of government land is concerned, the rule as stated in Sharpe v. Catron, 67 Or. 368 (136 Pac. 20), derived from Boe v. Arnold, 54 Or. 52 (102 Pac. 290, 20 Ann. Cas. 533), is that:
“One claiming title to land by adverse possession for a period of ten years as against all persons, but recognizing the superior title of the United States government, and seeking in good faith to acquire that title, may assert such adverse possession as against any person claiming to be the owner under a prior grant.”
That precept applies only to private persons as between themselves but not to the United States. In other words, for illustration, suppose there are two homesteaders, A and B, each recognizing and seeking to acquire the title of the government to the same tract. Although A is prior in making claim to the land, yet if B succeeds in maintaining his possession for the statutory period of ten years, he will be allowed to prevail over A, but not against the
“The lands could not be disposed of by the company without the consent of Congress, except as each twenty-mile section of the road was completed and accepted by the President, so as to cut off the right of the United States to compel the application of the lands to the purposes for which they were granted or to prevent their forfeiture in case of the company’s failure to perform the conditions of the grant. ’ ’
Great reliance is placed by the plaintiff on the case of Northern Pacific R. R. Co. v. Ely, 197 U. S. 1 (49
Again, the adverse possession relied upon here was adverse only against the railroad company and not against the government. No act of the plaintiff can defeat the rights of the government except in pursuance of its laws authorizing the acquisition of the public domain. The governing principle is that so long as the government retains its hold upon the title to the land, no adverse possession can affect or lessen that hold. It is hornbook law that no one can acquire title against the United States by adverse possession. It is true that a patent was issued to the railroad company for the lands in dispute. At least it is so averred in the reply and this must he taken as true as against the demurrer; hut the issuance of patent, an act of a ministerial officer, cannot confer a greater title than that authorized by the original granting act. All persons dealing with the land are charged with notice of the provisions of the law constituting the grant. The resulting doctrine is that the government is entitled to enforce the conditions of the grant by the means reserved in that grant as against all those who claim under mere adverse possession. As stated in Northern Pacific Ry. Co. v. Townsend, 190 U. S. 267, 271 (47 L. Ed. 1044, 23 Sup. Ct. Rep. 671):
“In effect the grant was of a limited fee, made on an implied condition of reverter in the event that the company ceased to use or retain the land for the purpose for which it was granted. This being the nature of the title to the land granted for the special*348 purpose named, it is evident that to give such efficacy to a statute of limitations of a State as would operate to confer a permanent right of possession to any portion thereof upon an individual for his private use, would be to allow that to be done by indirection which could not be done directly.”
See Kindred v. Union Pacific R. R. Co., 225 U. S. 582 (56 L. Ed. 1216, 32 Sup. Ct. Rep. 780); Union Pacific R. R. Co. v. Snow, 231 U. S. 204 (58 L. Ed. 184, 34 Sup. Ct. Rep. 104).
To sanction the reply would be to say that at the mere behest of a private party the general government can be deprived of its right to enforce by legislative enactment the power reserved in the granting act of 1866. The proposition is not to be countenanced. The government cannot be balked in the assertion of its rights reserved in the original granting act.
Compelled by the rule in ejectment to recover, if at all, on the strength of its own title, the plaintiff’s reply fails to connect him with the paramount estate in the land, that of the United States. He is not within the rule in Sharpe v. Catron, supra, in that he does not recognize the superior title of the United States and does not show that he is seeking in good faith to acquire that title. The defendant conforms to that precept in both particulars according to the answer. Although his complaint avers title in fee simple, in his reply which the general demurrer has attacked, the plaintiff -utterly fails to corroborate his initial pleading. Treating the issue as he presents it, it should be adjudged against him and the decision of the Circuit Court affirmed.